The year 2021 was marked by the most violent escalation of hostilities between Israel and Palestinian armed groups in Gaza since 2014. In May, clashes and protests for scheduled forced evictions of Palestinian families from the Sheikh Jarrah neighborhood in East Jerusalem, and for increasing Israeli settlement activity, spiraled into eleven days of military confrontation. On 17 May 2021, at the Security Council open debate on “The situation in the Middle East, including the Palestinian question”, the European Union (EU) expressed its concerns over the upsurge in violence and called “for an immediate cessation of hostilities”.[1] Similarly, on 12 May, the United Nations (UN) Secretary-General remarked that “de-escalation is an absolute must to protect the lives of civilians”.[2]
Italy aligned itself with the position of the EU and called on the parties to engage in mediation efforts, emphasizing the role of the Middle East Quartet as “the only internationally recognized format for mediating the peace process”.[3] However, Italy, as other EU Member States,[4]abstained from voting on the UN Human Rights Council’s resolution that led to the establishment of an international commission of inquiry to investigate, in the Occupied Palestinian Territory and in Israel, all alleged violations of international humanitarian law and human rights law since April 2021.[5] On 22 June, before the Committee on Foreign Affairs, Emigration (3rd) of the Senate of the Republic (115th Meeting, XVIII Legislature), the Deputy Minister of Foreign Affairs and International Cooperation, Ms. Marina Sereni, explained Italy’s vote merely underlining that it was part of a balanced position shared by most of the EU partners.
In more general terms, it is worth noting that the resumption of hostilities in Gaza prompted the Italian Government to restate its position on some long-standing issues related to the Israeli-Palestinian conflict, including Israel’s settlement activities, demolitions, confiscations, and evictions in the Occupied Palestinian Territories. On 19 May, the Minister of Foreign Affairs and International Cooperation, Mr. Luigi Di Maio, reiterated both before the Chamber of Deputies (511st Meeting, XVIII Legislature) and before the Senate of the Republic (328th Meeting, XVIII Legislature) that Italy aspires
to preserve the viability of a two-State solution, preventing further de facto annexations, demolitions and evictions by Israel, which are actions contrary to international law.
Moreover, he underlined that the status quo of the Holy Sites must be fully respected. Beside this general statement on the need to preserve the two-State solution, Italy expressed its stance on at least three specific legal issues emerging from the 2021 Israeli-Palestinian crisis: firstly, the incompatibility of rocket attacks fired from Gaza with international humanitarian law;[6] secondly, the need for Israel’s military response to prior attacks to comply with the requirement of proportionality; lastly, the potential repercussions of Israel’s counter-terrorism measures on the right to public participation of Palestinian civil society organizations.
With regard to the launch of attacks from Gaza towards Israel, Italy aligned itself with the position of the EU, which “strongly condemn[ed] the indiscriminate firing of rockets into Israel by Hamas and militant groups in the Gaza Strip, directly harming civilians”.[7] On 21 May, at the General Assembly’s plenary meeting on “The situation in the Middle East”, the Deputy Permanent Representative of Italy to the UN, Mr. Stefano Stefanile, summarized Italy’s position as follows:
Italy firmly condemns the indiscriminate launch of rockets from the Gaza Strip into Israel by Hamas and militant groups: these actions are unacceptable and must cease immediately.[8]
On 19 May 2021, statements along the very same lines were reiterated by Mr. Di Maio both before the Chamber of Deputies (511st Meeting, XVIII Legislature), and before the Senate of the Republic (328th Meeting, XVIII Legislature). Mr. Di Maio condemned rocket attacks from Gaza also during phone calls with his Israeli counterpart, Mr. Gabi Ashkenazi, and with the Minister of Foreign Affairs of the Palestinian National Authority, Mr. Riyad Al Malki.[9]
Turning now to the second element of legal interest, that is, Israel’s military response to previous attacks, it must be noted that it raised proportionality questions and attracted criticism from the international community. On 18 May, after an informal meeting of the Foreign Affairs Ministers, the EU High Representative for Foreign Affairs and Security Policy, Mr. Josep Borrell, clarified that they “support Israel’s right to self-defence, fully”.[10] However, he pointed out that “this has to be done in a proportionate manner and respecting International Humanitarian Law”.[11] Similar views were expressed by the UN Secretary General at the General Assembly’s 67th plenary meeting.[12] As for Italy, on 19 May, Mr. Di Maio read the following statement before the Chamber of Deputies (511st Meeting, XVIII Legislature):
While recognizing Israel’s right to protect its civilian population, we emphasize at the same time, as also recalled by the UN Secretary-General and EU High Representative Borrell, that the response must be proportionate to the attack suffered and in full respect of international humanitarian law.
