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How Israel weaponizes International Law

[This version of the article first appeared on the Portside Snapshot page on 7th June 2021.]

In an article published last winter in the Harvard International Law Journal, legal scholar Naz K. Modirzadeh criticizes contemporary scholars working on the laws of war for their “distanced, remote, and abstract” work. Often devoid of both political context and historical background, such scholarship, Modirzadeh laments, often makes “no reference to . . . people, to their experience of war, to our political responsibility for the war they [live] through, or to our fundamental and simple sense of how international law did and should see them.” Instead, Modirzadeh implores scholars to engage in “passionate” writing that “reflects a kind of moral situatedness, a willingness to take seriously the professional ethics and moral agency of writing about international law and war to audiences that have power to make decisions about war.”

Against the backdrop of yet another Israeli onslaught against Palestinians in Gaza, I hope to heed Modirzadeh’s call—to speak about Israel’s violent weaponization of international law not from a place of manufactured scholarly neutrality but from within the colonial context that has made Israel’s repeated crimes in Gaza, as well as the rest of historic Palestine, possible.

This reality—more than seventy years of Israeli settler colonialism and ethnic cleansing—has long been crystal clear to Palestinians themselves, to scholars of Palestine, as well as to Israelis, many of whom support these policies. It is just beginning to make its way into mainstream media discussions of Palestine in the United States. But most Western legal analysis of Israeli violence in Gaza still ignores this colonial backdrop, as well as the anticolonial nature of Palestinian resistance to it. This context is vital to understanding the Israeli government’s manipulation of international law to avoid its humanitarian obligations in Gaza and wantonly kill Palestinians living in the besieged strip.

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Attacking Gaza. . . Again

To appreciate Isreal’s legal distortions and their relationship to its colonialist project, it is essential to place the current crisis in context. The latest onslaught in Gaza was prompted most immediately by various Israeli actions in occupied East Jerusalem over the last few weeks. In April Israeli police raided the al-Aqsa mosque, the third holiest site in Islam, on the first night of Ramadan and then barricaded Damascus Gate plaza, a popular gathering place—severely limiting what little remains of Palestinian communal space in the city.

Israeli authorities also joined forces with Israeli Jewish settler groups trying to evict and displace Palestinian families living in the East Jerusalem neighborhood of Sheikh Jarrah. Throughout April and early May, Israeli forces harassed these families and brutally cracked down on protests and sit-ins organized in Sheikh Jarrah to support Palestinian efforts to remain in their homes. As this repression continued, Israeli forces escalated events even further, starting on May 7 and continuing throughout the last days of Ramadan, by once again attacking the al-Aqsa mosque compound, where they launched stun grenades, rubber bullets, and tear gas, including against worshipers praying inside the mosque.

All together, these various incidents sparked solidarity protests organized by Palestinians across historic Palestine. Though it is hard to pin down the exact date, these demonstrations appear to have substantially increased in early May. Israeli police and military forces, in tandem with roaming groups of armed Israeli Jewish settlers, responded to these protests with lethal violence, home invasions, and arrests, in the West Bank as well as in various cities within Israel itself.

Hamas, which won political power in Gaza in 2006 elections, responded with a warning to the Israeli government: either stop the attacks or face armed resistance. Israel’s attacks did not cease, so on May 10, a few days after issuing its warning on May 4, Hamas launched its crude unguided rockets into Israel. While its Iron Dome defense system repelled most of these rockets, Israel pummeled Gaza with its advance weapons technology. By the time a ceasefire took hold on May 20, Israel had killed at least 243 Palestinians, including 66 children. Israeli violence has also injured approximately 1,900 Palestinians and displaced 90,000 residents of Gaza; Hamas rockets killed 12 Israelis, including 2 children.  

But even these recent events do not tell the whole story. Understanding Israel’s violence inside Gaza today requires a longer-term perspective on how occupation and colonialism transformed the region into an extreme site of Israeli state violence.

