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Blog7th December 2009Presentation at Seminar on Operation Cast LeadMonday 7 December 2009 Good afternoon What I propose to talk about today is what everyone else - the Goldstone Commission, Amnesty International, and Human Rights Watch have avoided: the legality of the initial use of armed force by Israel in Operation Cast Lead. Under international law the use of armed force is prohibited save in two instances: where it is authorized by the UN Security Council and when it is an act of self-defence as provided for by Article 51 of the UN Charter. In January earlier this year two dozen international lawyers signed and published a letter in the Sunday Times in which they argued that Israel's assault on the Gaza Strip was not in conformity with the law of self-defence and amounted to an act of aggression. The letter was drafted in response to the claim made by the Israeli Ambassador to the UN that Israel was acting in accordance with its right of self-defence under the UN Charter. This is what they wrote and I shall read it out: The signatories of the letter included Sir Ian Brownlie QC, formerly Chichele Professor of Public International Law at Oxford University and a Barrister at Blackstone's Chambers who is one of the world's leading experts on the law on the use of force. UN Special Rapporteur Richard Falk, Professor Emeritus at Princeton University, and Christine Chinkin a Professor at the LSE, also signed. In an article that I wrote which is to be published in the next edition of The Palestine Yearbook of International Law, and which you should have copies of, I argued that the signatories to the letter were right in their legal assessment of the situation. First, Article 51 UN Charter only applies to inter-state disputes and not to a situation in which one state is controlling territory under the law of belligerent occupation. As the preamble to UN Security Council resolution 1860 which called for a full withdrawal of Israeli forces from Gaza, noted: "The Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state". Second, there is the question as to whether Article 51 can apply to a conflict between a state and a non-state actor. Although some commentators have argued that in the aftermath of 9/11, attacks by non-state actors would fall within the ambit of Article 51, the International Court of Justice, the principal judicial organ of the UN, did not agree in its Wall advisory opinion. It came to the conclusion that Article 51 only recognises the existence of an inherent right of self-defence in the case of armed attack by one state against another state. Attacks from Hamas are not imputable to another state. Third, Article 51 UN Charter only provides for a right of self-defence if an armed attack occurs against a Member of the United Nations. The question then is, what is an armed attack giving rise to a right of self-defence? According to a long line of jurisprudence only attacks of a high threshold would qualify to trigger the right of self-defence under Article 51. In the Nicaragua case, the International Court of Justice said that an armed attack in order to fall within the scope of Article 51 would have to be "of such gravity as to amount to an actual armed attack conducted by regular forces". The Court's jurisprudence in Nicaragua was upheld in the case concerning Oil Platforms where it said that in ascertaining whether an armed attack had taken place it was necessary to distinguish "the most grave forms of the use of force from other less grave forms". The ICJ maintained this approach in the Uganda case, where it saw "no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces". This presupposes that the Court would have only examined those attacks that were of a significant magnitude if it had decided to examine the contentions of the parties to that case. Likewise, the Eritrea-Ethiopia Claims Commission in their Partial Award of December 19, 2005 before the Permanent Court of Arbitration said that "[l]ocalized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter". In other words, even an armed attack that leads to casualties might not necessarily trigger the right of self-defence under Article 51. It could therefore be questioned, as the authors of the Sunday Times letter did, whether the rockets attacks which led to few or no injuries in the immediate moments preceding the initiation of operation cast lead would qualify as an armed attack. Fourth, There is the question of proportionality. In the Oil Platforms case, in which the International Court of Justice had to assess the proportionality of an Iranian attack on a US military facility in the Persian Gulf, the Court said it could not "assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation". In other words, when assessing Israel's claim to self-defence and related questions of proportionality one must be mindful of the deaths caused by Israel's own actions in the Gaza Strip prior to the escalation of hostilities. As the signatories to the Sunday Times letter noted in the three years following Israel's redeployment of its troops from Gaza, the Israeli army killed over 1,200 Palestinians which included over 200 children. Moreover, the