The barbaric attack on Israel on 7 October 2023 and ensuing war has demonstrated the necessity for Israel to retain its military forces in the Gaza Strip and the West Bank for its security in the absence of alternative effective security arrangements.

This is the point made by UK Lawyers for Israel (UKLFI) and the European Leadership Network (ELNET) in a supplementary submission to the International Court of Justice (ICJ) on the UN General Assembly’s request for an advisory opinion on “the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory including East Jerusalem”.

ELNET is a leading NGO dedicated to strengthening Europe-Israel relations and UKLFI is an association of lawyers who support Israel and seek the proper application of laws in matters relating to Israel.

This Statement supplements their earlier Statement, submitted just prior to 7 October, on 29 September 2023. It makes the point that recent events have demonstrated that the presence of Israeli forces on the ground in both the Gaza Strip and the West Bank is justified for Israel’s self-defence, irrespective of other justifications.

The submission says: “In retrospect, Israel’s unilateral disengagement from the Gaza Strip in 2005, without agreements effectively addressing security arrangements and other outstanding issues identified in the Oslo Accords, was a serious mistake. It allowed Hamas to build up a vast terrorist infrastructure in, around and underneath the civilian buildings and population of the Gaza Strip.”

“Particularly in view of threats by Hamas leaders to repeat the atrocities of 7 October 2023,[1] it is necessary for the Israeli forces to destroy Hamas as a military and governmental organisation, including this infrastructure. Regrettably, but inevitably, achieving this has resulted in tens of thousands of casualties as well as serious deprivation for the population of the Gaza Strip and widespread destruction of civilian buildings.”

The submission also points out that high civilian casualties are unfortunately unavoidable in armed conflict in urban areas. A survey for the UN found that civilians accounted for 89% of the casualties in urban and other populated areas in armed conflicts worldwide in 2021[2] – i.e. a ratio of civilian to combatant casualties of 8:1. By contrast, the Israel Defence Forces estimated on 9 January 2024 that around 9000 Palestinian terrorists had been killed in the Gaza Strip since 7 October 2023.[3] As at that date 23,310 Palestinians (including combatants) had been killed in the Gaza Strip according to figures based on reports by the Hamas-controlled authorities.[4] If correct,[5] these data would indicate a civilian to combatant fatal casualty rate of 1.6:1.

While all casualties are tragic, this ratio is five times better than the 2021 average worldwide, despite the extreme difficulty of the necessary military operation in the Gaza Strip, given the density of its population and the vast extent of Hamas’s tunnel network and facilities underneath civilian buildings.[6]#

The statement also notes that Palestinian casualties are not solely due to Israeli fire. An undetermined number of Palestinian casualties have been caused by Palestinian crossfire on the ground and by Palestinian rockets that have fallen short in the Gaza Strip, such as the rocket that caused the explosion outside Al Ahli hospital on 17 October 2023.[7]

The submission points out that if Israeli forces were to be withdrawn from the West Bank, the situation there would likely become similar to that which developed in the Gaza Strip following Israel’s disengagement from that territory, but on a larger scale and adjacent to Israel’s major population centres. This would result in many more casualties and make peaceful resolution of the conflict even more difficult.

The submission concludes that the presence of Israeli forces on the ground in both the Gaza Strip and the West Bank is therefore justified for Israel’s self-defence, irrespective of other justifications. It notes that the International Association of Jewish Lawyers and Jurists submitted a written statement to the Court on 16 February 2024 which included a helpful analysis of international law regarding self-defence.

The full supplementary submission is available HERE

[1]   Ghazi Hamad, interview on LBC TV on 24/10/2023, MEMRI https://www.memri.org/reports/hamas-official-ghazi-hamad-we-will-repeat-october-7-attack-time-and-again-until-israel; Itamar Marcus and Nan Jacques Zilberdik, Hamas’ threats “to cut off heads”, “slit throats”, and “slaughter every Jew on the planet” in 2019 were ignored, Palestinian Media Watch 19/11/2023 https://palwatch.org/page/34768

[2]   S/2022/381 Protection of civilians in armed conflict, Report of the Secretary-General, 10/5/2022 https://undocs.org/Home/Mobile?FinalSymbol=S%2F2022%2F381&Language=E&DeviceType=Desktop&LangRequested=False  §12

[3]   IDF Press Release, War Against Hamas: Interim Data – Elimination of Terrorists, 14/1/2024 https://www.idf.il/en/mini-sites/idf-press-releases-regarding-the-hamas-israel-war/january-24-pr/war-against-hamas-interim-data/

[4]   UNOCHA reliefweb, Hostilities in the Gaza Strip and Israel / Flash Update #88 9/1/2024 https://reliefweb.int/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flash-update-88-enar

[5]   Evidence of manipulation is discussed by Gabriel Epstein, How Hamas Manipulates Gaza Fatality Numbers, Washington Institute for Near East Policy, January 2024 no. 144

[6]   BBC News, Israel targets Hamas’s labyrinth of tunnels under Gaza, 13/10/2023 https://www.bbc.co.uk/news/world-middle-east-67097124

[7]   See Human Rights Watch, Gaza: Findings on October 17 al-Ahli Hospital Explosion 26/11/2023 https://www.hrw.org/news/2023/11/26/gaza-findings-october-17-al-ahli-hospital-explosion