At the Outer Limits of the Right of Self-Defence and Beyond: Israel’s Use of Force in the Gaza Strip since 7 October 2023 and the Jus contra Bellum

Abstract

The Gaza war, which started on 7 October 2023 through the horrendous attack by Hamas on Israel, has caused a depressing measure of human suffering on all sides. As far as Israel’s use of force is concerned, this war also constitutes a challenging case for the application of the jus contra bellum. This chiefly arises from the genuine legal uncertainty concerning the applicability of the right of self-defence when an armed attack by a non-state organisation emanates from the territory of a state that has proven unable to prevent said armed attack. Arguably, the situation in the Gaza Strip on 7 October 2023 presents the rare variation of such an ‘unable host state scenario’ where the non-state armed attack (by Hamas) against a state (Israel) has originated from a territory (the Gaza Strip) destined for the realisation of the right to self-determination of a people (the Palestinian people). In such a case, the dilemmatic conflict that underlies the uncertainty about the applicability of the right of self-defence is between the legally protected interests of the state that is the victim of the armed attack and those of the ‘host people’ of the non-state attacker.