vast majority of those killed in Operation Cast Lead were civilians. As the Czech Presidency of the EU noted in an official statement which they released on 4 January, "even the undisputable right of the state to defend itself does not allow actions which largely affect civilians". Fifth, Operation cast lead was manifestly unnecessary. As the Arab League's Independent Fact-Finding Committee that was chaired by John Dugard, noted in its report No Safe Haven "Israel's response was not an immediate attack in response to the rockets. In this respect it failed to meet the requirements laid down in the famous Caroline case, according to which it is necessary "to show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation". Israel had endured rocket attacks for over a year before it acted, which makes it difficult to contend that there was any immediate necessity for action in self-defence. Rather, it seems, that Israel's actions were punitive and designed to prevent further rocket attacks". It is therefore apparent that as the signatories to the Sunday Times letter noted, Israel's plea of self-defence does not stand up to scrutiny. But this begs the question, if Israel's actions did not amount to self-defence, and if it could not be justified as a matter of law on any other ground, then what did Israel's actions amount to? As I argue, and as the signatories to the Sunday Times letter argued, the use of force on the scale of operation cast lead that does not have any legal justification, amounts to aggression. In this connection, Article 1 of the UN's Definition of Aggression, which Judge Schwebel in the Nicaragua case said amounted to customary international law, provides: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations ... It is significant that a period does not appear after the words "another State" in Article 1 of this Definition. Instead, its drafters explicitly recognised that whilst aggression could only be committed by a state, the entity that was subject to an act of aggression need not necessarily be a state. Indeed, Article II of the 1972 draft proposal for the Definition of Aggression submitted by the UK, the US and several other Western states provided that any act which would constitute aggression by or against a State likewise constitutes aggression when committed against any State or other political entity delimited by internationally agreed lines of demarcation and not subject to its authority (which would apply to Gaza if we accept the Israeli contention that it is no longer the occupying power there). The reason why the word "state" was retained in Article 1 of the Definition was to ensure conformity with the language used in the UN Charter. However, whilst states are the primary subjects that are a party to that treaty, the Charter recognises that there are political entities other than states, subject to its provisions such as former mandates, trusteeships, and Non-Self-Governing Territories. It is clear from a brief purview of state practice that geographic and political entities entitled to self-determination, or whose legal status is controversial due to a lack of recognition from other states, can be subject to acts of aggression. These include: • The complaint of aggression upon South Korea which was subject to an attack from North Korea on June 25, 1950 In all these cases the question of aggression was raised in debates at the UN Security Council and this was not legally disputed by any other state. These precedents afford further scope for the argument that a territory which is even under the effective control of another state, whether that territory is annexed, placed under belligerent occupation, or subject to any other form of external control, may also be subject to an act of aggression. Operation Cast Lead was not merely another Israeli "incursion", a "targeted killing", or an attempt to "reoccupy" the Strip. It was a large-scale invasion on the level of Israel's assault on the Lebanon in the summer of 2006, in which Israel's air force, army, and navy coordinated their attack in unison. All the paraphernalia of a full-scale war were used in Gaza, including cruise missiles launched from sea, missiles fired from helicopter gunships, followed by a land invasion which included the entry of tanks and troops into the Strip, triggering Articles 3 (a), (b), (c), and (d) of the 1974 Definition of Aggression. Moreover, the Gaza Strip had also been subject to a naval and land blockade for almost two years prior to the initiation of Operation Cast Lead, a blockade that is still in effect. To conclude, Israel's military assault on the Gaza Strip was not an act of self-defence. It was not sanctioned by the UN Security Council. It was therefore unlawful and due to its scale and gravity amounted to an act of aggression. Thank you for listening. Question & Answer I was asked a question by Clare Short M.P. as to whether my analysis of the illegality of Operation Cast Lead could be compared to NATO operations in Afghanistan. I pointed out that the NATO operations were endorsed by both the UN Security Council and NATO which distinguishes it legally from the Israeli action.
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