Burning the Rules of
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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
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
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
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