4

From this:

Russian Ambassador to the UN Vasily Nebenzya tells the world body that Israel does not have the right to self-defense under international law in its fight against Hamas because it is an “occupying state.

Is there some sort of an international law that supports this statement?

1
  • I suggest adding some background. Judging by the answers, many are confused about what is occupied, what is not occupied, which territory was attacked (occupied or not) and where the attack came from.
    – Morisco
    Commented Jan 18 at 15:28

5 Answers 5

4

There is an argument that attacks from an occupied territory cannot give rise to self defense under '51 because the nation in question already controls where the attacks come from.

In this case, an argument is made that Jerusalem is occupied, so attacks from unoccupied Gaza came from occupied territory.

As an aside, Jerusalem is not in Gaza, and attacks did not originate from Jerusalem.

3

Here we engage in doublespeak, so common when dealing with Israel - where the terms may have different conventional and legal meaning, and even the latter may be disputed by different sides:

Occupation

From 1967 to 1981, the four areas were administered under the Israeli Military Governorate and referred to by the United Nations (UN) as the "Occupied Arab Territories".
[...]
Despite the dissolution of the military government, and in line with Egyptian demands, the term Occupied Arab Territories had remained in use, referring to the West Bank (including East Jerusalem, which Israel effectively annexed in 1980), the Gaza Strip, and the Golan Heights. From 1999 to early 2013, the term "Occupied Palestinian Territory" was used to refer to territories that the interim governing body of the State of Palestine, the Palestinian National Authority (PNA), controlled in the West Bank and the Gaza Strip.

The International Court of Justice (ICJ), the UN General Assembly, and the UN Security Council all regard Israel as the occupying power for the territories.
[...]
The Supreme Court of Israel has ruled that Israel is holding the West Bank under "belligerent occupation". According to the Sasson Report, the Supreme Court of Israel, with a variety of different justices sitting, has repeatedly stated for more than four decades that international law applies to Israel's presence in the West Bank. However, successive Israeli governments have preferred the term "disputed territories" in the case of the West Bank, and Israel likewise maintains that the West Bank is disputed territory.

Israel unilaterally disengaged from the Gaza Strip in 2005. The UN and a number of human rights organizations continue to consider Israel as the occupying power of the Gaza Strip due to its blockade of the territory; Israel rejects this characterization.

As Arab-Israeli conflict is to some extent a continuation of the proxy-conflict between the USSR and the US, Russia obviously adopts the position that favors Palestinians, but the fact that the State of Palestine state is not universally recognized still casts a shadow on the applicability of the usual conventions regarding occupation. Note also that Russia entertains relations with Hamas, which is considered as a terrorist organization by the US and the EU.

State of Palestine
Note further that the State of Palestine is not equivalent with a Palestinian state - there are different visions of what the latter means, but the former is more or less well-defined (leaving aside the border negotiations):

The areas claimed by the State of Palestine lie in the Southern Levant. The Gaza Strip borders the Mediterranean Sea to the west, Egypt to the south, and Israel to the north and east. The West Bank is bordered by Jordan to the east, and Israel to the north, south, and west. Thus, the two enclaves constituting the area claimed by State of Palestine have no geographical border with one another, being separated by Israel. These areas would constitute the world's 163rd largest country by land area.

In other words, Gaza lies in the State of Palestine, but the territories attacked on October 7 lie in Israel... from the point of view of what is internationally viewed as the State of Palestine, but not from the Hamas point of view (a Palestinian state from the river to the sea, see also Hamas 2017 charter.)

Palestinian National Security Forces vs. Hamas
Israel is not fighting the State of Palestine, but fighting Hamas. Indeed, Izz ad-Din al-Qassam Brigades are not a part of the Palestinian National Security Forces, but rather in conflict with these latter(see Battle of Gaza, Hamas-Fatah conflict). In other words, Hamas is a non-state actor, just like Hezbollah is a non-state actor in Lebanon.

It now seems that, under assumption that Gaza is the occupied territory of the State of Palestine, the International Humanitarian Law gives Israel right to deal with Hamas, regardless of whether we consider the territory occupied or not:

The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.

The occupying power must take measures to restore and ensure, as far as possible, public order and safety.

