Occupation and Self-Defence in the Case of Palestine

[Mohammad Mishal is a graduate of the Advanced Master in European and international human rights law at Leiden University and has most recently worked as Academic Coordinator of the same programme]

Introduction 

In a 2021 article, Dapo Akande and Antonios Tazanakopoulos posit that when a state’s territory is occupied by an unlawful armed attack, the occupation continues the attack, allowing the injured state to retain a continuous right of self-defence under Art.51 of the UN Charter. This challenges the idea of a ‘frozen’ conflict extinguishing the right to self-defence. In this post I will try to apply this lens to the context of Israel’s continuous occupation of Palestinian territories and whether it could support a legal basis for a Palestinian right to self-defence. Issues of Palestinian statehood, the role of non-state actors, and the right to self-determination present challenges to this idea. 

The article talks specifically of disputes where one state has invaded and occupied the territory of another, triggering their right to self-defence. So long as the occupation continues, the attack does not truly cease. To support this claim, the authors cite the definition of aggression adopted in the UNGA Resolution 3314 which specifies that military occupation flowing from an armed invasion constitutes aggression. An oft-cited example is that of the Falklands War. The British response to Argentina’s occupation took 23 days but was widely deemed lawful. This only stands to reason if Argentina’s occupation was considered a continuous armed attack. The article argues that there is no length of time that transforms an illegal occupation into a peaceful dispute. The right to self-defence does not lapse with just time. 

The Case of Palestine 

Israel’s occupation of Palestinian territories began as a result of an armed conflict in 1967. The UNSC in Resolution 242 affirmed the “inadmissibility of the acquisition of territory by war” and called for Israeli withdrawal. Since then, several UN Resolution and ICJ Advisory Opinions have confirmed that the West Bank and Gaza are occupied territory and Israeli presence therein is unlawful. This prolonged military occupation indicates that an armed attack in the sense detailed above has occurred and is ongoing. Under this reading, the Palestinian people (and the putative State of Palestine) are in the position of an attacked state whose lands remain under foreign occupation. If the 1967 war can be seen as initiating this occupation, one can argue that Palestinians retain a right to self-defence in recovering their territory. This would mean that a military operation aimed at ending their occupation would not be the beginning of a new conflict, but rather the belated exercise of self-defence against a continuing attack. 

The right to self-defence under Art.51 accrues to states. The Palestinian situation tests the limits of this paradigm given the contested status of statehood. However, the international community has on several occasions affirmed the right of a people to fight their occupation. One could argue that resistance to Israeli occupation is the exercise of an inherent right of self-defence. A putative Palestinian state would have the same right as any UN member to defend itself from aggression. Alternatively, we also see the Additional Protocol I to the Geneva Conventions treat armed conflicts against colonial domination or foreign occupation as international armed conflicts, implicitly acknowledging the legitimacy of their struggle (Art1(4)). Scholars like Richard Falk emphasize that a right to armed resistance stems from Israel’s denial of Palestinian self-determination and is conditioned on the pursuit of legitimate aims. 

The State of Palestine, although recognized by most UN member states, has several attributes of sovereignty under contested status. Does it qualify as a “state” under attack? One could argue that it is so, since the lack of sovereignty over its own territory is a result of the occupation at issue (and not a lack of statehood). When Kuwait was under Iraqi occupation, there was little doubt over whether it still retained statehood. The 2024 ICJ opinion on the consequences of the occupation reaffirms Palestine’s territorial integrity, treating it as a composite whole that is not Israel’s to claim. One could then argue that Palestine’s status now is similar to that of a state under foreign belligerent occupation. One must also contend with the reality that the Palestinian Authority does not claim to be exercising a right to self-defence through use of force. This is primarily the work of non-state actors, raising questions of their legitimacy in invoking rights accruing to the state. Art.51 was conceived for inter-state use of force. If the NSAs in the Palestinian case are treated akin to a national liberation movement representing an occupied people, then by analogy it could claim to act in exercise of the people’s right to self-defence. Historically, it is the PLO that was recognized by the UN as the sole legitimate representative of the Palestinian people. In the Gaza strip, Hamas has previously gained democratic legitimacy as acknowledged by the UN Special Rapporteur. It has also fought Israeli incursions militarily and framed itself as a liberation force, complicating the question of who “speaks” for Palestinian self-defence. A non-state actor asserts a ‘right’ to use force that the designated authorities have forsworn. One might argue that legitimacy can stem from the people rather than state institutions, as was the case in several instances of national liberation. If Gaza is not recognized as part of a sovereign Palestinian state, then the conflict in the strip is in a sui generis grey zone in jus ad bellum. There might, then, be a plausible argument for extending self-defence rights to the Palestinian people in the extraordinary context of prolonged occupation and denied statehood.