Along the same lines, on 22 June, Ms. Sereni orally replied to a parliamentary question (no. 3-02611) before the Committee on Foreign Affairs, Emigration (3rd) of the Senate, reiterating that the Italian Government had “clearly reaffirmed Israel’s right to protect its civilian population, while recalling the need for a proportionate response to the attack”. An almost identical view was expressed by Mr. Stefanile at the General Assembly’s plenary meeting on “The situation in the Middle East”.[13] On this occasion, he emphasized “that Israel’s military response must be proportionate and respectful of the international humanitarian law”.[14]
Italy’s invocation of a “proportionate response” might be read in at least two different ways.
A first potential interpretation is that the reference to Israel’s right to protect its population evokes the right of self-defense,[15] as enshrined in Article 51 of the UN Charter. In this regard, Mr. Di Maio and Mr. Stefanile affirmed, as reported above, that the Israeli military response must be both proportionate and respectful of international humanitarian law. The use of the conjunction “and” would suggest that Italy considers two separate but cumulative conditions to assess the legality of Israel’s use of force: proportionality under the jus ad bellum, as well as the need to observe the applicable jus in bello.[16] Such interpretation complies with the principle of equality of belligerents and entails the separation between jus ad bellum and jus in bello. Indeed, as has been pointed out in the scholarly debate, military actions taken by a State exercising its right of self-defense must still comply, separately, with jus in bello requirements.[17]
The second possible interpretation of Italy’s position starts from the assumption that Gaza is still part of the Occupied Palestinian Territory and that Israel, as the Occupying Power, cannot resort to force under jus ad bellum against the territory it occupies.[18] In an occupied territory, the Occupying Power has first and foremost a duty to restore and maintain, as far as possible, public order and life.[19] From this perspective, Italy’s reference to “the need for a proportionate response” would instead underline that the force that Israel can legitimately use is not unlimited under the jus in bello.
In this respect, the view has been taken that military necessity is not only a principle that legitimizes attacks, but also a limiting factor that restricts the kind and degree of force, which can only be used to get “what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances”.[20] Military necessity is thus interpreted as a guiding principle informing the entire legal framework of international humanitarian law and implying proportionality considerations inherent in the jus in bello.[21]
Lastly, besides the escalation of hostilities between Israel and Palestinian armed groups, the year 2021 was marked by another significant event for the Israeli-Palestinian question. On 22 October, the Israeli Defense Minister, Mr. Benny Gantz, officially designated[22] six major Palestinian civil society groups[23] as “terrorist organizations”, claiming ties between them and the Popular Front for the Liberation of Palestine, a group included in the EU list of entities subject to restrictive measures.[24] Such a decision was met with strong criticism by the UN High Commissioner for Human Rights, who underlined that the Israeli counter-terrorism regime must not target legitimate human rights and humanitarian work and that Israel’s decision was “based on extremely vague or unsubstantiated reasons”.[25] The EU also voiced concerns over the designation of the six non-governmental organizations.[26] Similar views had been expressed even earlier by the Italian Government. Indeed, on 27 October, Ms. Sereni conveyed in an official statement Italy’s grave concern for Israel’s decision by further stating that:
Many of these organizations maintain fruitful collaborative relationships with numerous donor Countries, including Italy, for the implementation of development cooperation and humanitarian assistance projects. Italy believes that the role of civil society organizations is fundamental and indispensable in the promotion of human rights and democratic values.[27]
On 30 November, answering two parliamentary questions (Nos. 5-05967 and 5-07143) before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies, Ms. Sereni asserted that Italy agreed with other EU Countries to urge Israel to share “more detailed evidence” in support of its allegations, as the information provided till that moment did not appear to be sufficient to determine their validity. Hence, Ms. Sereni clarified that the Italian Government had not pre-emptively suspended funds for development cooperation in the Palestinian territories as, to that date, none of the local partners of the Italian cooperation projects had been listed as terrorist organizations by the UN, the EU or the United States.
Giulia Cagol
A quotable version of this post was published in the Italian Yearbook of International Law: Cagol, “The Resumption of Hostilities between Israel and Palestinian Armed Groups and the Qualification of Palestinian Civil Society Associations as Terrorist Organizations”, IYIL XXXI (2021), 2022, pp. 529-535; available here.
[1] EU Statement at the Security Council Open Debate on “The situation in the Middle East, including the Palestinian question”, 17 May 2021, available here.
[2] Secretary-General’s remarks at press encounter with Foreign Minister Sergey Lavrov of the Russian Federation, 12 May 2021, available here.
[3] Statement delivered by the Deputy Permanent Representative of Italy to the UN at the General Assembly plenary meeting on “The situation in the Middle East”, available here.
[4] The EU Countries that abstained were Denmark, France, the Netherlands and Poland. Interestingly, while some EU States voted against the resolution (namely: Austria, Bulgaria, the Czech Republic and Germany), no EU States voted in favor.
[5] UN Human Rights Council Resolution S-30/1 of 27 May 2021, UN Doc. A/HRC/RES/S-30/1.