What can be reproached to Israel is that it takes lightly its responsibility of protecting Palestinians from Hamas, and otherwise assuring their safety. In theory Israel should be defending both from Hamas.

Remark
I foresee an objection that Hamas received majority in 2006 Palestinian legislative elections. The obvious objections are:

  • the elections concern only the political wing of Hamas, but not Izz ad-Din al-Qassam Brigades
  • Hamas was allowed to form the government as a majority party, but not as a sole party; they also defied the authority of legally elected president - in other words, it doesn't make sense to consider legality of Hamas rule in Gaza within the legal framework of the State of Palestine
  • Otherwise Hamas electoral mandate would have expired in 2010 or 2011.
2

The problem, that it is an old case, not a new one, and Israel is on occupied territory of Palestine. According to ICJ Advisory opinion(at 13 July 2004) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory:

Article 51 of the Charter . . . recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State...\

The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence...

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” (Para. 139.)

Also there was resolutions about Palestine state in 242(1967 year) and 181(1947). But for this moment mainly the US, Israel and some other countries do not admit the Palestine state. i hope the text on wiki org is decent, because the text of wiki articles does not correspond to the original text of the UN documents, them looks like bad summary... Can't find the 242 resolution on the UN site in digital text only this one.

Resolution 242:

  1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

Also this map dated 2018 year "status of Israel and the Israeli-occupied territories" from this wiki article. As you see Israel occupied territories of Syria too(Golan to the north). enter image description here

Extra...

About talks like "The simple fact is that Israel withdrew entirely from Gaza in 2005"... Resolution of the UN Security Council Resolution 478:

...2. Affirms that the enactment of the "basic law" by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,22 in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;

So no, according to the UN documents Israel is occupying the Jerusalem city, still and while.

2
  • 6
    The answer is lacking a clear affirmation which follows from the first quote (and to which Nebenzya refers to): the legal case of invalidity of the self-defence cause applied only to building of the wall, and even more narrowly, to the fact that it responds to the potential threat [from outside of the territory it is meant to defend]. In other words, reference to this case (and thus Russia's statement) is totally irrelevant to the current conflict.
    – Zeus
    Commented Nov 6, 2023 at 0:15
  • 1
    @Zeus: indeed, whether Gaza before Oct could be said to be occupied is much more debatable. Related Qs: politics.stackexchange.com/questions/82358/… politics.stackexchange.com/a/82201/18373 Commented Jan 19 at 7:39
-1

This question appears to presume that Russia was presenting an argument. Not everything that is stated in the form of an Aristotelian Rhetoric actually amounts to being such an argument.

Because in most civilized discourse rhetoric is viewed as preferable to imperative-tone demands for action, exercise of power is sometimes coached in the language of rhetoric. This is particularly true in all political debate.

Political speech is designed to motivate an audience. Appeal by logos is only one such method of motivation. Two other famous ones are appeals to ethos and appeals to pathos.

But justifying an unappealable decision, which is not subject to any judicial review, is not an actual rhetorical oratory. It can use previously established practices; it can state rhetorical arguments; but it can also be a simple exercise of political power. In addition to making a decision which disregards agreed-upon rules, if it's not subject to review, it can also use the occasion as an opportunity to make demands coached as something else.


The statement, that Israel has no right to defend itself, is a demand that Israel does not take steps to increase its security through military means. Trying to coach it as an appeal to logos is not designed to convince anyone who is already skeptically convinced that Israel is being asked to accept its defeat.

Those who see this as a demand that Israel accept its defeat already see such a demand as an appeal to pathos.

While those who agree with the statement see it as a statement of allegiance to those who see who see this as an appeal to ethos.


In short, the point of the statement is to convey allegiance to those who already agree with it rather than an attempt to change anyone's mind.

0
-1

Russia is strongly taking pro-Palestinian side and does not think Jews settlements should be where they are (see Reuters):

I think that many will agree with me that this is a clear example of the failed policy in the Middle East of the United States, which tried to monopolise the settlement process

Hence the position of Russia is that Jew settlements under attack are at the wrong place starting from and they must step back away (not fully obvious how far) rather than attempting to defend themselves at they present positions.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .