Nafees Ahmad, Ph.D., LL.M., Associate Professor, Faculty of Legal Studies at South Asian University, New Delhi, India, discusses the failure of international law and policy to address the sitiation in Palestine and Israel...
Editors’ note: Amid surging violence between Hamas and Israeli forces, JURIST is seeking perspectives from around the world. Neither this nor other commentaries in this series constitute JURIST editorial policy, nor do they necessarily reflect the opinions of the editorial team.
The 21st century is marked by globalization and Americanization, with transnational law under US dominance and a strong American influence on human rights. This Americanization of international law often conflates with modern neoliberal hegemonies, which downplay historical arrangements and change rights and injustices. The evolution of international law in this era differs from previous generations, and hegemonic international law has emerged as the primary language for asserting dominance. Studying the Americanization of international law is crucial, as discussions have recently emerged regarding actions taken by the US on behalf of NATO and Israel that seem to violate international law. Israel’s 55-year-long occupation of the Palestinian Territories is a saga of occupation to annexation that subjected the Palestinians to colonialism, apartheid, the legitimacy of occupation, and possible international criminal culpability. The harsh reality of Palestinians living under Israeli occupation for an extended period has a direct and tangible influence on international legal frameworks and legal obligations.
Travesty of Liberal International Order
The liberal international order (LIO), which has influenced US international relations since World War II, is declining due to President Biden’s rejection, criticism of US allies, and support for authoritarian leaders. The order has deteriorated for at least 15 years, with Russia and China aiming to challenge it through substitute regional organizations and alternative standards. Weaker states seek security cooperation and patronage from non-member countries like Saudi Arabia and China, which lack the same liberal political and economic conditions as the US and its democratic allies. A new wave of transnational networks emphasizing nationalism, illiberalism, and right-wing principles is also challenging the LIO. The Biden presidential campaign slogan, “Let’s finish the job,” accelerates these processes, undermining the US’s global standing.
Accountability for International Humanitarian Law
The use of force by Israel on Gaza is considered genocide and a grave international crime. More than 9,800 people have died in the ongoing Israel-Palestine conflict, including 8,306 Palestinians and 1,538 Israelis. Tel Aviv has struck at UN buildings, schools, hospitals, medical convoys, refugee camps, and religious facilities. The UN has ordered the forced evacuation of 1.1 Palestinians from the northern region of Gaza, treating those unable or unwilling to flee as supporters of Hamas. The destruction inflicted upon Gaza is astounding, with an estimated 2.3 million Palestinians navigating dangerous waters for 16 years to survive the harsh economic and social blockade since 2007. Israel’s targeting of forbidden locations and the use of incendiary phosphorus bombs in heavily populated civilian areas are war crimes. Western leadership fails to convince the world that adherence to its rules-based order has anything to do with the UN Charter or international humanitarian law (IHL), demonstrating a calculus of friends and enemies. Occupation situations are officially classified as international armed conflicts under IHL, which is another way of saying they are armed confrontations between two or more states. Human rights law is still relevant in occupation settings in addition to IHL. As a result, an Occupying Power is required by international law to guarantee the local populace’s access to the full range of human rights. The West Bank has been classified as occupied territory under the Fourth Geneva Convention and the Hague Regulations by the UN Security Council, the Supreme Court of Israeli, and the International Court of Justice (ICJ).
Whither Responsibility to Protect and US Culpability?
The Palestinians have been denied legal redress, and the UN should bear more responsibility for implementing the partition plan and Security Council Resolution 242, which demanded the departure of the Israeli military presence. The UN can report on moral and legal wrongdoing but cannot carry out its recommendations without a Security Council resolution. The UN General Assembly can only make recommendations with a two-thirds majority vote, and the global legal system’s remedies are futile if the US culpability does not exempt Israel from accountability under international law. Despite having the law on their side since 1948, Palestinians have been subjected to Israel’s lawlessness for years. The UN’s policy processes can be effectively employed if there is political will. The Responsibility to Protect (R2P) standard was established after the 1999 Kosovo War, requiring UN accountability in situations like Gaza. In 2011, NATO countries turned a limited humanitarian mandate into a regime-changing intervention, leading to the execution of a leader and worsening the situation in Libya. Effective UN action without political will could exacerbate the problem. Israel has never stopped using excessive force, and the international community has not warned or pressured it to leave the occupied Palestinian territories. The UN’s responsibility to protect R2P is to address the suffering of Gazans by establishing a peace force. This force could potentially halt Israeli aggression, strengthen protection for Palestinians, and maintain peace. The Palestinians are currently the most vulnerable people in need of international forced protection. However, the UN cannot stop Israeli brutality without the political will of the five permanent members of the Security Council. Under the current Israeli administration, operationalizing R2P is unfeasible due to the complex context of the situation.
Western Media Defending Israeli War Crimes?
The Western media, particularly in the US and UK, has a biased stance toward Israel’s ongoing violence, supporting Israel’s claim to eradicate Hamas and find its leaders. This divide has led to a lack of proper protection for Palestinians. However, the footage of Israeli aggression toward women, children, and injured individuals has partially removed the mask of state propaganda. Under IHL, Israel is the Occupying Power and defines Gaza as an occupied area, which is irreconcilable with Israel’s discretion. 2.3 million innocent civilians living in Gaza, with 76% either refugees or descendants of refugees, were denied their international legal right of return. Despite attempts to challenge this right, violent Israeli suppression often occurs. This extra-legal impunity leaves Palestinians with no recourse for proper protection.
