Israel’s “right to defend itself” is invoked constantly by its supporters, but international law says Israel cannot simultaneously occupy Palestinian land and attack it as a “foreign” threat, or treat those resisting as enemy combatants.
AN ISRAELI SOLDIER AIMS AT PALESTINIAN PROTESTERS DURING A DEMONSTRATION AGAINST THE EXPANSION OF JEWISH SETTLEMENTS, ON JUNE 16, 2023, IN THE WEST BANK VILLAGE OF BEIT DAJAN, EAST OF NABLUS. (PHOTO: MOHAMMED NASSER / APA IMAGES)
MITCHELL PLITNICK, MONDOWEISS, JULY 6, 2023
As Israel was invading and bombing Jenin this week, AIPAC was pumping out a simple message: “Israel is right to protect its citizens from terrorism.” Others echoed the same line, often including the false theory that Iran—which supports and backs Palestinian armed militant groups such as Hamas and Islamic Jihad—actually controls the Palestinian resistance, implying, ridiculously, that but for Iranian malfeasance, Palestinians wouldn’t be fighting against Israel’s occupation.
Israel’s message from its own leaders makes the same case, with slightly different language. Opposition leader Yair Lapid, for example, put it this way: “”Our children are being slaughtered, and Israel has every right on earth to defend itself, and we from the opposition support the Israeli defense forces and the Israeli government on this matter.” Lapid made that statement in English, meaning it was the version of Israel’s message that was meant for foreign audiences, particularly Americans.
Members of Congress were also sure not to miss an opportunity to support the killing of Palestinians. There was Josh Gottheimer, the New Jersey Democrat: “Israel has every right to defend itself, especially as the PA loses control of Jenin, which has become a hub of Iranian-backed terrorist activity in the West Bank.”
And there was Florida Democrat Debbie Wasserman Schultz: “Israel has the unequivocal right to defend itself against perpetrators of violence and terrorist attacks.” And of course, several Republicans chimed in with similar support.
The so-called “progressive Democrat” Ritchie Torres of New York would never let such an opportunity to pay back AIPAC and similar groups for their largesse. He tweeted, “The Palestinian Authority has all but abandoned Jenin, leaving behind a power vacuum that has been filled by terrorists. In the past six months, those terrorists made Jenin a launching pad for more than 50 shooting attacks against Israelis. Israel is responding with a counterterrorism operation aimed at surgically removing these terrorists and their terror infrastructure. There’s a word for this: self-defense, which is the right of every sovereign country, including Israel.”
The mantra of Israel’s “right to defend itself” is repeated incessantly and rarely questioned. Even Palestinians and Palestine advocates are often reluctant to debate the “right to self defense.” From the beginning of Israel’s existence as a state, this justification has been used to deny Palestinians the right to their property, to their homes, and to their freedom. It was used to justify the theft of Palestinian property in the wake of both the 1948 and 1967 wars, and to excuse the imposition of martial law on Palestinians in side the new state for nearly two full decades.
The mantra of Israel’s “right to defend itself” is invoked at virtually every turn not only by Israel and its supporters, but also by friendly governments in the United States, Europe, Canada, Australia, and other places.
So here’s a news flash: Israel actually does not have the right to defend itself in terms of the West Bank and Gaza. It has the right to protect its citizens, but it does not have the right to use overwhelming military force against people under its occupation.
Israel may take measures to protect its citizens—one of the most obvious would be to desist from putting them in harm’s way by planting settlements in the middle of occupied territory. It may also protect them using the police powers an occupier must have, powers which, it must be emphasized, are primarily in place to maintain law and order and protect the safety of those under occupation for whom Israel is ultimately responsible. It cannot sign an agreement like the Oslo Accords and thereby remove that responsibility for the welfare of people under occupation from itself. Palestinian Authority or no, the occupier remains responsible for the welfare of the people under occupation.
It can feel counterintuitive to confront this reality of international law and norms. When it was first pointed out to me, I was shocked, and in fact, pushed back against the notion. Yet international law is clear on this point. For the full explanation, I refer you to this remarkable article by Palestinian legal expert and scholar Prof. Noura Erakat, which lays out the case in clear, meticulous language. It is an indispensable read for anyone advocating for Palestinian rights.
The short of it, though is that Israel treats Jenin, indeed the entire West Bank and Gaza, as enemy territory. In Gaza, Israel actually formalized that label in 2007, designating the Strip “enemy territory.” It can’t do the same in the West Bank because of the settlements dotted throughout that territory, and the attack this week on Jenin shows it doesn’t need to. The designation of Gaza was part of Israel’s attempt to convince the world that, despite controlling Gaza’s eastern and northern land border, coordinating control of its southern border with Egypt, controlling the sea on Gaza’s west, and controlling Gaza’s airspace, Israel’s decision to withdraw its troops and settler from inside the Strip and turn it into the world’s biggest open air prison meant that Gaza was no longer occupied.
