Gaza: Not a war of self-Defense

From Victor Kattan's analysis in the Jurist:

Article 51 of the UN Charter provides that UN members have the inherent right of individual or collective self-defence if an armed attack occurs. The question then is, what is an armed attack?

To the non-specialist, the word “armed attack” might signify any attack. But under international law the issue is not so straightforward. If, for example, it were the case that a single shot fired across a border amounted to an armed attack for the purposes of Article 51 of the UN Charter then states could invoke their “inherent” right to self-defence and go to war. This could cause endless instability in international affairs. It could also lead to accidental wars. One has only to think of the tensions between India and Pakistan, China and Taiwan, North and South Korea, Greece and Turkey, Russia and Georgia to realise the danger. Moreover, if the threshold for an armed attack is low then states could effectively manufacture a war. All they would need to do is provoke a border incident, allege that they had been attacked first, and then send in the troops.

In the Nicaragua case the International Court of Justice drew a distinction between the “scale and effects” of a particular military operation that could be classified as an armed attack as opposed to “a mere frontier incident.” An armed attack carried out by “armed bands, groups, irregulars or mercenaries” the Court said, 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.” Even cumulative attacks, the Court said, might not necessarily amount to an armed attack for the purposes of Article 51 of the UN Charter.

As regards the Israel-Palestine conflict we are not dealing with a single shot fired across a border. We are faced with a decades-old territorial dispute. Assuming that the right of self-defence for the purpose of Article 51 of the UN Charter can apply to attacks initiated by non-state actors like Hamas, are the rockets fired by its military wing into southern Israel of such a “scale and effect” that they amount to an armed attack as opposed to a border incident? And are they of “such gravity” that they amount to an armed attack conducted by a regular army? If so, how is one to quantify rockets attacks for the purposes of an armed attack? By the numbers fired? Or by the number of deaths they cause? Does a rocket fired into an open field or into an empty building amount to an armed attack? What if it causes damage or injures or kills someone?

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