Ukraine-Palestine: The Crisis of Morality in International Law
There is significant humanitarian hypocrisy in the Western response to the Israeli attack on the Gaza population and the Russian attack on Ukraine. Israel enjoys impunity, while Russia is held responsible for NATO’s double standards and moral and legal dishonesty. This shows that international law is a manipulated set of standards that suit geopolitical players’ goals and frequently conflicting strategic objectives rather than a framework for governing nations on the premise of sovereign equality as essential to the international rule of law. Industrialized countries have no inherent incentive to abide by international law; instead, all international law is constrained by the logical decisions of self-serving parties. This argument dictates that efforts to enhance international collaboration must yield; governments cannot bootstrap cooperation by passing laws and enacting regulations, even though these measures may produce better results. States that find it advantageous to uphold international law tend to act quite haughtily when denouncing those who violate it. However, suppose it serves their interests to condone these grave breaches of IHL. In that case, they will either remain silent or, in this instance, provide unconditional and primarily, but not entirely, indirect support to the government and nation that is engaging in these egregious abuses. Such a dualistic view of international law undermines any argument that it is authoritative and worthy of respect, mainly concerning peace and security. It can be used as a tool of aggressive lawfare against enemies and legalistic evasion for strategic partners and friends. When international law is broken, enemies are hunted out and punished, but vital allies are given a shot of impunity.
Arming Israeli Self-Defense with Nuclear Weapons
The five most powerful nations in the world, who also happened to be the winners of World War II and the first five to develop nuclear weapons, were granted veto power since the UN was intended to be weak in this area. The significance and efficacy of the veto force lie in giving these most potent and dangerous nations, led by the US, the unbridled ability to disregard international legal obligations for nuclear weapons and the UN Charter. Whenever a proposed UN Security Council action conflicts with their strategic objectives, these five deinstitutionalize and defunct international law institutional framework against the very principles and purposes of the UNO. The ICJ ruled that nuclear bomb use is not reconcilable with IHL. However, the ICJ couldn’t make a definitive decision on the legitimacy of the state using nuclear weapons in self-defense situations. Several nuclear-armed states, including the US and the UK, claimed that treaty rules didn’t regulate or prohibit nuclear weapons use when hostilities rules were fully codified in 1977 in the First Protocol Additional to the Geneva Conventions.
Several legal authorities support varying interpretations of what is permissible because the boundaries of self-defense with nuclear weapons are hotly debated in international law. However, it is prohibited to attack a hostile civilian population with excessive force. Over the years, Israel has been guilty of using military force in many ways that, under any circumstances, whether or not justified and rationalized, would not be allowed as exercises of self-defence and would, therefore, constitute war crimes. This use of force in Gaza during the past few weeks has been particularly spectacular. Beyond this, it is debatable if Israel may legitimately rely on self-defence in Gaza, an occupied territory governed by Geneva Convention IV limitations. It is not reasonable for Israel, the Occupying Power, to assert that it is protecting itself against itself. Accepting this mishandled interpretation of the concept of self-defense in the context of an opponent society’s belligerent occupation—in whole or in part—by the international discourse is genuinely puzzling.
War Crimes Trial in International Criminal Court
At least 1,400 persons in Israel and 5,000 in Palestine have died since Hamas began its onslaught in Israel on October 7, 2023, which prompted an immediate and forceful military retaliation from Israel. Although Hamas militants carried out the first crime, the hospital explosion’s cause is yet unknown. The International Criminal Court (ICC) may look at potential war crimes in Israel and Palestine. Palestine joined the court in 2015. Recent appeals have also been made for the US to ratify the ICC treaty. The ICC faces challenges due to its inaction and political weakness in holding powerful Western nations accountable, particularly Israel. The lack of political will to prosecute Israel makes its practical application improbable. Despite not being signatories to the Rome Statute, the ICC has jurisdiction to investigate, indict, and bring charges against anyone who claims to be a victim of crimes committed on its territory. Palestine is one of the ICC Statute’s parties. Following the current wave of unchecked violence, attempts will be made to strengthen the ICC in light of geopolitics. While it would be unrealistic to expect accountability from Israel’s authorities, the desire to present evidence and accusations of Israeli wrongdoing would be persuasive to public opinion outlets and criminalizing civil society activists. In symbolic politics, proving or disproving the veracity of assertions has a significant political impact, and mere submission plays a crucial role.
The UN, governments, and people worldwide are facing a crisis due to the extreme abuse of state power, resulting in one of the most severe instances of genocide since 1945. Observers argue that Israel is using force against Gaza in an ongoing genocide, which is considered the most serious international crime. Preventing genocide is a shared responsibility of all governments, and establishing a Peoples Tribunal on Genocide Prevention in Gaza or on Israel’s War Against the People of Gaza can contribute to a world governed by law. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide has been extensively approved, including by parties involved in the bloodshed in Gaza and its diplomatic interactions.
Nafees Ahmad, Ph.D., LL.M., is an Associate Professor, Faculty of Legal Studies at South Asian University, New Delhi, India. Professor Ahmad teaches IHRL, IRL, CCL, and International Media Law.
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