But Israel found that it didn’t matter. They could fire missiles at Gaza, murder children on its beaches, and gun down people protesting on their side of the border with absolute impunity, just as it would in time of war, and could do all of that whether or not anyone accepted the argument that Gaza was no longer occupied, an argument most of the world rejected. Israel is now demonstrating that same, elevated level of impunity in the West Bank, further diminishing the already meager restraint there has been on Israel’s use of overwhelming force.
As Prof. Erakat explained, “A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is ‘foreign’ and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law.”
Israel’s defenders elide this point by creating an alternative reality. One piece of that reality is that there is a Palestinian government that was created by the Oslo Accords and which governs parts of the West Bank to varying degrees. In the designated Area A, which includes Jenin, that governance is argued to be the same as any government.
That’s simply not true, as the repeated incursions, not to mention the regular closures and presence of soldiers and checkpoints around Jenin make clear. Israel, which has never declared its own borders, occupies the entire West Bank. It collects, and often withholds, taxes from the PA, while Palestinian security forces are focused primarily on coordinating with Israel to combat militants—in other words, Palestinian security is primarily set up to protect Israelis, and, secondarily, the increasingly illegitimate and authoritarian rule of the Vichy-like Palestinian Authority, not to protect ordinary Palestinians.
Yet Israel then claims it has a right of “self-defense.” Of course, the fact that such a right does not exist does not mean it must sit idly while its citizens are attacked. But, again quoting Prof. Erakat, “As long as the occupation continues, Israel has the right to protect itself and its citizens from attacks by Palestinians who reside in the occupied territories. However, Israel also has a duty to maintain law and order, also known as ‘normal life,’ within territory it occupies. This obligation includes not only ensuring but prioritizing the security and well-being of the occupied population.”
There is a distinction between the right—indeed the responsibility—to protect the people under its authority, citizens and occupied people alike; and the right of self-defense in war or something akin to it. While Israel’s apologists like to characterize Israel-Palestine as a war, it is not. In the West Bank and Gaza it is an occupation. In an occupation, the occupied people have a right to resist, including armed resistance, although doing so via arms means those individuals participating are combatants and not protected civilians.
Not only is Israel shunning its responsibility to protect those under occupation, it is willfully putting its own citizens in danger by using them as a means to enhance and solidify its occupation and by permitting civilians to take up arms and commit acts of violence against the occupied people. You can’t, on the one hand, maintain a draconian military occupation which, by definition, conveys the right of resistance to the occupied and then, on the other hand, claim that you have the right to use overwhelming military force against the occupied people and consider those people an extra-territorial enemy. You get to have your cake or to eat it, not both.
Former UN Special Rapporteur for the Occupied Palestinian Territories John Dugard explains the distinction between a state acting in self-defense and one using force to maintain a military occupation. In Israel’s case, its efforts to slowly annex the territories it occupies instead of working toward a withdrawal and ending of that occupation, as it is legally obliged to do, mean that the occupation itself is illegal. Nonetheless, it is still subject to the international laws of occupation.
As Dugard puts it, “A state seeking to enforce its occupation, like a state acting in self-defense, must comply with international humanitarian law. This includes respect for the principle of proportionality, respect for civilians and the drawing of a distinction between military and civilian targets, and the prohibition of collective punishment. Both Israel and Palestinian militants are obliged to act within the confines of these rules.”
Both Israel and Palestinian militant groups violate the principle of distinction, but Israel has a much greater capacity to avoid this, and fails to do so, despite repeatedly claiming it makes every effort to comply. Israel also routinely violates the principle of proportionality and collective punishment which Palestinian groups, for the most part, are not capable of violating due to their vastly more limited military capabilities.
The claim to self-defense sounds right. We feel like even if someone is in the wrong in a dispute, if that person is confronted by violence, they have the right to respond and defend themselves. But occupying states, or states engaged in armed conflict, are not the same as individuals. Occupying powers, in particular, have a responsibility to maintain law and order for all under their control and to work to end that occupation. These guidelines are meant to work to minimize the causes of violence, and, to the extent they fail, the occupier has police powers to address this. But it does not have right to treat those resisting an illegal and brutal occupation as enemy combatants. Nor does it have the right to treat the areas under occupation as enemy territory as if in a war. And it really doesn’t matter how many racist presidents, secretaries of state, or members of Congress say otherwise.
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