How International law is abused to cover up Israeli War Crimes – “Israel’s ‘Right to Self-Defence” is Falsely Evoked Since it is the “Occupier of Palestinian Territories”. | Survivability News Op-Ed
By Shahd Hammouri, Lecturer in International Law at the University of Kent. –
On October 7, Israel announced it was “at war”. Following an attack on southern Israeli towns and settlements, the Israeli government declared it was launching a “large-scale operation to defend Israeli civilians”. Two days later, its defence minister, Yoav Gallant, announced a full blockade of Gaza, cutting off supplies of electricity, fuel, water and food; “We are fighting human animals,” he said.
Since then, more than 17,700 Palestinians have been killed by Israeli bombardment of the Gaza strip, more than a third of them children. More than 1.7 million people have been displaced within the enclave, with civilians having no safe zone to flee to.
Amid this death and destruction, the dominant narrative in Western media and political circles has been that this is “a war”, Israel has the “right to defend itself “against “terrorism”, and the Palestinian plight is a “humanitarian” issue. This framing of what is going on – backed with language borrowed from international law – completely distorts the reality on the ground.
Everything that is happening now in Israel-Palestine is taking place within the context of colonisation, occupation and apartheid, which according to international law, are illegal. Israel is a colonising power and the Palestinians are the colonised indigenous population. Any reference to international law that does not recall these circumstances is a distortion of the story.
Israel: A Coloniser
The status of Israel as a colonising state was clear in the early days of the United Nations. It is notable that much of the peculiarity of the case of Palestine, and in turn, its susceptibility to misrepresentation and manipulation, is that it was colonised at the moment when mass-colonisation of the Global South was theoretically ending.
For example, the representative of the Jewish Agency, Ayel Weizman, one of the main actors in enabling the Zionist project, described what was happening at that time as Jewish “colonisation of Palestine” during the hearings of the UN Special Committee on Palestine in 1947, as the recognition of the state of Israel was being deliberated.
Resolutions issued by the UN General Assembly during the 1950s-1970s tended to couple Palestine with other colonised nations. For example, Resolution 3070 of 1973 declared that the UNGA “Condemns all Governments which do not recognize the right to self-determination and independence of peoples, notably the peoples of Africa still under colonial domination and the Palestinian people”.
Similarly, the case of Palestine was also portrayed as a close relative to the case of apartheid South Africa. For example, Resolution 2787 of 1971 said that the General Assembly “confirms the legality of the people’s struggle for self-determination and liberation from colonial and foreign domination and alien subjugation, notably in southern Africa and in particular that of the peoples of Zimbabwe, Namibia, Angola, Mozambique and Guinea [Bissau], as well as of the Palestinian people by all available means consistent with the Charter of the United Nations”.
Following the 1967 war, Israel’s occupation of the West Bank, East Jerusalem, Gaza, the Sinai Peninsula and the Golan Heights, prompted the UN Security Council Resolution 242, which in its preamble emphasised “the inadmissibility of the acquisition of territory by war” and called for the “withdrawal of Israel armed forces from territories occupied in the recent conflict”.
However, the resolutions’ deliberate ambiguity in referring to “territories occupied” in the English version of the text, has been used by Israel to justify its occupation and annexation for over half a century. It also paved the way for Israel to start building settlements – something Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the Palestinian territories, defined in her report A/77/356 as “colonising” the West Bank.
The context of colonisation and occupation was brushed to the side with the signing of the Oslo Accords in 1993, which was presented to the international agreement as a “peace agreement” that put an end to the “Palestinian-Israeli conflict”. It, of course, did no such thing.
The oppression and dispossession of the Palestinian people at the hands of their Israeli colonisers continued.
The Right to Defend and the Right to Resist Occupation
Removing the context of colonisation and occupation has facilitated the portrayal of Palestinians as exclusively being one of two categories: “victims” of a humanitarian crisis or “terrorists”.
