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December 8 2012 7 08 /12 /December /2012 23:13

A very intriguing article appeared on the BBC news web page on 20 November 2102, titled ‘Gaza crisis: The legal position of Israel and Hamas ‘. It begins by stating that Israel’s position in regards to its right to defend itself (against attacks by Hamas) is supported by many Western countries and seemingly covered by the UN Charter in principle. In typical BBC fashion it appears to want to strike a balance between two competing arguments by presenting the counter –argument. This is rather startling. Firstly it is an argument that is intrinsically pathetic, even embarrassingly so. Secondly it is incomprehensible that it can actually be put forward as a counter argument for serious consideration by the serious reader.


Although the writer points out that state practise since 2001 ‘militates’ (interesting choice of word) against the acceptance of such an argument, it is suggested that ‘the right of self-defence should be invoked only against another state, but not against a non-state entity like Gaza ‘. Personally I am relieved that state practice does not follow this argument. In my former days as a practising lawyer there were times when the arguments I may have advanced on certain occasions were not the strongest. How would a court have reacted to this level of disingenuous advocacy?  This argument seems to limit the right of a sovereign state to defend itself against military attack by other sovereign states. If this is so then no government could use force to combat any attempted revolution as revolutionary movements are always by definition non-state entities. As a non-state entity one could arm a sea going vessel and from off the coast and beyond territorial waters fire missiles into, say Belgium, with impunity. The Belgians of the coast would have to hope the missiles fell where damage was minimal, but their government could not fire back or even send a helicopter or plane to destroy the belligerent boat.


The second argument runs as follows: ‘Secondly, some commentators maintain that Gaza is still subject to Israeli occupation because of the ongoing blockade, and that Israel cannot rely on self-defence in an occupied territory. ‘ if this is correct then the minute any army crosses the border of any other country it becomes an occupying power and may therefore no longer fire upon the enemy but must either retreats or stand their taking the bullets. In fairness to the writer he does set out the Israeli counter-argument.


Although the writer does not discuss it, we ought to consider that it is highly likely that many of those advocating the two aforementioned ‘positions’ may well also hold of the ensuing idea: (a) Israel is an illegal entity.  (b) It is therefore a non-state entity. (c) In consequence it has no rights of any nature whatsoever and may not defend or attack anyone. (d) Alternatively since it is not a state-entity but is a non-state entity (just like Gaza) should its (Israel’s) inhabitants fire missiles into any other territory or undertake military action against such territories whether of a sovereign state or non-state they (the non-stated Israelis) should not be subject to any form of self-defence.


There is no doubt that if any objective examination is done of Israel’s actions it would be concluded  that Israel acts necessarily and proportionately, endeavouring to minimise collateral damage as far as possible. 


Does it really need a strong argument that if any human beings are under threat by any others their government should be defend themed irrespective of the status of any entities in international law. Yet what I find most chilling about these ’arguments’ is neither the fact that they are so pathetically weak nor that they can be given any serious weight in an editorial piece, but rather that there are probably jurists who will willingly and enthusiastically against Israel.

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