Since the atrocities of October 7, when Hamas militants broke out of Gaza and killed over a thousand soldiers and civilians in Israel, we have been told that Israel has a right — and indeed a duty — to defend itself.
In a recent ODT opinion piece (1.12.23) we are told that Israel has the legitimate right to defend itself, as long as it does so according to the principles of just war theory.
International lawyer Francesca Albanese, the UN special rapporteur on the occupied Palestinian territories, begs to differ. She argues that Israel cannot claim the right of "self-defence" under international law because Gaza is a territory which it occupies. Specifically, she argues that: "Israel cannot claim the right of self-defence against a threat that emanates from the territory it occupies, from a territory that is kept under belligerent occupation."
As a similar case, Russia, as an illegitimate belligerent, enjoys no right to defend itself against the Ukrainian military when that military responds to the illegal — and rightly and roundly condemned — violence that has been unleashed against Ukrainians. In other words, under international law, oppressors do not have rights to defend their oppressive occupation of another nation’s territory.
Moreover, according to the Preamble of the Universal Declaration of Human Rights (UDHR), the people being oppressed have the right of rebellion. It says: "It is essential if human beings are not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".
This right to rebellion has been recognised in international relations in numerous cases before now. For example, the ANC’s rebellion against apartheid South Africa was recognised, as was the US-backed mujaheddin’s rebellion against the Soviet occupation of Afghanistan.
According to international law, to enjoy this right to a rebellion a group like the Palestinians must, first, be recognisably oppressed and, second, have exhausted all other mechanisms of resistance. Are the Palestinians oppressed? It is an inarguable fact that Palestinians collectively suffer a high degree of oppression.
Are the Palestinians at the point of last resort? Again, it is unarguable that Palestinians have been systematically denied the ability to respond to their oppression through non-violent means.
Given the failures of diplomacy, ordinary Palestinians have understandably taken to expressing their opposition to their oppression using forms of collective nonviolent resistance. However, even this has been met with further oppressive violence by Israel.
Of course, none of this justifies the terroristic escalation of October 7. The right to rebellion specifies no limits, but nor does it permit the killing of civilians. Nevertheless, so long as all nonviolent mechanisms for resistance are denied, delegitimised or rendered ineffective by the concerted action of oppressors and those acting on their behalf, then refusing to permit violent resistance is to demand Palestinian acquiescence to oppression.
In short, the Israeli government’s right to defend itself is not a right to continue oppression, and especially not through the kind of violence we are witnessing in Gaza.
Moreover, wherever any government does enjoy such a right, that duty is grounded in a prior duty to protect its citizens. In order for the Israeli government to honour this duty of protection, it must engage in good faith to both end Palestinian oppression and provide security for Israelis.
Rather than a right to self-defence, the moral language we should be using is that of a duty the Israeli government — and Israelis more generally — have to make its citizens safe by ending the subjugation of the Palestinian people.
— Professor Richard Jackson is a lecturer in peace studies at the University of Otago; Dr David Jenkins is a lecturer in political theory at the University of Otago.