The right to self-determination is a core principle underpinning the legal justification for armed struggle. The General Assembly’s resolutions on Palestine have repeatedly stressed that continued occupation violates self-determination. In the 70s and 80s, there was explicit acknowledgement of the Palestinian movement as a liberations struggle; Antonio Cassese observes that the UNGA in 1977 explicitly granted “license to use force.” This suggests that the use of force against illegal occupation would be regarded as the continuation of an inherent right. The struggle for self-determination is, in some ways, the people’s counterpart to a state’s right to self-defence. It is a resort to force to remedy an unlawful situation when all else fails. 

National liberation movements are still expected to adhere to certain standards which imply respect for humanitarian law and basic norms of conduction. Any recourse to force – even in self-defence – must meet the customary requirements of necessity and proportionality. Any jus ad bellum right in this context would only be lawful if peaceful means have genuinely been exhausted and the force used is limited to what is necessary to repel the occupier and is proportional to the goal. It has been claimed by scholars like Tom Farer that peaceful means have in fact been exhausted over the years. After the Palestinian declaration of independence in 1988, the PLO accepted the Geneva Conventions and other instruments, signalling an intent to conduct itself lawfully. The actors who engage in armed resistance today are not similarly bound by these instruments, underscoring the importance of who is fighting and how they fight in determining legitimacy. 

If Palestine is viewed as a state under continuous attack, it could in theory invite military assistance from other states to expel the occupying forces. Recognizing a continuous armed attack not only opens the doors for a Palestinian right to self-defence, but also for other states to justify the use of force as aiding lawful self-defence, much as states aided Kuwait in 1991. This might be another political complication in affording Palestine the legal protections of a state resisting aggression. 

Complications and Counter-arguments 

The assertions detailed above are not without serious counter-arguments. It can be straightforwardly argued that non-state actors do not enjoy a right of jus ad bellum even for self-defence. If Palestine’s statehood is not affirmed, then extending self-defence rights under Art.51(and2(4)) risks eroding the inter-state legal order and opens doors for similar claims from other non-state actors. One might argue that the Palestinian case is sui generis; they are a people recognized by the UN with an acknowledged right to independence in a defined territory. It is conceivable that the law may accommodate this as an exceptional case where a non-state actor can invoke a state’s rights due to the unique international status of the territory and people. 

Another counterargument centres on feasibility and timing. In the context of the Nagorno-Karabakh conflict, an assertion from some scholars claimed that a conflict calcifies over time, lending itself to resolution by peaceful means. They argued that calling occupation a continued armed attack encouraged perpetual warfare. A similar argument could be made in this context. It might also be asserted that the Palestinian state, through agreements like Oslo, renounced armed force and that this commitment cannot be reversed unilaterally without consequence. A response to this could be that a latent right to self-defence merits expression in the face of repeated bad faith action and ever-increasing occupation. The debate has political and moral limbs to it as much as a legal one. 

Compliance with IHL is another critical limitation. Several tactics of warfare used by the non-state actors involve the commission of war crimes, evidenced, inter alia by the issuing of arrest warrants by the Prosecutor of the ICC. While a right to use force may exist, the claim to be treated as lawful combatants exercising a lawful right is affected by violations of in bello rules. 

The issue of recognition is also of import. The political reality of the conflict cannot be ignored; international law develops through recognition and practice. There is noticeable divergence in global opinion on the legitimacy of armed resistance in Palestine. Western states largely hold the view that Palestinian armed struggle is illegitimate. Even in the light of prolonged occupation in violation of international law, it is tenuous to make the argument that non-state actors in Palestine might have a legitimate right to resist occupation by force. 

Conclusion 

Akande and Tzanakopoulos’ theory of occupation as a continuing armed attack offers a compelling idea through which to view the Palestinian struggle. It forwards the idea that an extended period of occupation does not make it innocent. It allows one to view Palestinian armed struggle as not inherently arbitrary, but an attempt to fulfil an internationally recognized right to self-defence. It bolsters the idea that Palestinians – like all people – have the right to respond to forcible seizure of their land. This lens also forces a reckoning with difficult questions. What does it mean when both sides claim self-defence? What consequences would recognizing a Palestinian right to resist occupation have on an already asymmetrical conflict? 

International law does not operate in a vacuum: it reflects the political will of international actors. Whether the international community accepts the notion of Palestinian self-defence may hinge less on doctrinal purity and more on our collective conscience. This post has attempted to suggest that lasting peace and security might come with the restoration of lawful rights, eschewing the indefinite toleration of unlawful occupation.  

Photo attribution: “My name is Palestine” by EL Seed is licensed under CC BY-SA 3.0