26 No. 75 JUSTICE 71. From the previous analysis, it follows that international law recognises that a State, in implementing its right to self-defence, in particular in the context of fighting terrorism, can in principle take all required measures to put an end to an ongoing attack and to avoid any future attack from the same source,115 especially when they are part of the same pattern of conduct which constitutes the overall armed attack. 72. In this context, the Court should not take specific incidents in isolation and analyse whether each meets the threshold of an “armed attack” under the law of self-defence. Actions by armed groups should be seen as a whole and as a pattern of conduct amounting to an armed attack or the threat thereof.116 International criminal law supports this interpretation of the term “attack” as a series of incidents taken together.117 Supporting this view, Bethlehem argues that: “The term “armed attack” includes both discrete attacks and a series of attacks that indicate a concerted pattern of continuing armed activity. The distinction between discrete attacks and a series of attacks may be relevant to considerations of the necessity to act in self-defence and the proportionality of such action,” and an “appreciation that a series of attacks, whether imminent or actual, constitutes a concerted pattern of continuing armed activity is warranted in circumstances in which there is a reasonable and objective basis for concluding that those threatening or perpetrating such attacks are acting in concert.”118 73. As a result, actions by Palestinian armed groups should be considered as a whole, constituting one ongoing armed attack which is not hypothetical, since it has already started. As noted by Gill and Fleck: “The purpose of forestalling future repeated attacks from a given source once an attack has been launched or is imminent should not be confused with the notion of ‘preventive self- defence’, in advance of any clear and manifest threat of an armed attack in the immediate future.”119 74. In light of the magnitude of the threat from Palestinian armed groups evidenced by the horrific attack of 7 October 2023, there can be little doubt that Israeli presence in the West Bank and the Gaza Strip is legally justified as a measure of self-defence. The existence of a situation of occupation is not material per se to the determination of whether a State can invoke self-defence against attack emanating from outside its territory 75. The Wall advisory opinion is often interpreted as finding that the existence of an occupation is a legal bar to the invocation of the right to self-defence by a State against an armed attack emanating from occupied territory. Interestingly, however, this is not expressly stated in the Court’s opinion. The Court simply notes “that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory” (emphasis added) before immediately referring to UNSC Resolutions 1368 (2001) and 1373 (2001), which do not relate to occupation as such, but instead to the recognition of the exercise of the right to self-defence against non-state actors in the context of terrorism. 115. “In general practice of States, a war of self-defense is not limited at all to a mere repulse of an armed attack: force is often used tenaciously, with a view to bring about the utter collapse of the aggressor’s armed forces.” Dinstein - Self-Defence, p. 285. 116. Id., p. 211, referring to several ICJ judgments where an accumulation of acts could be regarded collectively as an “armed attack”, and noting that “this is a case where the whole (the series of acts amounting to an armed attack) is greater than the sum of its parts (single acts none of which does by itself).” 117. For example, Article 7(2)(a) of the Rome Statute of the ICC defines an “attack” as a “course of conduct involving the multiple commission of acts.” 118. Bethlehem, p. 775. 119. Gill and Fleck, p. 213, fn. 4.
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