In 1988, the government of Luxembourg gifted ‘The Knotted Gun’ – a sculpture – to the United Nations (UN). A symbol depicting the monument is now found at the UN’s various headquarters around the world, reflecting its mission to achieve world peace. States recognized the attainment of world peace in the UN charter and entrusted the UN with upholding it. It appears, however, that the ‘knot’ lies in the UN’s inability to achieve its mission. The UN, like international law, is nothing but a facade concealing the states – and the people in power running them – that decide its policies and actions.

 

At a certain historical moment, following two bloody world wars, states recognized peace and nonviolence as the basis of modern international law and deemed themselves bound by “humanitarian” rules and values. Yet despite the savagery of the genocidal war on Gaza, many countries of the Global North – especially the United States – appear to have accepted it (albeit paying lip-service to some reservations). Such an approach indicates a desire to adapt international law to serve such wars even if that means distorting the law and diverting it away from its objectives. These countries have clearly been trying, for some time, to instigate a change in international law not via new texts but via stances and practices, some of them belligerent, that are gradually being normalized through force in the international arena. 

 

While these stances and practices initially appear heterodox, there is a risk – should they be repeated without strong and resolute opposition from other countries – that they will become a new norm,[1] one that affords powerful countries broader latitude to shirk the controls that international law has so far sought to impose for the sake of world peace. In the case of Gaza, attempts at normalization have occurred via the adoption of Israel’s narratives in order to justify its destructive operations that amount to total war and even genocide. The effect is not just the dehumanization of Palestinians but also the destruction of the principles of international humanitarian law, foremost among them the principle of humanity or the status of the human as the paramount value.

 

Faced with the danger apparent to anyone who aspires to achieve world peace, we deem it necessary to examine the course that the stances of the major countries supporting Israel have taken in order to rouse actual resistance to them and thereby prevent them from becoming future-destroying norms. It is important to amass strength to resist this course and restore the lost balance, lest we lose hope in the humanization of international law as a foundation for building a real and just peace.

 

Before doing so, we must mention that the stances and practices threatening international law that we will address have taken two dangerous directions. The first consists in legitimizing the war or affirming Israel’s entitlement – even though it is an “occupying state” – to wage it, which conflicts with the international law governing the legitimacy of wars (jus contra bellum). The second consists in denying the criminal nature of the military operations, which quickly took on the character of total war or genocide, contrary to the international law governing the rules of war (jus in bello). This we shall elaborate on in this article.

 

An Attempted Coup Against the UN Charter

 

After the devastating Second World War and the drain it put on the colonial powers, a climate hostile to colonialism and supportive of national liberation movements emerged. Consequently, international law took two intertwined courses. The first consisted in reducing the power and tools of the colonial power by depriving it of the right to defend itself against the occupied peoples, while also imposing a duty on every state to “refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence”.[2] The second consisted in arming colonized countries with legal tools to achieve independence by recognizing their right to self-determination, the right to resist, and the legitimacy of their armed struggles.[3] These two courses suggest that international law deemed that the cases of colonialism that survived the Second World War were temporary and should vanish for the sake of achieving world peace. In fact, many Enlightenment philosophers had linked the need to build world peace with ending colonialism (Bentham). Kant – the principal theorist of perpetual world peace – argued that this goal would only be achieved once human civilization became convinced that human beings are equal with one another.

 

The stances of the major countries supporting Israel are akin to a coup against both courses as they strengthen Israel’s legitimacy even though it is the occupying state and undermine the legitimacy of the Palestinian people’s resistance.