On the one hand, framing the plight of the Palestinians as a humanitarian concern covers up its root causes. As multiple UN and rights organisations reports have pointed out, the Israeli occupation and apartheid have devastated the Palestinian economy and pushed Palestinians into poverty. The focus on the humanitarian element perpetuates aid dependency and sidelines demands for accountability and reparations
On the other hand, the narrative that presents Palestinians as “terrorists” obfuscates the reality that the Israeli army’s goal has always been the eradication of the “Palestinian problem” by any means possible, including ethnic cleansing, subjugation, and displacement. It also denies the Palestinian people the right to resist, which is outlined in international law.
The Universal Declaration of Human Rights stresses in its preamble that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. In effect, this means that rebellion against tyranny and oppression when human rights are not protected is acceptable.
Similarly, many UN General Assembly resolutions from the 1950s-1970s, the First Protocol of the Geneva Conventions, and the case law of the International Court of Justice, provide evidence for the legitimacy of peoples’ struggle by all means at their disposal in the exercise of self-determination.
Of course, as they resist in whichever form, Palestinians are bound by the rules of the conduct of hostilities in international humanitarian law.
The denial of the right to resist for the Palestinians goes hand-in-hand with Israel and its allies constantly evoking the Israeli “right to defend itself”. But Article 51 of the UN Charter, which legitimises armed aggression in the name of self-defence, cannot be invoked when the threat emanates from within an occupied territory.
The International Court of Justice re-affirmed this principle in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004).
It is important to point out that even though Israel unilaterally withdrew its soldiers and settlements from Gaza in 2005, it still exercises effective control over the territory. This reality has been blatantly apparent over the last two months as Israel has resorted to cutting off food, water, medical supplies, electricity and fuel – all essential for the existence of the population of Gaza.
According to international humanitarian law, Gaza is occupied by Israel and the latter cannot claim self-defence as a legitimate reason for its aggression against a threat that emanates from within a territory it has effective control over.
In this sense, Israel is perpetrating war crimes, crimes against humanity, and the crime of genocide in Gaza not in the context of “self-defence”, but of occupation. The Israeli army has undertaken the indiscriminate and disproportionate use of explosive weapons, forced displacement of over 1.7 million people in Gaza, the cutting off of fuel, electricity, food, water and medical supplies, amounting to collective punishment.
Unfortunately, these crimes are not an anomaly, but a part of the continued systemic violence inflicted by Israel on the Palestinian people over the past 75 years.
Outdated Laws of War
In trying to justify the shocking civilian death toll in Gaza, Israel and its supporters have frequently evoked the laws of war, throwing around terms like “voluntary human shields” and “proportionality”.
Apart from the flawed arguments and lack of evidence that these claims suffer from, they also rely on a set of norms that were codified by colonial powers and are outrageously outdated.
The laws of war were put together during colonial times to regulate the use of force between sovereign states. The colonies were obviously not considered sovereign equals, and the laws were designed to maintain domination over the indigenous peoples, territories and resources.
These laws do not account for asymmetry in power between parties to a conflict. They do not respond to the technological changes in warfare. They are not designed to account for economic and political interests shaping war. Over the last 75 years, significant efforts have been made to challenge these shortcomings, but states of the Global North systematically undermined them.
This is not surprising given that most contemporary wars happen outside the Global North, and profits coming from the business of war predominantly feed into Global North economies.
It is not in the interest of powerful states to update these laws in a manner that corresponds to the reality on the ground. Instead of updating the laws of war to decolonise them, over the past 20 years, the Global North has imposed a new framework that accommodates its “war on terror”.
It is, therefore, not surprising that as Israel is exterminating Palestinians in Gaza and the West Bank, the mainstream international legal reaction has reflected a continuing colonial attitude which disregards distortions and misrepresentations and refuses to call things by their name – settler colonialism, resistance, and the people’s right of self-determination.
The only way out of the cycles of brutal violence is for the colonial context in Palestine to be fully and unequivocally acknowledged. Israel must end its colonisation, occupation and apartheid in Palestine and engage in reconciliation and reparations.