| Abstract [eng] |
This paper analyses the inherent right of a state to self-defense in the event of an armed attack, as enshrined in Article 51 of the United Nations Charter. The right of self-defense is an indisputable and fundamental right of the State, the existence of which cannot be denied either by the development of international law or by its formalisation, but its conditions have been regulated by the development of international law. Self-defense as a right is seen not only as an existing right of the State to defend its territorial integrity, its citizens and to maintain its security, but also through its exercise. The exercise of self-defense is subject to criteria of proportionality and necessity derived from customary law. International humanitarian law sets out these criteria and clear rules for the legitimate exercise of self-defense. If the thresholds of proportionality and necessity are exceeded, self-defense may be qualified as aggression. Although Article 51 of the UN Charter has long been applied to inter-state conflicts, the changing nature of warfare has highlighted the need to broaden the concept of the right of self-defense and the conditions attached to it. The events of 11 September 2001 led to the development of the institution of self-defense, recognising that a State may use self-defense against a non-State actor, provided that the attack by the latter meets the requirements of the scale and consequences of an armed attack. This paper assesses Israel's right to self-defense against the terrorist entity Hamas in the Gaza Strip. While the development of international law has shown that self-defense is possible against terrorist entities, and the attack by Hamas met the requirements of an armed attack in terms of scale and consequences, it is Israel's exercise of self-defense and its compliance with the principles of proportionality and necessity that is being challenged by the international community. This paper assesses the compliance of Israel's implementation of self-defense with the criteria of proportionality and necessity under international humanitarian law, and the possible overstepping of the limits. |
