Burning the Rules of International Law

By Curtis FJ Doebbler

ccun.org, January 2, 2009

 
Israel's aggression against the Palestinian people of Gaza is a blatant and extremely dangerous violation of international law.
 
Unless immediate action is taken to end this violation and to punish those responsible, the new American administration of President Barak Obama will enter office not only with blood on its hands, but sharing responsibility for one of the most serious violations of international law perpetrated in modern times.
 
First, Israel's aggression against the Palestinian people of Gaza is an unambiguous violation of their right to self-determination. This right is recognized in numerous treaties ratified by Israel and the US, including the UN Charter. It is one of the fundamental principles of international law.
 
States that violate this principle of law are subject to action, including military action by the UN Security Council. Together with the UN General Assembly, the Council  has already condemned Israel's violations of this internationally protected right of the Palestinian people dozens of times. The fact that the UN Security Council does not act has nothing to do with respect for the law, but much to do with a small minority of states' disdain for the law or mere reckless indifference.
 
According to international law, all states may provide the Palestinians all necessary support for achieving their right to self-determination. In addition, all states are obliged not to recognize the illegal situation created by Israel or to support Israel in undertaking illegal acts of aggression against the Palestinian people.
 
To emphasize the importance of the right to self-determination for National Liberation Movements, such as Hamas, and that this right may be secured any means necessary, international humanitarian law or the laws of war treat conflict involving national liberation movements as international armed conflicts.
 
Unless and until states apply these fundamental rules of international laws, states and every actor in the world—including individuals—are bound to understand that there is no law preventing them from using force as long as they can politically deflect any criticisms of their actions. Is this the right message to send? It is doubtful in a world that values the rule of international law.
 
Second, Israel's recent aggression against the Palestinian people also raises a strong prime facie assumption that the international crime of aggression has been committed. Although this crime has not yet been defined for the International Criminal Court it has undoubtedly existed since at least the Nuremberg trials after World War II. In this sense it is a crime that can be prosecuted by many national courts as well as by specialized international tribunals created to try Israelis for their international crimes in Palestine and elsewhere in the Middle East.
 
Third, one of the most serious of all the international crimes is the crime of genocide. This crime is committed when a state or a person acts to kill others or to create conditions of life that will destroy in whole or in part a group of people identified by their national identity. This crime requires that the acts be carried out with intention, but the intention can be found in the cummulation of the acts that constitute the crime of genocide.
 
It is necessary to show that Israel’s acts of genocide are aimed at the Palestinians and intended to destroy them in whole or in part. Israel, however, has made this intention abundantly clear not only in public declarations of its intention to destroy HAMAS—the democratically elected government of the Palestinians people—but by undertaking first an embargo that impoverished and starved thousands of Palestinians in Gaza and then by attacking them with some of the most advanced weaponry that the US could provide them. These attacks killed hundreds of Palestinians, including more than hundred women and children, in just a few dozen hours.
 
Successive UN Special Rapporteurs have already called Israel's actions against the Palestinian people over the past sixty years ‘apartheid’, but after the recent violence there can be little doubt that Israel’s acts may even constitute genocide.
 
When this crime is committed the international community has a responsibility to act to investigate it and bring the perpetrators to justice. This can be done through the domestic courts or through international courts.
 
Recently the UN Security Council ordered the Prosecutor of the International Criminal Court to take action against leading Sudanese officials suspected of genocide. The Council acted even after its own experts determined that there were no grounds for alleging genocide had been committed. Israel's actions against Palestinians in Gaza are a much clearer prima facie case of genocide. Moreover by ordering the ICC Prosecutor to investigate Israeli and it agents for the crime of genocide the Council is acting on much more solid ground than it did in the case of Sudan.
 
Even if the crime of genocide seems too political to be alleged—despite the strong evidence of it having been committed—there are amble grounds for prosecuting war crimes and crimes against humanity.
 
Among the war crimes apparently committed by the state of Israel, its officials, and its military are the acts of the intentional killing of civilians, targeting civilian structures, and even the use of starvation to injure the Palestinians in Gaza. Some of these crimes constitute grave breaches which incur the additional obligation for every one of the almost two hundred state parties to the four Geneva Conventions, to search for and bring to justice all perpetrators of these heinous crimes.
 
Among the crimes against humanity apparently committed by the state of Israel, its officials, and its military are extermination, which is similar to genocide, but does not require proof of intention, the intentional killing of civilians, and indiscriminate bombings.
 
Like war crimes and the crime of genocide the UN Security Council could request that the Israeli officials, soldiers, or politicians responsible for lunching or supporting the unlawful attacks against Palestinians be brought to justice.
 
Likewise, the international community could call for Israel’s state action to be investigated, although finding a forum with jurisdiction might be more difficult.
 
As indicated above, there are also obligations on third states. Among these are the obligations on the United States, not to support Israel’s illegal actions. This means that the US is legally obliged to stop providing Israel the arms it uses to carries out is international crimes. Although this would not prejudice the US’s ability to protect Israel if it was attacked from abroad, but it does prevent the US from facilitating the inhumane violence against people under its jurisdiction, people who are living under an illegal occupation.
 
Arguments such as those that claim that Israel has a legitimate right of self-defense against violence are wrong. Yes, if Israel is attacked by a third country it has a right to self-defense, but I it faces violence by peoples struggling to achieve self-determination the actors have a right to pursue their struggle under international law and Israel has no right to stop them from doing so.
 
The argument of self-defense against Palestinians exercising their repeatedly-recognized right to self-determination is illusionary. The Palestinians have the right to struggle to achieve self-determination by all necessary means. In fact in the last sixty years it has almost always been the Palestinians who have been placed in the position of defending themselves from Israel’s violence.
 
The recent events were precipitated by Israel’s violations of the ceasefire between itself and HAMAS. Yes, HAMAS fired rockets—one of the few weapons it has to use to try to end Israel’s illegal occupation of Palestine—but only after Israel had acted to arbitrarily detain and in some cases wantonly kill HAMAS leaders. But more importantly the fact still unequivocally remains that HAMAS was acting in accordance with international law to further the Palestinian struggle for self-determination, while Israel was acting in violation of international to prevent the self-determination of the Palestinian people.
 
The history of the conflict can also not be forgotten as it provides the context for the recent violence. This history is one of almost half the Palestinian people being displaced from and disposed of their homes by an outside invader. Israel never asked the Palestinians for the land on which it established its religious-based nation; it merely took the land claiming that it had the right to displace Palestinians. Despite the protests of Palestinians and Arab states from the very beginning, Israel pushed ahead with the blessings of the colonial British Empire, which had agreed to grant Israel the Palestinians’ land which the League of Nations had entrusted it to administer.
 
In other words, it I as if someone came into your house; held you and your family hostage in a single room; and claimed a right to the rest of your house. Most of us would feel some degree of injustice. This would undoubtedly be the case even if the occupier claimed that he had a right to your house at some time in the past.
 
Unmistakably, international law takes the view that Israel is in violation of international law. This is not surprising, just as your injustice at having you house occupied would not be surprising.
 
Similarly if the occupier of your house started to slaughter your children, you might resort to all necessary means to prevent this slaughter and you might expect others to assist you. International law also allows the Palestinians the right to resist the slaughter of their people and they might reasonably respect others to support them.
 
International law requires that other states support the Palestinian struggle. When this law is ignored, it is more than the human rights of Palestinians that are violated. Our whole sense of humanity is corrupted and may be destroyed when we fail to correct our reckless indifference to the law.
 

Dr. Curtis FJ Doebbler
Professor of Law
An-Najah National University
Nablus, Palestine