On Sunday, the US Holocaust Museum posted on X [formerly Twitter], “[w]e just witnessed the deadliest single day for Jews since the Holocaust”.
A week later, Israel is committing crimes reminiscent of those tried at Nuremberg. It has already dropped white phosphorus on Gaza’s port, announced a siege on Gaza in which ‘there will be no electricity, no food, no water, no fuel’ for its two million residents (half of whom are children), and has bombed trucks carrying in food aid from the Egyptian side in what constitutes collective punishment.
Israel is making good on its medieval threats that the enemy would pay a price “like they have never known before.”
At the same time, the Israeli war machine has begun its whirring in contorting international law to suit its needs. The Israeli point of view is likely to be ventriloquised the most in the coming days — it is one in which Hamas’ actions have no basis in international law, and Israel’s very much do. This is not the case.
The right to resist
The Palestinians have the right to resist an Israeli occupation, especially one that forcibly denies them their right to self-determination. This right crystallised during the era of decolonisation and is confirmed in a number of UN General Assembly resolutions.
The UN’s General Assembly Resolution 37/43 entitles an occupied people to resist occupying forces by all available means, “including armed struggle”. General Assembly Resolution 3070 also recognises the resort to armed force by national liberation movements and calls upon member states to contribute moral and material assistance to peoples struggling for their right to self-determination.
Richard Falk, the former UN Special Rapporteur on Palestinian human rights, stated that “Israel’s failures to abide by international law, as a belligerent occupant, amounted to a fundamental denial of the right of self-determination, and more generally of respect for the framework of belligerent occupation — giving rise to a Palestinian right of resistance”.
International lawyers who are partial to Israel argue, however, that it is not occupying Gaza and hasn’t been since it disengaged from the territory in 2005. An occupation under international law requires three criteria to be satisfied — a territory, a hostile army, and for it to exercise effective control.
Israel argues that since disengaging, its soldiers are not present in that area on a permanent basis and do not direct what occurs there. However, the physical presence of permanent troops in occupied territory is not required to determine effective control.
In the List case, the Nuremberg tribunal held that the “test for application of the legal regime of occupation is not whether the occupying power fails to exercise effective control over the territory, but whether it has the ability to exercise such power.” Israel both has the ability to exercise this power and does exercise it — by conducting military operations in Gaza, controlling the import of goods, and supplying it with 60 per cent of its fuel and electricity. It has also maintained a blockade by land, sea and air for the past 12 years, by virtue of which it decides who can enter and leave the strip. It is definitely in effective control.
UN Special Rapporteur John Dugard has said that “statements by the government of Israel that the withdrawal ended the occupation are grossly inaccurate”. Moreover, the fact that Israel is so easily and quickly able to besiege the strip is itself a sign that it possesses the ability to exert effective control over it.
The right to self-defence
As an occupying power, Israel does not have the right to self-defence in a territory that it occupies. Instead, the legality of conduct is determined by the laws of war. Under these laws, Israel must ensure that civilians and civilian objects are not deliberately targeted, any collateral damage is not excessive to the military advantage sought, and where precautions can be taken to protect civilian life, they are.
Israel’s declaration that it will completely besiege Gaza is not a violation of the laws of war, which do not prohibit sieges. However, its statement that it will be cutting off water, food and power supplies would infringe the law of armed conflict given it prohibits the starvation of civilians as a method of warfare and makes this a war crime.
The Israeli High Court itself has ruled that “the State of Israel accepts and respects the rules prescribed in the laws of war, and it is committed to continuing to supply the amount of fuel and electricity needed for the essential humanitarian needs of the civilian population in the Gaza Strip”.
Ironically, Israel is now violating even its own minimally established rules. Moreover, as an occupier, it has the primary duty to ensure that food and medical supplies are available to the occupied population, but if it cannot do this, it must agree to relief schemes on its behalf. As Israel is currently bombing trucks bringing in supplies from the Egyptian side of the border, it is flagrantly violating this duty and is using starvation as a method of warfare to force Hamas to capitulate — a form of collective punishment, which is also prohibited.
Israel also routinely targets civilian objects but does so with a thin ‘legal cover’ by defining all institutions and individuals associated with Hamas as legitimate military targets. It often provides no explanation for why civilian buildings have been attacked or for destroying schools, mosques and hospitals. If it does, it argues that they housed members of Hamas or weapons caches. In past military operations where such explanations were offered, Amnesty International’s field workers found no evidence of ‘secondary conflagration’, which would be there if weapons actually had been present at the scene.
