International Law and the Palestinian Struggle
When the going gets rough, the law should provide a logical refuge, although, in the case of Palestine, it rarely does.
Discussing the current events in Palestine based on law and logic might seem irrelevant considering the immense suffering that is being witnessed, but the law provides a possible path to resist the occupation.
In the event “Gaza 2023: International Law and the Palestinian Struggle,” held on November 8, the panel discussed the legal framework surrounding Palestine, its weaknesses, and its possible tools to resist the Israeli occupation.
“I don’t want to be here. I don’t want to be in this room. I don’t want to be on this podium. Israel is carrying out genocide, and my government [Britain] and the governments of Europe, the United States, and Canada are cheering them on. I don’t want to provide a legal analysis. I want to protest. I want to scream. I want to cry. I want to curl up in the fetal position,” said Jason Beckett, associate professor of law at AUC.
He talked about a Gazan friend of his who hasn’t been in contact with her family in Gaza over the last two weeks. Her brother has six-month-old twins, and her sister-in-law is eight-month pregnant.
“By the time her sister-in-law is ready to give birth, there will be no functioning hospitals in Gaza. What is happening in Gaza is genocide, and there is no difficulty establishing that,” said Beckett.
According to him, the atrocity of genocide is taking place within a calamity that is the state of Israel.
“On October 6, 2023, Israel was a settler colonial apartheid state, and international law didn’t care. On October 7, 2023, Israel became a settler colonial apartheid state that was attacked by the natives. On October 8, 2023, Israel became a settler colonial apartheid state, openly engaged in genocide,” said Beckett.
The genocide is taking place in a wider settler colonialist social order, argues Beckett. Israel exists in an economic order managed by international law.
“That is the order that sustains the existence of Israel, Europe, and all of the overdeveloped world. If you want to understand the callousness of Euro-American leaders right now, look at the world they have created and presided over and see that this is one very small genocide unfolding in another much larger one,” said Beckett.
Palestinian borders
Hani Sayed, associate professor of law, said the first important thing to know when discussing Gaza and the West Bank is that it was ultimately about space. Therefore, maps are a very important starting point in this discussion.
“Gaza is 41 kilometers long and 10 kilometers wide, which means that by the time you reach Ikea in Cairo Festival City [from AUC], Gaza will be over. And by the time you have reached Mohandessin, Gaza will be over. That is the space we’re talking about,” Sayed said.
Two million people are put in that space, and two million people are being bombed in that space, according to Sayed. He believes that international law has a bad reputation these days and that the exchange of arguments based on justification and condemnation is impertinent.
“I am aware that international law is historically and structurally implicated in the legitimation of settler colonialism in 1948, in the consecration of an apartheid regime since 1967, and in reproducing the logic of imperial nationalism,” Sayed said.
Legal accountability
As the genocide in Palestine unfolded, the world looked at the International Court of Justice and the United Nations for immediate action. The reality, however, is that implementing supposedly universal international laws is never that simple.
According to Sayed, international law is structurally indeterminate, and for every rule, there is an exception. For every argument, there is a counter-argument.
“If we just neutralize certain assumptions of what we expect from law and focus less on what the law ought to do and try to understand what law is actually doing and how the law is doing that, that would be an important starting point,” said Sayed.
Nesrine Badawi, associate professor in the department of Political Science who teaches international law, talked about the possible tools that might be available at our disposal, but could also be limiting in terms of holding Israel accountable for its actions.
“International law neither shields perpetrators of atrocities from accountability, nor does it create a clear mechanism for holding them accountable. As a matter of fact, it is embedded with the tools to do both,” said Badawi.
She said that while the right to self-determination is traditionally understood as a right of colonial people irrespective of their political preparedness for statehood, since the Cold War, one could witness a shift in the understanding of that right towards an earned sovereignty approach. Here, self-determination is no longer a right one is entitled to, but rather a shift towards civilizational requirements and proving the worthiness of governing yourself.
“This shift allows Israel and the international community to require the Palestinian authority, or Palestinian people more broadly, to prove their ability to govern themselves,” said Badawi.
No refuge in humanitarian laws
While many people currently seem to claim that international humanitarian law (IHL) sides with the Palestinians, the case is not that easy.
According to Badawi, IHL, in this case, boils down to the principle of proportionality, which requires that in the planning of an attack, the military advantage must outweigh the anticipated and not the actual civilian loss of lives.
“The absurdity of this calculation can never be overstated. We are expected to say for this particular military target, the loss of 10 civilians is okay. For this other military target, 100 seems fine,” said Badawi.
According to her, the calculation is not just absurd, inhumane, and cruel, but also logically impossible to assess. That is why it gradually fades into simply a requirement of the existence of a military target.
“What we currently see is assessments of claims of Hamas operatives here, or a tunnel under a hospital, or someone hiding in a refugee camp, without assessing how many lives are expected to be damaged for that operation or that tunnel,” said Badawi.
Though Badawi understands that some might see the proportionality principle as useless, she says it is important because it can be invoked. It can be asserted and used to discipline and shame whenever necessary, as we see with the atrocities committed in Ukraine.
Though it seems like the Genocide Convention provides some hope, as Israel is a part of that convention, the case is not as easy. According to Badawi, Article 9 of the Convention provides for the International Court of Justice (ICJ) jurisdiction on disputes relating to the Convention, potentially creating the space for not needing consent.
“In 2014, Palestine also became part of that Convention, so Palestine might choose to take the same path as Ukraine did against Russia, though questions of Palestinian statehood and its right to appear before the Court might be an issue,” said Badawi.
However, according to Badawi, that issue might be avoided by a third state bringing a case against Israel on the basis of a breach of an erga omnes obligation (a state’s obligation towards the international community as a whole). But even in that case, establishing proof could prove to be hard, as the crime of genocide includes a notion of intent, which is always up for debate.
“Israel’s stated intention is fighting Hamas, steering away from genocidal intent, towards a fight against terrorism. Language always has a subtext that is often a legal argument,” said Badawi.
She said that considering the indeterminacy of international law and that it will be much more likely to benefit the powerful, it is hard to answer what one should do with it; abandon it, critique it, use it strategically?
“I don’t think I know how to respond. I’m not sure what to say, other than to acknowledge that with all the solidarity, it is not my life or my future that is at stake,” said Badawi.