 

The Right of an Occupying State to Self-Defense

 

After Operation al-Aqsa Flood, leaders of Global North countries flocked to Tel Aviv, where they repeated – in the presence of Israeli Prime Minister Benjamin Netanyahu – that “Israel has the natural [absolute] right to defend itself”. They followed these displays with two statements expressing the same position. These countries’ insistence on declaring this stance, individually and collectively, is in contradiction with international law and the position taken by the International Court of Justice (ICJ) in 2004. Their persistence reflected their certain knowledge that Israel’s right to defend itself is neither self-evident, nor natural, nor absolute and that they must chant it over and over again in the hope of making it acceptable. The Legal Agenda underscored this point in an earlier article 

 

These countries’ insistence on fabricating this “right” in opposition to international law was confirmed when the proposal that the United States presented to the Security Council on October 25 emphasized this “natural right”.[4] The proposal was rejected by China, Russia, and the United Arab Emirates for this specific reason. It was also confirmed when Britain and the United States rejected the Russian proposal presented on October 16 on the basis that it does not observe Israel’s right to defend itself.[5] The Security Council witnessed debates on this matter after the Americans and Israelis stated, in the first Security Council meeting held after the October 7 attack, that the Security Council and the international community have a responsibility to explicitly support Israel in its “right to defend itself” and “mission to obliterate the terror capabilities of Hamas”.[6] In contrast, the Jordanian representative – speaking for the Arab Group at the UN Security Council on October 16 – emphasized that Israel has no right to self-defense, pointing to the advisory opinion that the ICJ issued in 2004 on this matter. Several countries commended his position.[7]

 

Hence, it is obvious that the states supporting Israel exploited the propaganda about October 7 (including the exaggeration and lying about Hamas’ responsibility) in order to instigate an extremely dangerous change to the substance of international law and, specifically, how it is approached and interpreted – namely recognition of the right of an “occupying state” to defend itself against an occupied people, contrary to its provisions as currently followed. This change creates a twofold danger: besides entitling Israel to wage an offensive against Gaza without prior Security Council approval on the pretext that it is exercising a natural right,[8] this change effectively perpetuates the occupation, entitling it to destroy any resistance movement by invoking the same argument. Making these countries’ stances even graver, they kept stressing “Israel’s right to defend itself” after the offensive took a direction that obviously far exceeds, in terms of objectives and results, the right of defense, eventually amounting to genocide. This indicates the importance that these countries place on putting the occupation, which is at its core based on inequality, before the preservation of the human as a paramount value.

 

UN General Assembly resolutions passed on October 26 and December 12, which called for a humanitarian truce and for the protection of civilians and compliance with legal and humanitarian obligations, constituted a setback for these persistent attempts to establish Israel’s right to defend itself. This is reflected by the comments that the representative of the Zionist entity Gilad Erdan and the permanent observer for the State of Palestine Riyad Mansour made on the first resolution. While the former argued that the General Assembly’s refusal to condemn Hamas is akin to a refusal to acknowledge Israel’s right to defend itself, the latter eloquently – and rightfully – noted that the resolution constitutes a “message” sent by the General Assembly to anyone “attempting to rewrite international law”.

 

While Israel has so far failed, despite being backed by most countries of the Global North, to acquire the right of self-defense, this attempt has certainly exposed these countries’ plan to divert international law away from its original conceptions, which are based on equality among states, and toward observing occupying states’ interest in perpetuating their occupations. If they succeed, they will have dressed the rule of force and hegemony in the clothing of law.

 

Denying the Right of Self-Determination with Accusations of Terrorism

 

Just as the major countries supporting Israel (most of which are former colonial powers) rallied around Israel’s right to defend itself in order to justify its offensive on Gaza, they also rallied around the characterization of Hamas as a terrorist organization in order to deny its right to resist. This potentially deprives Palestinians of the ability to resist and subsequently diminishes their chances of exercising their right to self-determination. In effect, this discourse erodes an internationally enshrined right (peoples’ right to self-determination and the subsequent right to resist) using the accusation of “terrorism”. To this day, terrorism remains internationally undefined and the subject of deep disagreements, even if there is international agreement that it constitutes a “threat to international peace and security”. 

 

Making this discourse even more problematic is the fact that the most prominent source of disagreement that has been impairing UN efforts to draft a comprehensive agreement on international terrorism since 2017 is the insistence by many countries on the need to explicitly distinguish between terrorism, on one hand, and peoples’ right to self-determination and legitimate struggle against colonial and racist regimes and other forms of foreign domination and occupation, on the other.[9] This stance accords with the General Assembly resolution on combating terrorism issued in 1991, the preamble of which reaffirmed the right to self-determination and resist occupation.[10] In cases of occupation, the greatest threat to global peace and security is usually the occupation that the forces accused of terrorism are working to resist, not the resistance movements that the occupying states usually accuse of terrorism as a basis for destroying them and thereby perpetuating the occupation.

