Why Israel’s Attack on Gaza Was Illegal
Dear Bianca Ambrosio,
Your Open Letter raises two objections to my article “Gaza Under Assault.” The broader objection is your assertion that there already was a state of armed conflict. It follows, then, that Palestinians can legitimately launch rocket attacks at Israel, capture Israeli soldiers (like Gilad Shalit), and carry out other actions appropriate to a state of a war (from the West Bank as well, Gaza and the West Bank being a territorial unity). I doubt that you believe that, but if you do, it would be well to make such views explicit.
Your narrower objection has to do with Article 51 of the UN Charter. Nothing in article 51 says “in due time” (your words), an innovation that would deprive Article 51 of its essential import. The plain meaning of Article 51 is that a state under armed attack is to inform the Security Council (as Israel did at once in June 1967, claiming to be under armed attack after it attacked Egypt), and may then use force in self-defense until the Security Council carries out its obligations “to maintain international peace and security.” That aside, Israel could not have claimed to be under armed attack as the term is understood in international law, under the Caroline test, and would not have approached the Security Council even “in due time” with such a claim. Furthermore, the resort to force is illegitimate when peaceful means are readily available, in this case accepting a truce rather than undermining it, as I reviewed.
The reference to R2P and the rest is not relevant, as I take it you agree, though it is of interest to pursue the radical difference between the interpretation of R2P by the West (to which you restrict attention) and by the UN General Assembly, an important matter that is particularly relevant in the case of Kosovo to which you refer.