In an attempt to signal its compliance with the law, Israel engages in the ‘technologies of warning’ by doing what it calls roof knocking — directing artillery fire at corners of buildings, dropping leaflets or making calls to warn those inside to leave before more powerful weapons are used. Once these precautions are taken, it targets civilian areas indiscriminately, in violation of the laws of war.
At one point, Israeli war lawyers would advise that any Palestinian civilians who did not heed these warnings were ‘voluntary human shields’ and, therefore, targetable. While the law prohibits the use of human shields, even if they are used, they remain civilians who must be protected.
Israel has just ordered the 1.1 million civilians from northern Gaza to evacuate; however, this order again just seeks to give legal veneer to what is legally unjustifiable. These civilians have nowhere to go, are being forcibly displaced and risk being pushed into unliveable conditions where they fear future attacks. This is itself unlawful.
David vs Goliath
Aside from just looking at this conflict legally though, it is important to remember the almost Pharaonic military asymmetry these parties to the conflict enjoy. Hamas does not have the strength to win against one of the world’s strongest armies, with its technological prowess supplemented by American and British support.
The Palestinians, meanwhile, will suffer the most as they face Israel’s swift and disproportionate revenge. It is hoped that this conflict will give the Arab world a reason to halt the normalisation of ties with Israel. While Saudi Arabia may have already put a pause on its deal, the populations of Bahrain, Egypt and the UAE should force their countries to renege, ignore their interests, and stand for a principled cause.
And that principled cause has legal backing despite the media narrative being so entirely skewed. News stories on the conflict have been likened to “man bites dog” stories which reverse the usual order of events. The international reaction to violence in the Middle East usually follows a familiar Sisyphean script — a strongly worded condemnation, a both-sidesism that localises the dispute in time and space, and calls for restraint.
This time though, there are no calls for restraint. Instead, Israel has been given a carte blanche to do what it will as it makes its legal and political case by showing babies riddled with bullets to US Secretary of State, Antony Blinken, on his recent visit. He called it “depravity in the worst possible way”, while more civilised Israel bombards under blockade.
But who will hold Israel accountable?
In terms of accountability for the war crimes that have been and will be committed by Israel in the coming weeks, it is incumbent upon Israel itself to court-martial its own armed forces. However, Israel has almost always refused to do so. If it does take action, it is usually in the form of disciplinary measures, but rarely by prosecuting or charging its officers.
While any UN Security Council resolution is unlikely given the US veto, the International Criminal Court does have jurisdiction over the matter as Palestine is a party to the Rome Statute. Though the previous ICC Prosecutor was bold in taking powerful countries to task and had pushed for investigations into the occupied Palestinian territories, her British-Pakistani successor has not been largely anaemic in comparison. While rushing to give a statement within 24 hours of Ukraine’s invasion, he waited over three days to give one in this case and seemed reluctant to admit that the court had jurisdiction, even over events taking place in the state of Israel.
A key vehicle for pursuing international criminal accountability is in the domestic courts of other states, through universal jurisdiction. This has been quite a successful avenue and should be pushed by states sympathetic to the Palestinian cause.
In 2001, a Belgian court indicted Ariel Sharon for the crimes committed in the Sabra and Shatila refugee camps in Beirut in 1982. It has been reported that since then, over 1,000 lawsuits alleging war crimes by Israeli ministers and members of the IDF have been filed around the world. This means that were these individuals ever to enter those countries, they could be arrested and sentenced in their courts. However, evasion is also just as easy — by not visiting these countries.
As war rages on, I am reminded of a story I was once told of the head of a Pakistani delegation discussing the Kashmir issue with an Algerian leader and asking for Algerian support. The Algerian leader got up, took the Pakistanis to the window, pointed to a graveyard of Algerian martyrs, and said that is how freedom is won.
My solidarity is with the besieged Palestinians, who are being told to leave a prison by the very guard locking them inside. With all those who will be murdered in the coming weeks, years, and maybe even decades, in their peoples’ quest for self-determination. With those living under brutal occupations around the world who repeatedly resist despite the world telling them they have no right to. Sadly, this is how freedom is won.
Header image: Palestinians take part in a “Great March of Return” demonstration at the Gaza-Israel border on December 7, 2018. — Hosny F Salah/ Shutterstock