 

Two factors made it easier for the states supporting Israel to go in this direction. The first is the accumulated effect of the discourse of the war on terror and the Islamophobia that accompanied it, beginning in the early 1990s and escalating after the events of 11 September 2001. The second is the global propaganda that inflated Hamas’ actions on October 7 in order to demonize the movement and portrayed its attack as having occurred in a vacuum, rather than in the context of decades of occupation, colonialism, racial segregation, ethnic cleansing, and blockading Gaza.

 

Of course, we are not arguing that resistance movements should be whitewashed of war crimes or that international law does not apply to them; rather, we are disputing the use of terrorism or war crime accusations against such movements (in this case Hamas) in order to deny their right to resist. There should be no conflation between the legitimacy of resistance, which still stands, and the legality of any particular action that the resistance undertakes, which can, of course, be subjected to accountability. In this regard, Hamas differs greatly from Israel, which commits the most heinous war crimes without any legal basis for resorting to violence in the first place.

 

Accepting the arguments made by these major countries supporting Israel would lead to a grave power imbalance between the occupying state and the occupied peoples, and render the process of liberation and achievement of international peace more difficult and complicated. So how should we today describe the acts of resistance carried out by Hamas against the Israeli army, which has for approximately three months engaged in a war of genocide and crimes against humanity? Are they internationally legitimate acts of resistance or the acts of a terrorist organization that should be neither recognized nor negotiated with, as the countries supporting Israel suggest? And what about the international community’s responsibility in this conflict? Does its primary duty lie in ending the occupation and all the major violations that Israel has been committing for decades, or does it lie in combating terrorism (Hamas), along the lines of the proposal that the French president made during his visit to Israel after likening Hamas to ISIS? Note also that Israel demands that its actions be assessed by anti-terrorism standards rather than the standards of conventional wars in order to shirk all rules of war and ultimately commit genocide – a subject to which we will return in the second part of this article.

 

A Coup Against the Laws of War (Jus in Bello)

 

Since the very beginning of the war, Israel has explicitly stated, through its president Isaac Herzog, that it will not distinguish between Hamas and the civilians residing in Gaza because their acceptance of Hamas means that it is at war with the whole Palestinian nation, not just combatants. Making this conflation even graver is Minister of Defense Yoav Gallant’s statement demonizing not just Hamas but  all civilians, denying their humanity and equating them to human animals, which he made before declaring a total blockade on Gaza. In the same vein, the prime minister has made statements contending that Israel is implementing Isaiah’s prophecy, likening Gazans to the giants that the Torah called to be eradicated. The prime minister’s words were echoed by several rabbis, who declared that Israel’s frame of reference is the Torah, not international law. All these statements came in parallel with statements from governmental circles about the need to turn Gaza into rubble and evict all its inhabitants to the Sinai desert.

 

Despite the clarity of these statements from the highest Israeli officials, which were quickly embodied by the display of genocidal killing and statements issued by various groups of Israelis (including 400 Israeli doctors who called for the bombing of Gaza’s hospitals), another class of official statements emerged contending that the Israeli army’s operations are not indiscriminate but instead all justified by specific military targets. These statements argue that the thousands of civilian casualties were not intentional but collateral damage resulting from Hamas’ use of human shields. They say that targeting civilian facilities, including hospitals, schools, and houses of worship, is justified because of their use by Hamas. These statements appear to be aimed at alleviating the pressure on the countries supporting Israel, which – unlike Israel – must at least profess to remain committed to international law. This explains why these states and their media are aligned with this discourse and their officials repeat it, while completely ignoring the genocidal discourse as though it does not exist.