[6] International humanitarian law protects civilian objects against the effects of hostilities by prohibiting attacks that are “of a nature to strike military objectives and civilians or civilian objects without distinction” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, Art. 51(4); ICRC Database on Customary International Humanitarian Law, Rule 12).
[7] See supra note 1. These conducts would run counter humanitarian law: see the previous note.
[8] See supra note 3.
[9] On 19 May 2021, Mr. Di Maio appeared before the Chamber of Deputies (511st Meeting, XVIII Legislature) and stated: “[j]ust yesterday I attended – after having encouraged the High Representative Josep Borrell to convene it – the extraordinary meeting of the Foreign Affairs Council. Also, yesterday I had a phone call with my Israeli counterpart Ashkenazi, and the day before I spoke with my Palestinian colleague Malki. In addition to other meetings with key players in the area, two days ago I also met, in a visit that had been planned for some time, the Iranian Minister Zarif, to whom, as to others, I expressed my strong concern about the attacks in Israel and Palestine, condemning the rocket attacks from Gaza as unacceptable and hoping, at the same time, for prompt de-escalation”.
[10] Extraordinary informal videoconference of the EU Foreign Affairs Ministers on Israel/Palestine: Press remarks by High Representative Josep Borrell, available here.
[11] Ibid.
[12] UN Secretary-General’s Remarks to the General Assembly Meeting on the Situation in the Middle East and Palestine, 20 May 2021, available here. On this occasion, he urged “the Israeli authorities to abide by the laws governing armed conflict, including the proportionate use of force” and called on them to “exercise maximum restraint in the conduct of military operations”.
[13] See supra note 3.
[14] Ibid.
[15] Following this interpretation, Italy’s position should be understood as consistent with Israel’s stance as expressed, inter alia, in a letter to the UN dated 12 May 2021. On this occasion, the Permanent Representative of Israel stated that Israel has the “right and duty to defend its people and sovereignty” and called “upon the international community to unequivocally condemn the indiscriminate attacks by terrorist groups in the Gaza Strip against Israeli civilians and population centres and to support Israel’s fundamental right to self-defence”, UN Doc. S/2021/463, available here.
[16] An almost identical position has been expressed by the International Court of Justice (ICJ) in the Nuclear Weapons advisory opinion. On this occasion, the ICJ maintained that “a use of force that is proportionate under the law of self-defense, must, in order to be lawful, also meet the requirements of the law applicable in armed conflicts which comprise in particular the principles and rules of humanitarian law” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226 ff., para. 42).
[17] Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus as Bellum”, EJIL, 2013, p. 235 ff., p. 240; Sassoli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare, Cheltenham, 2019, p. 457 ff.
[18] Remarkably, the ICJ, in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall, clearly stated that Art. 51 of the UN Charter cannot be invoked to justify attacks against the Occupied Palestinian Territory (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136 ff.).
[19] The academic debate centers on whether the force used by an Occupying Power, as part of its obligation to restore law and order, is governed by jus in bello or by human rights law. Some scholars highlight that the legal framework relevant in a specific case of belligerent occupation depends on the nature of the security threat being faced by the Occupying Power, as well as by the degree of control exercised over the occupied territory (see Watkin, “Use of Force During Occupation: Law Enforcement and Conduct of Hostilities”, IRRC, 2012, p. 267 ff.); other academics argue that the use of force by the Occupying Power against persons under its effective control is governed by human rights law on law enforcement operations (see Sassoli, cit. supra note 17, p. 320).
[20] Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, ICRC, 2009, p. 77 ff.
[21] Ibid.
[22] See the designation of the six organizations here.
[23] The targeted Palestinian civil society groups are the Addameer Prisoner Support and Human Rights Association, Al-Haq, the Bisan Center for Research and Development, Defense for Children International-Palestine, the Union of Agricultural Work Committees and the Union of Palestinian Women’s Committees.
[24] The decision was based on the Israeli Counter-Terrorism Law of 2016, which prescribes severe legal measures for targeted organizations, their members and their supporters. On 7 November, five of the six non-governmental organizations were also declared “unlawful” in the Occupied Territories under the 1945 Defense Emergency Regulations (as the Union of Agricultural Work Committees had already been outlawed).
[25] Office of the High Commissioner for Human Rights, “Israel’s ‘terrorism’ designation an unjustified attack on Palestinian civil society – Bachelet”, 26 October 2021.
[26] On 28 October, the UE Spokesperson for Foreign Affairs and Security Policy released a statement arguing that “[t]he EU takes very seriously the listing of six Palestinian organisations by Israel’s Ministry of Defence. These listings have far-reaching consequences for the organisations in political, legal and financial terms. We will be engaging Israeli authorities for more information regarding the basis for these designations” (Israel/Palestine: Statement by the Spokesperson on the listing of six Palestinian organisations as terrorist organisations, 28 October 2021).
[27] The Deputy Minister’s statement is available here.
Italy's Diplomatic and Parliamentary Practice on International Law 