On November 7, the United Nations Security Council failed to pass a resolution on Israel's month-long war with Hamas amid concerns about the rising death toll and growing humanitarian crisis in Gaza. Some Council members, including the United States, insist on a humanitarian pause while other nations demand an immediate cease-fire.
Russia retains its position as a supporter of a cease-fire resolution but also denies Israel’s right to self-defense while accusing the United States and allies of “hypocrisy” for supporting Israel.
Russia’s U.N. ambassador, Vasily Nebenzya said on October 31:
“I cannot leave unmentioned the hypocrisy of the U.S. and its allies … All they can do is keep saying about Israel’s alleged right for self-defense, which, as an occupying state, it does not have, as was confirmed by the [U.N.] International Court consultative ruling in 2004.”
The claim is misleading.
The 2004 ruling by the International Court of Justice (ICJ), the U.N.’s principal judicial organ, does not concern the Gaza Strip or Israel's right to self-defense against Hamas. The ruling, which is consultative, disputes the legality of Israel's building of a wall that separates it from the Palestinian Authority in the West Bank.
The issue, which is decades-old, involves the route of a barrier built by Israel that differs from the U.N.-recognized Green Line, a demarcation established following the Arab-Israeli war of 1948-1949. After the Six-Day War of 1967, Israel established a new demarcation line that the U.N. considers an encroachment on occupied Palestinian territory in the West Bank.
The ICJ concluded in 2004 the wall violates international law, and that Israel is obliged to stop its construction immediately.
An ICJ Advisory Opinion dismissed Israel’s argument of self-defense, concluding that the right to self-defense does not grant the right to erect a barrier in a territory the U.N. recognizes as occupied.
“Israel cannot rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. The Court accordingly finds that the construction of the wall and its associated regime are contrary to international law.”
Gaza Strip came under Israeli control on June 7, 1967, after the Six-Day War. In August–September 2005, as part of a unilateral disengagement plan, the Israeli government forced the evacuation of Israeli residents of Gaza — about 9,000 Israeli settlers — and withdrew its troops from the strip.
Nevertheless, Israel, according to the 1995 Oslo Accords — an agreement between Israel and the Palestine Liberation Organization — continued to control Gaza's territorial waters and airspace in order “to protect Israeli citizens from terrorist attacks by Hamas.”
The United States, the European Union, the United Kingdom, and other countries have designated Hamas a terrorist organization.
Whether such Israeli control is a sign of occupation of the Gaza Strip remains a matter of dispute. Israel, the U.S., and a number of legal experts believe that Jerusalem has given up effective control of the Gaza Strip, thus ending the occupation. The U.N., the European Union, and several other international organizations consider the occupation ongoing.
This does not affect our verdict of Nebenzya's claim as misleading because the 2004 ICJ decision did not address the Gaza Strip.
The country's right to self-defense, according to Article 51 of the U.N. Charter, can be limited only by U.N. Security Council measures:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
The European Council condemned Hamas's aggression and supported Israel's right to defend itself under humanitarian and international law:
“We strongly emphasize Israel’s right to defend itself in line with humanitarian and international law in the face of such violent and indiscriminate attacks,” the European Council stated on October 15.
“Israel has not only the right but the obligation to defend itself [after the] Hamas terrorist organization” attack, U.S. Secretary of State Antony Blinken said on November 2, before visiting the Middle East.