 

In fact, the results of the Israeli offensive – particularly the high number of women and children killed (more than 70% of the victims), the displacement of more than 90% of Gazans, the imposition of a total, starvation-inducing blockade on Gaza, and the strikes targeting all necessities of life (especially hospitals, schools, and vital facilities providing water and power) – succinctly demonstrate the sincerity of the former, genocidal discourse and the absurdity and bad faith of the latter. Is it not completely absurd for someone to profess adherence to international law principles requiring discrimination between military targets and civilians while destroying an entire city and depriving it of the necessities for life, in total contradiction with the primary objective of international law, namely to humanize the rules of war? Or are the arguments that such people make to legitimize their operations, which are repeated by the countries supporting them, mere sophisms aimed at circumventing the ban on total war and genocide in order to commit the most heinous of crimes?

 

The absurdity of the claim that Israel’s war is complying with international law is confirmed by the details of the arguments being made to substantiate it. The fact that some of these arguments were previously used by the United States in its wars on terror underscores their danger and the need to refute and confront them in order to prevent them from being normalized. This we shall do here by focusing on two of these arguments.

 

The first argument is that the attacking side has no burden to prove that the civilian sites are being used for military purposes. Israel has claimed that the presence of military targets compelled it to launch its operations that have killed enormous numbers of civilians and destroyed most residential units. The only evidence of a military target that it has provided is the presumption that Hamas is hiding among residences and using civilians as human shields (a statement that the UN Fact Finding Mission on the Gaza Conflict in 2009 debunked). It has thereby destroyed one of international law’s most important safeguards for protecting civilians and differentiating between them and combatants, namely that the attacking side must provide evidence that sites dedicated to civilian purposes are being used for military purposes and that if any doubt exists, these sites must be considered civilian. In this regard, Israel has followed in the United States’ footsteps in its first war against Iraq, when the Ministry of Defense issued a report stating that presenting proof that civilian facilities are being used for military purposes is impossible. Robert Kolb – one of the most important authorities on international humanitarian law doctrine – said that this stance reveals cynicism and contempt for international law that effectively entitle the attacking side to bomb anything. The attacked side must then prove that the target truly was civilian, which is impossible, especially once it has been destroyed.[11]

 

This trend reached its zenith when Israel warned all inhabitants of northern Gaza (more than 1.2 million people) to head south, thereby declaring all of northern Gaza (effectively all of Gaza city) to be a military target. Several authorities on human rights promptly condemned this move as illegal and demanded that it be rescinded because entire cities cannot be declared military targets. In practice, expanding the latitude for targeting civilians in this manner enabled Israel to target specific people (e.g. authors, journalists, and their families) in order to exact revenge on them or deprive Gaza of their special skills or roles (e.g. specialized doctors), which is a war crime and reflects genocidal intentions, as part of its campaigns of destruction.

 

The same argument was made in order to bypass the special immunities enshrined internationally by the Geneva Conventions, especially for medical facilities, archaeological sites, the press, shelter zones, and religious sites. Israel claimed that they are being used by Hamas or that Hamas has tunnels or trenches inside them without presenting any evidence except for videos that have repeatedly proven to be fabricated. In this regard, Israel has also repeatedly endeavored to embroil the countries supporting it by having them adopt its narrative and twisted interpretation of international law. As a result, the world has witnessed the systematic destruction of all hospitals in northern Gaza without any guarantee of the safety of the patients (including premature babies, whose bodies decayed on the beds of the abandoned hospitals) or even their right to treatment. Likewise, the world has witnessed the killing of more than 100 journalists – a record number that exceeds the total number of journalists killed during the Second World War. We have also witnessed the destruction of houses of worship (some of which are among the world’s oldest and part of human heritage), schools, press institutions, UN institutions, and any institution deemed protected under the law.

 

The second twisted argument that Israel and its supporters have made and that paved the way for genocide involves hollowing out the principles of proportionality and precaution. The best example is Israel’s justification for the destruction of a residential complex  without warning its residents (and killing approximately 400 civilians) on the basis that it wanted to kill an important Hamas commander inside. This justification betrays a total abandonment of the principle of proportionality, which requires refraining from any military action that could lead to excessive and disproportionate losses among civilians.[12] The same goes for the forced evacuation of hospitals in northern Gaza and the imposition of a total blockade on it so that Hamas cannot obtain the materials it needs to continue fighting, which effectively violate explicit bans on collective punishment and the use of starvation of the population as a weapon.

