Myth #2: “Israel has the right to defend itself”

After every major Israeli military operation since 2008, Western governments have issued near-identical statements. After Cast Lead, after Pillar of Defense, after Protective Edge, and on October 7, 2023, President Biden stated: "Israel has the right to defend itself and its people. Full stop." [1]

Within five days, the same phrase had been repeated by the European Commission President, the European Council, the UK, France, Canada, Germany, and the entire G7. Ursula von der Leyen flew to Tel Aviv to say it in person: "Israel has the right to defend itself. And Israel even has the duty to defend and protect its people." [2]

The phrase is treated as self-evident — a moral axiom so obvious it requires no examination. It is not self-evident. It contains a precise legal claim: that Israel's use of military force against Gaza constitutes lawful self-defense under international law, specifically under Article 51 of the UN Charter. That claim has been examined by the International Court of Justice twice. Their conclusions are almost never quoted in the same political speeches that invoke the phrase.

The right of self-defense in international law is not a general moral principle. It is a specific legal right defined in one place: Article 51 of the United Nations Charter, adopted in 1945. [3]

Three elements define this right as a matter of law. First, it applies to Member States responding to an armed attack. Second, the attack must be attributable to another state. Third, it is a temporary measure until the Security Council acts — not a blanket authorization for ongoing military operations.

The key question for Palestine is the second element: attribution to a state. Article 51 was designed to govern relations between states. Its application to non-state actors operating within territory an occupying power controls raises a fundamentally different legal question — one the ICJ has addressed directly.

The ICJ addressed the self-defense question directly in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, issued July 9, 2004. Israel argued its security barrier was consistent with Article 51. The Court ruled in paragraph 139: [4]

The Court's reasoning rests on two points. First, the attacks are not imputable to a foreign state — they originate from within territory Israel itself occupies and controls. Second, Article 51 by its own terms contemplates inter-state armed attacks. The threat comes from inside, not outside. Self-defense under Article 51 is therefore unavailable.

The 2024 Advisory Opinion extended this further. It declared Israel's occupation itself unlawful — meaning the military presence generating the threat is the act of aggression. An unlawful occupation cannot simultaneously generate a lawful right to use force in defense of that occupation. [5]

The legal framework that applies to an occupying power is not the law of self-defense. It is occupation law — the Fourth Geneva Convention of 1949 and the Hague Regulations of 1907. Article 43 of the Hague Regulations is the governing provision: [6]

Noura Erakat, Associate Professor of Law at Rutgers University and author of Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019), explains the legal consequence: [7]

The legal critique of the "right to defend itself" claim is not confined to Palestinian or Arab scholars. Israeli historians and Oxford academics have addressed it directly — making the argument impossible to dismiss as external bias.

Ilan Pappé, Professor of History at the University of Exeter and former professor at the University of Haifa, identifies the phrase as a structural framing device rather than a legal or factual claim — one that mainstream media applies asymmetrically to Palestinian and Israeli violence. He links it directly to the ICJ's 2024 ruling confirming Israel remains the occupying power, writing that actions against Israel by the people of Gaza are, under that ruling, considered part of their right to resist occupation — not a predicate for Israeli self-defense. [11]

The most common Western counter-argument is that Israel withdrew from Gaza in 2005, ending the occupation and thereby restoring the Article 51 right of self-defense against a foreign entity. This argument has been examined and rejected by the ICJ in its 2024 Advisory Opinion.

The Court confirmed that Israel remains the occupying power of Gaza despite the 2005 disengagement, applying what legal scholars call the "functional approach" to occupation: Israel maintains effective control over Gaza's land borders, airspace, sea access, population registry, tax revenue, and the electromagnetic sphere. The 2024 opinion concluded that Israel's obligations in Gaza are commensurate with the degree of its effective control. [5]

The UN, every major human rights organization, and the overwhelming consensus of international law scholarship concur: Gaza has remained occupied territory since 1967. The 2005 withdrawal changed the form of control, not its legal character.

This analysis is not arguing that Israel has no right to protect its citizens from attack, that the October 7 attacks did not occur, or that security concerns are illegitimate. It is arguing something more precise: the legal framework governing how Israel may protect its citizens is occupation law, not Article 51 self-defense — and the phrase "Israel has the right to defend itself" systematically erases that distinction.

When Western leaders say the phrase, they are invoking a specific legal right that the ICJ has twice ruled is not available to Israel in this context. The phrase is not false as a moral statement. It is legally unsupported as stated. And it is the legal claim — not the moral one — that is doing the political work, because it is the legal claim used to justify specific military actions, block specific Security Council resolutions, and preempt specific accountability demands. [10]

What the phrase accomplishes every time it is used without context:

It converts an occupying power's obligation to protect a civilian population into a state's right to wage war against them. It transforms actions prohibited by the Fourth Geneva Convention — collective punishment, siege of civilian infrastructure, disproportionate force — into exercises of a legitimate legal right. It displaces the applicable legal framework — occupation law — with an inapplicable one — Article 51 inter-state self-defense. And it does all of this without lying. The phrase is misleading not through falsification but through omission.