The Myth of Israel’s “Right to Self-Defense”

There is a danger when using the “right to self-defense” argument. Jesus warned that “all those who take up the sword shall perish by the sword” (Matt 26:52). Using violence to combat violence usually creates more violence.

The question I wish to address, however, is whether or not Israel’s assault on Gaza is actually justified. Time and time again, we are told that Israel’s assault on Gaza is justified because a nation has the right to defend itself. But is that true?

Well, kinda, but kinda not.

NB: Last month I wrote a post Debunking Myths related to the war on Gaza. This post addresses another common assumption.

NB: I might add that history will likely judge Israel’s actions, along with its co-belligerents—the US and its Western allies—as having transcended any supposed “right” to self-defense.

Yet few are asking the more fundamental question: Does Israel even have the right to self-defense with respect to its assault on Gaza?

Of course, few have dared to question Israel’s right to self-defense for fear of the dreaded accusation of “antisemitism.”

NB: Antisemitism is real and must be condemned—which, at Determinetruth, we have repeatedly done on this post, livestreams, and podcasts. I do, however, take exception to the use of antisemitism as a means of damning the other and shutting off all constructive dialogue. And I don’t believe that this is helpful to the Jewish people. Criticism of Israel is no more antisemitic than criticism of the US is anti-American.

In addition to the concern of being charged with antisemitism, denying Israel’s “right” to self-defense is not good optics. After all, Israel suffered a heinous terrorist attack on October 7, 2023, on its own soil. An attack that took the lives of hundreds of its own people, including civilians, and entailed the taking of over 250 hostages.

The problem with the question of Israel’s right to self-defense lies in the complexity of discerning what one means by “self-defense.”

For example, if someone came into my home (God forbid) and began killing some member of my family and kidnapping others, as well as looting and destroying my property, I would not only have the right to defend myself and my family but a moral responsibility.

NB: As a proponent of non-violent resistance, the way I might respond might look quite different from others.

Within this context, one may confidently claim that Israel had the right to self-defense on October 7.

But that’s not the issue being debated. The real question has to do with whether Israel has the right to go to their attacker’s home—in this case, Gaza—and retaliate with an overwhelming force that is exponentially greater than that which they suffered on October 7?

Or, using the analogy of my neighbor’s attack on my home, we might ask if I would be morally justified in entering my neighbor’s home to kill, starve, and maim them in retaliation?

I say, no.

Does the Law of Proportionality apply?

Even if we were to grant the claim that Israel has the right to self-defense so that they are justified in seizing Gaza, international law requires that the conduct of that war must proceed according to the principle of proportionality.

This is where many critics of Israel and the IDF have taken their stand when it comes to Israel’s “right” to self-defense.

They contend that Israel’s right to self-defense does not legitimize the killing of 60,000+ and the wounded of hundreds of thousands, most of whom are women and children—noncombatants—nor does it permit Israel’s use of starvation as a weapon of war, nor their efforts to destroy virtually the entire infrastructure of Gaza: leaving the Strip on the brink of uninhabitability.

Israel’s defenders respond by claiming that Hamas poses an existential threat to Israel and must be defeated at all costs, rendering Israel’s actions jus in bellum (right to go to war).

This is where my analogy seems helpful. Israel’s defenders are essentially claiming that since the only way for my family to be safe is for us to completely destroy our neighbor’s home, and either kill them or force them out of the neighborhood.

Human shields

The defenders of Israel also claim that Israel’s annihilation of Gaza is justified because they are aiming for Hamas insurgents who embed themselves in hospitals and among civilians.

Israel’s critics respond by noting that Israel has failed to provide sufficient evidence to substantiate the human shield allegations.

But I suggest that even if such allegations were factual, the law of proportionality still applies. Israel does not have the right to destroy Gaza’s entire medical system—critical for civilians during a time of war—because Hamas insurgents are embedded there any more than local authorities can blow up a school because there is a gunman inside.

Returning to my analogy, when it comes to the right to defend one’s family, property, and home, there is no denying that Israel had every right to defend its citizens on October 7. But what about my right to destroy my neighbor’s house or Israel’s right to attack Gaza?

Hamas started this war

Herein lies the root of the problem and the crux of the “right to self-defense” argument. Some have noted that a state’s right to self-defense (Article 51 of the UN Charter) only applies to attacks by state actors. Since Gaza is an occupied people and not an independent state, then Israel does not have the legal right to attack Gaza because Gaza is not a state actor but is a people under military occupation.

The problem here is that this “loophole”—i.e., the fact that Israel cannot use the self-defense clause of Article 51 of the UN Charter, because they were not attacked by another state—actually muddies the water more than is often realized.

Namely, if one were to argue that Gaza is not a state actor and, therefore, Israel cannot invoke Article 51 and its right to self-defense, then, by the same reasoning, Israel cannot be deemed to be in violation of the UN Charter because its act of belligerence was not against another state.

But, for the sake of those of us not formally trained in international law, my neighbor analogy suffices. Placing this conflict in terms of a dispute, albeit a very violent one, between neighbors, may offer some clarity.

On the one hand, the neighbors who committed the attack against me and my family should be held accountable for their crimes against us. Of course, a judge and jury, upon learning of the history of my family’s (i.e., Israel’s) injustices against them, may well lean a bit lighter on their punishment.  My neighbors (i.e., Hamas), however, would not be innocent.

At the same time, any acts that my family and I (Israel) commit against them (Hamas/Gaza) as an act of retaliation must also be criminalized. Although I would be justified in defending my family and myself during their attack on us, I would not be justified in attacking their home.

Do the Palestinians have the “right to self-defense”?

This is what befuddles me when it comes to Israel’s assault on Gaza and the “self-defense” argument.

Those who defend Israel’s assault on Gaza as a justified act of “self-defense” do not apply the same right of “self-defense” to the Palestinians.

But if Israel has the right to “self-defense,” including the right for the IDF to enter Gaza, starve 2.2 million people, kill 60,000+, injure hundreds of thousands more, and destroy virtually the entire infrastructure of the Gaza Strip, then do not the people of Gaza have that same right of “self-defense”?

Neither has the “right” to self-defense

My argument here is that neither has the right to self-defense if that entails taking the offensive against the other. Gaza is not a state actor. The Palestinians are an oppressed people.

Both sides certainly have the right to defend themselves when resisting an aggressor.

There is one more caveat, however, that is often overlooked.

International law does give the Palestinians the right to self-determination (Article 1.2) and it forbids an occupying power from using force against those it occupies (Article 1.4).

Hence, the right to self-defense certainly applies to the Palestinians.

In the next post, I hope to address the notion that Hamas started the war . . .

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