 

As a result of these twisted interpretations of international law, we have witnessed, through audio and image, a total genocidal war and, with it, the collapse of all of international law’s controls and safeguards. While the effects of these interpretations have revealed their absurdity and bad faith, as previously explained, they too must be confronted in order to prevent them from being repeated or normalized. Note that the absurdity and bad faith of these interpretations is evident not only in further enabling the most heinous international crimes, as explained above, but also in their negation of the paramount purpose of the UN and international law, namely to achieve world peace. Just as supporting the occupation’s right to suppress resistance perpetuates the occupation, undermining this objective perpetuates the war – which is exactly what Israel is doing.

 

This article is an edited translation from Arabic

 

[1] A l’exception des règles de jus cogens. A/CN.4/659, Commission du droit international, “Formation et identification du droit international coutumier”, 2013. Observation 27: “Selon la Commission, l’apparition d’une nouvelle règle de droit international coutumier peut venir modifier un traité, dans certaines circonstances et si telle est l’intention des parties”.

[2] UN General Assembly Resolution no. 2625 of 1970.

[3] The right of peoples to self-determination appeared among the objectives of the UN listed in Article 1 and Article 55 of its charter. Thereafter, a succession of UN General Assembly resolutions clarified this right (Resolution no. 1514 of 1960, Resolution no. 2625 of 1970, which explicitly recognized the right to “resist”, and Resolution no. 3246 of 1974, which “reaffirm[ed]” in Article 3 the “legitimacy of the peoples’ struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle”).

[4] Russia’s position:

“A separate and major legal problem for the draft resolution is its reference to Israel’s right to self-defense, which, as confirmed by the International Court of Justice’s 2004 advisory opinion on the Legal consequences of the construction of a wall in the occupied Palestinian territory (see A/ES-10/273), is inapplicable in the case of an occupying Power, which is what Israel is with regard to the Palestinian territory.” S/PV. 9453, p. 3.

[5] On October 16, the United States’ representative said:

“The Council and the entire international community have a responsibility to… reaffirm Israel’s inherent right to self-defense under the Charter of the United Nations. Unfortunately, Russia’s draft resolution (S/2023/772) submitted today does not meet all those responsibilities”. S/PV. 9439, p. 3.

On October 25, Russia presented a joint proposal with China in which they adopted a harsher tone toward Hamas and condemned it directly, albeit without mentioning Israel’s right to defend itself. However, the resolution did not receive enough votes. The British rejection stated:

“The United Kingdom could not support draft resolution S/2023/795, proposed by Russia, which once again failed to recognize Israel’s right to self-defence”. S/PV. 9453, p. 8.

[6] “[The] Council must support Israel’s right to defend itself. But supporting that right does not mean echoing empty words. It means standing in solidarity with Israel in our rescue mission to obliterate the terror capabilities of Hamas. If Hamas is not obliterated, such atrocities will be repeated — and not only in Israel. Supporting Israel’s right to defend itself means supporting Israel’s goal of eradicating those cancerous jihadists.” S/PV. 9439, p. 11.

[7] Russian position S/PV. 9453 p. 3; S/PV.9451 Pakistani p. 25, Iranian p. 32; S/PV.9443 Libyan p. 25, Algerian p. 26, Tunisian p. 26, Iraqi p. 29.

[8] Robert Kolb, « Jus contra bellum », Éditions Bruylant, 2003. p. 256.

[9] Iran (A/C.6/72/SR.1); Gambia (A/C.6/73/SR.1), speaking on behalf of the African Group; Kingdom of Saudi Arabia speaking on behalf of the OIC, (A/C.6/73/SR.1); Qatar (A/C.6/73/SR.1); Pakistan (A/C.6/73/SR.1); Lebanon (A/C.6/73/SR.2), South Africa (A/C.6/73/SR.2); Namibia (A/C.6/73/SR.4); Malaysia (A/C.6/73/SR.4).

[10] A/RES/46/51.

[11] Kolb, op. cit., p. 125.

[12] Additional Protocols I of 1977, Article 51, paragraph 2, and Article 52, paragraph 1. See also “Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1”, paragraph 37.