In this episode I speak with Monica Hakimi of Columbia Law School, Adil Haque of Rutgers Law School, and Marko Milanovic of University Reading School of Law, on the question of whether Israel has a right of self-defense under Article 51 of the U.N. Charter in response to the Hamas attacks of October 7. This question has been the subject of some confusion in both the political and legal discourse, and raises a host of complicated issues regarding the scope of the prohibition on the use of force under Article 2(4) of the U.N. Charter and its relationship with the right of self-defense under Article 51, whether the right of self-defense depends upon Gaza being part of an established state of Palestine, whether self-defense is available in response to attacks by non-state actors in any event, whether the prohibition on the use of force may extent to protect non-state entities with a right of self-determination, what the scope of legitimate resistance by such entities may be, and how best to interpret the scope and operation of the principle of proportionality under the doctrine of self-defense if it applies here. We explore all of these questions, and discuss how the positions and actions taken by states may have in relation to these issues may have significant implications for the development of the jus ad bellum regime. An important and fascinating discussion.
Materials:
– Marko Milanovic, “Does Israel Have the Right to Defend Itself?” EJILTalk!, Nov. 14, 2023.
– Adil Haque, “Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict,” Just Security, Nov. 6, 2023.
– Monica Hakimi, “Defensive Force against Non-State Actors: The State of Play.” 91 International Legal Studies 1 (2015).
(In addition, the discussion refers to recent blog posts, which can be accessed at the following links, by Michael Schmitt, Mary-Ellen O’Connell, Nicholas Tsagourisas, and Raphael Van Steenbergh).
Reading Recommendations:
– Ezra Klein, “The Ezra Klein Show,” The New York Times – the series on the Israel-Hamas Conflict (there have been 10 episodes thus far!) (Monica Hakimi).
– David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus ad Bellum,” 24 European Journal of International Law 235 (2013) (Marko Milanovic).
– Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967-2020,” 31 European Journal of International Law 1055 (2020) (Adil Haque).
– Colleen Murphy, “Israel, Hamas, and the Narratives of Atrocity,” The Daily Nous, October 25, 2023. (Adil Haque)