20 No. 70 JUSTICE resolutions. This is in sharp contrast to the resolutions adopted by the UN Security Council after the 9/11 terrorist attacks in New York. Resolutions 1368 (2001) and 1373 (2001) recognize without reservation the right of the U.S. to use self-defense which justified its military actions against the Al-Qaeda terrorist network in Afghanistan. Here, a large majority of UN Members seem to deny that Israel, as a sovereign state, has the inherent right to defend itself. I fear, however, that the theory that Israel does not have the right to self-defense against Gaza-based attacks because it “occupies” Gaza–quod non–looms not only within some academic circles, but also in the halls of the UN headquarters in New York. As we have seen throughout this analysis, there are indications that this is the case. To combat this opinion, the UN must emphasize that the right of self-defense may be invoked in all cases of an armed attack against a member of the United Nations, irrespective of the attack’s source or whether the attack is from another state or non-state actors. It is notable that a leading precedent on self-defense is the Caroline case regarding an incident in 1837 which concerned the defense (by a state) against an action not by a state, but by rebels.27 C. No Criticism of Human Shields Practice A third point is that the resolutions do not condemn or even address the practice of Hamas and other Palestinian terrorist movements operating in Gaza to use civilians as human shields. Hamas’ tactics and strategy over the years, and in this war, include the use of civilians and civilian infrastructure to shield their military installations and devices. It goes without saying that this creates complexities for the Israel Defense Forces (IDF). Additionally, these Hamas practices are a major contributor to the high number of civilian fatalities in the Gaza Strip and are in clear contravention of IHL. This is clear from Articles 51 (7) and 58 of Protocol I Additional to the Geneva Conventions of 1949 and Article 8(2)(b)(xxiii) of the Rome Statute of the International Criminal Court (ICC). Considering the importance that both the General Assembly and the UNSC presumably attach to international humanitarian law, it is surprising that they do not pay any attention to the use of human shields. D. No Change in the Habitual UN Attitude Towards Israel As a final observation, I submit that the responses given by the major UN organs on the Hamas-Israel war thus far fit the general approach of the State of Israel and the Arab/Palestinian-Israeli conflict over the years, and possibly since the establishment of the State of Israel in 1948. It has been aptly observed that, “The UN did not establish Israel in 1947-1948, nor did it come to its rescue afterwards.”28 If we look at the number of resolutions adopted by the major UN organs, as well as by its human rights organs, we observe an exceptional and disproportionate negative attention to the policies of the Jewish State. The singling out of Israel within the UN is a standing practice. This is of course contrary to the basic ideas of justice and fairness that should characterize any legal system, including the international legal order, of which the UN so proudly presents itself as a guardian. The unfair treatment of Israel was also recognized by former UN Secretary-General Ban Ki-moon who was quoted as having said (after his retirement): “Decades of political maneuverings have created a disproportionate volume of resolutions, reports and conferences criticizing Israel. In many cases, rather than helping the Palestinian cause, this reality has hampered the ability of the UN to fulfill its role effectively.”29 The most recent illustration is that during the current session of the General Assembly, thirteen resolutions have been adopted on Israel – among these the two on the Hamas-Israel war – and only seven on the rest of the world.30 It is a sad observation that not even the atrocious nature of the Hamas attack of October 7, 2023 on the Jewish State and its population changed the habitual but blameworthy approach of the UN. n Matthijs de Blois, Ph.D., Law Faculty of Leiden University, Department of International Law, 1989; LL.M. Utrecht University, 1977; Assistant Professor Utrecht University’s Institute of Legal Theory of the Law Faculty, 1990-2017, is senior fellow at Thinc. Israel and International Law. This article was completed on Dec. 22, 2023. 27. Martin Dixon & Robert McCroquodale, CASES & MATERIALS ON INTERNATIONAL LAW (3d ed., London, Blackstone Press Limited, 2000), 561-562. 28. Yehuda Z. Blum, “Israel and the United Nations: A Retrospective Overview,” in A. E. Kellermann, K. Siehr and T. Einhorn eds., ISRAEL AMONG THE NATIONS: INTERNATIONAL AND COMPARATIVE LAW PERSPECTIVES ON ISRAEL’S 50TH ANNIVERSARY (Kluwer Law International, 1998), pp. 69-77, at 71. 29. Danielle Ziri, “Ban Ki-moon Recognizes Bias against Israel in last Security Council Speech,” JERUSALEM POST, DEC. 16, 2016, available at http://www.jpost.com/Israel-News/ UN-chief-urges-Israeli-lawmakers-to-reconsider-settlementbill-475617 30. “2023 UNGA Resolutions on Israel vs. Rest of the World,” UNWATCH, Dec. 19, 2023, available at Unwatch.org/2023unga-resolutions-on-israel-vs-rest-of-the-world/
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