Does Israel have a ‘right to self-defence’ against Gaza?

By Norman Finkelstein and Jamie Stern-Weiner 

Source: redpepper.org 

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On 1 June 2018, Razan al-Najjar—a 21 year-old paramedic—was shot dead by an Israeli sniper in Gaza while providing medical treatment to wounded protestors. She became the 119th Palestinian killed in Gaza since mass demonstrations against Israel’s siege began on 30 March. During the same period, Israeli forces shot more than 3,600 protestors with live ammunition, a figure which Israel’s preeminent human rights organisation B’Tselem has characterised as a ‘mindboggling number of casualties’. The onslaught has left Gaza’s strained healthcare system on the verge of collapse.

To justify the bloodletting, Israel and its apologists invoked Israel’s ‘right to self-defence’. Firing on the protestors in Gaza was the only means — so this argument ran — by which Israel could prevent them from breaching Israel’s border. Against this, United Nations officials and human rights organisations alleged that Israel, in deploying live ammunition against protestors who posed no imminent threat, was guilty of ‘excessive’ or ‘disproportionate’ force. In this vein, the UN Special Coordinator for the Middle East Peace Process responded to the murder of al-Najjar by warning that ‘Israel needs to calibrate its use of force’.

This line of criticism fundamentally accepts Israel’s premise that it has a ‘right to self-defence’ against the people of Gaza. Allegations of ‘disproportionate’ force implicitly legitimise Israel’s use of ‘proportionate’ force, while allegations of ‘excessive’ force implicitly legitimise Israel’s use of ‘moderate’ force. In truth, however, Israel has no right to use any force against the people of Gaza. It forfeited that right when it imposed an illegal siege and an illegal occupation.

Under international law, an administering power has no right to use force to frustrate a self-determination strugglewhereas a non-State entity is not debarred from using armed force in pursuit of its right to self-determination. That is to say: international law does not prohibit Palestinians in Gaza from deploying armed force in the course of their internationally validated self-determination struggle, whereas it does prohibit Israel from forcibly suppressing that self-determination struggle. The organisers of the Gaza demonstrations made a strategic decision in favour of nonviolence, but this decision was not required under the law and Israel would have been no more entitled to use force against the demonstrators in Gaza had they been armed.

It might be objected—albeit not by Israel, which denies that it occupies Gaza—that Israel is a belligerent occupier in Gaza and therefore has the right under the Fourth Geneva Convention to use force to maintain public order. But, first, under this same Convention, Israel’s protracted siege constitutes a ‘collective punishment’ established ‘in flagrant violation of international law’.

Israel cannot selectively cite the Fourth Geneva Convention to legitimise its use of force even as it ignores the obligations imposed on the occupying power by that same Convention to safeguard the welfare of the occupied population. Moreover, second, just as the International Court of Justice ruled in 1971 that South Africa’s refusal to negotiate in good-faith had rendered its occupation of Namibia illegal, so Israel’s refusal to negotiate in good-faith on the basis of international law has rendered its occupation of the West Bank and Gaza illegal. It has therefore forfeited its rights as a belligerent occupier.

Israel has maintained an illegal occupation of Gaza for more than 50 years. It has subjected Gaza’s civilian population to an illegal siege lasting more than a decade. Israel’s claimed ‘right to self-defence’ amounts, in these circumstances, to the right to enforce these illegal regimes. Until and unless Israel brings an end to the siege and the occupation, its one and only ‘right’ vis-à-vis Gaza is to withdraw.

If the contrary view—that Israel has a right to use force to prevent Gazans from breaching the perimeter fence—is widely accepted, this is because pervasive dehumanisation of the people of Gaza, on the one hand, and a fog of legal technicalities, on the other, have together obscured the true character of the situation.

Israel presents the fence surrounding Gaza as a ‘border’ and the protestors who seek to cross it as infiltrators. But as the executive director of B’Tselem has noted, the term ‘border’ is in this context thoroughly misleading. Gaza is not a state. Gaza is a ‘prison camp’ (former UK Prime Minister David Cameron), a ‘toxic slum’ (UN human rights chief Zeid Ra’ad al-Hussein), a ‘ghetto’ (Ha’aretz editorial board). Above 70 percent of the inmates of this prison camp are refugees, while more than half are children under the age of 18.

Israel’s medieval-like siege has all-but extinguished Gaza’s economy and reduced its population to beggary. More than that, the very viability of the territory for large-scale human inhabitation has been placed in jeopardy. As the Near and Middle East director for the International Committee of the Red Cross put it, ‘Gaza is a sinking ship’. In the professional assessment of United Nations officials, Gaza has become physically ‘unliveable’.

Most alarming is that 96 percent of Gaza’s tap water is now unfit for human consumption while its only freshwater aquifer is on or past the threshold of irreversible damage. Sara Roy, the leading authority on Gaza’s political economy based at Harvard University, explains what this means in practice: ‘innocent human beings, most of them young, are slowly being poisoned by the water they drink’.

The lawyers debating whether or not Israel used ‘excessive’ force to prevent Gazans from escaping their ‘prison camp’ have lost sight of the human stakes in Gaza. The only morally sane questions presented by the situation in Gaza are these. Does Israel have the right, in the name of ‘self-defence’, to forcibly encage the one million children of Gaza in a ‘toxic slum’? Don’t the people of Gaza have the right to escape a ‘prison camp’ in which conditions have been rendered physically ‘unliveable’? Or are they obliged to stay silent and die?

Norman G. Finkelstein is the author of many books on the Israel-Palestine conflict, most recently Gaza: An Inquest Into its Martyrdom (University of California Press, 2018).

Jamie Stern-Weiner is the editor of Moment of Truth: Tackling Israel-Palestine’s Toughest Questions (OR Books, 2018).

https://zcomm.org/znetarticle/does-israel-have-a-right-to-self-defence-against-gaza/