Article 51 does not apply to a situation that involves an Occupying Power (the State of Israel) acting within occupied territories under its own authority and responsibility. In legal terms, Israel cannot invoke the right to self-defence under Article 51 to justify the use of military force in territories on which Israel itself exercises
effective control, at least since 1967. (Although Israel withdrew its troops from Gaza under the "disengagement plan" in 2005, Israel's relocation of its troops from the occupied land does not end its status as the "Occupying power". Israel continuously maintained control over Gaza's borders, air and sea space, water, electricity, sewage and telecommunication systems and because of that, Gaza remains an occupied territory as defined in international law. In fact, UN Security Council resolution 1860 (
pdf) issued on January 8, 2009 clearly notes that: "the Gaza Strip constitutes an integral part of the territory occupied in 1967".)
Indeed, it would be inconceivable for most of us to imagine any other country barricading a city or a district within a territory under its own watch
, then use F-16 fire jets, high-tech Cobra helicopters, ground troops, cluster bombs, white phosphorus and depleted uranium ammunition, killing thousands of its inhabitants under the pretext of combating, for instance, street gang criminality. It would be even more absurd if that country justified all that by invoking an extraneous right under the UN Charter. Yet, this is exactly what Israel has done in Gaza.
Palestine (Gaza strip and the West Bank) is not yet considered an independent sovereign State - especially not by Israel. The swath of land known as "Palestine" (which encompasses Gaza) is an inhabited territory under Israeli mandate and occupation since 1967. For Israel to become entitled to invoke Article 51 of the UN Charter (which is a multilateral
inter-state treaty) and benefit from its relevant rules of self-defence, Israel needs at least to recognize that it is dealing with another "
State" (be it a State that directly commits armed attacks against Israel or a State whose territory is being used by an autonomous hostile group to mount attacks against Israel).
But
Israel cannot persistently rebuff Palestine's Statehood on one hand, and, on the other hand, treat Palestine as a State whenever it needs to utilise the Charter to legitimise its use of force against.In other words, Israel's self-defence argument entails the precondition of recognising Palestinian
Statehood; while not doing so entails setting the Charter's legal subterfuges aside and solely complying with the strictures of Humanitarian law (especially the Geneva Conventions) regarding occupation.