Since the 1967 Six-Day War, the international community has recognized Israel as occupying Gaza, the West Bank, and East Jerusalem. Given the long-standing, indefinite nature of this occupation—including large settlements in East Jerusalem and the West Bank—United Nations officials have begun to refer to it as an “occu-annexation.” While Israel asserts that its occupation of Gaza ended with the withdrawal of settlements there in 2005, the claim is obviously belied by the unconscionable facts on the ground and rejected by the international community. Hamas has only nominal political authority; effective control of the area remains with Israel. In 2007 the Israeli government supplemented its occupation of Gaza with an economic and military siege of the strip, which continues to this day. In addition to controlling Gaza’s air, land, and sea borders, Israel dominates all aspects of Palestinian life in Gaza, from access to food and medicine to the availability of electricity. As a result of this occupation and siege, Israel has effectively turned Gaza into a “maximum security prison” that, according to the UN, became unlivable in 2020.

Inside Gaza, nearly 2 million Palestinians reside in a space of only 140 square miles, making it one of the most densely populated areas in the world. This extreme density is the result both of Israel’s current occupation and siege of Gaza—which makes it nearly impossible to leave the area—as well as the ethnic cleansing Israel conducted in the 1947–48 war. That war, fought by Israeli forces against the indigenous Palestinian population and its Arab allies, aimed to secure as much of historic Palestine with as few Palestinians as possible for a future Israeli state. As Israeli historian Ilan Pappé has shown, to achieve that goal Israeli forces pursued an official policy of ethnic cleansing and displacement of the indigenous population. As a result of this policy, 80 percent of Palestinians fled their homes, and many sought refuge in Gaza, which fell under Egyptian control after the war. Today approximately 1.4 million Palestinians in Gaza—about 70 percent of the strip’s population—are refugees or the descendants of refugees displaced by those eliminatory policies.

Israel’s subjugation of Palestinians continues to this day. As various organizations have documented—Palestinian (including Al Haq, amongst several others), Israeli (B’Tselem), and international (Human Rights Watch)—the Israeli government has systematically pursued an apartheid policy of ghettoizing, discriminating against, and displacing Palestinians across all of historic Palestine for decades.

Israel has pursued these policies of subjugation and ethnic cleansing in their most absolute and unrelenting form in Gaza. In 1969 the Israeli cabinet considered a plan to transfer Gazan Palestinians to Paraguay, while in 1992 former Israeli Prime Minister Yitzhak Rabin, hailed in Israel as a peace-maker, declared that he “would like to see Gaza drown in the sea.” In 2007 Rabin’s monstrous dream became Israeli state policy. As part of its siege of Gaza, Israel has purposefully worked to negatively impact the health and well-being of Gaza’s population. As part of these efforts, Israel monitors and controls the caloric intake for Palestinians in Gaza, which has resulted in chronic (and intentional) malnutrition of the local population. As a result of the siege, the neonatal mortality rate in Gaza is seven times higher than that in Israel. Israeli authorities have also systematically prevented vital medical equipment and medicines, including COVID-19 vaccines, from entering the region, and made it nearly impossible for Palestinians in Gaza to leave in order to receive medical care elsewhere. In the words of one doctor who has worked in Gaza, this situation makes “the prevention, treatment and management of . . . chronic diseases much harder and causes avoidable death and disability.”

But it is the full-scale, Israeli-launched massacres in Gaza—including the current onslaught as well as other massive attacks launched in 2008, 2012, and 2014—which have resulted in thousands of deaths that make Israel’s onslaught against Palestinian life in Gaza clearest. In various ways, this long-standing war on Gaza has much in common with the colonial wars waged by European imperial powers in the nineteenth century—including Israel’s legal acrobatics to justify and legitimize its attack on Palestinians.

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Israel’s Rewriting of the Laws of War

This historical perspective is crucial for understanding the way Israel has simultaneously avoided and exploited the law to facilitate its violence in Gaza. On the one hand, Israel has denied that occupation law—a branch of IHL that incorporates human rights norms and is made up of provisions from the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and Additional Protocol I of 1977—applies to its actions in Gaza. At the same time, Israel has relied on colonialist arguments about the laws of war to justify its actions against the Palestinians of Gaza. Through these efforts, Israel has attempted to situate its relationship to Gaza within a war paradigm, which allows Israel far more flexibility than it would have under occupation law to engage in broad-based military attacks.

Israel’s claim to self-defense is a prominent example of these dynamics. In attempting to justify its massive onslaught on Gaza, Israel has repeatedly invoked the right of self-defense, which is recognized by Article 51 of the UN Charter as well as customary international law. The right of self-defense allows a state to do what it is generally forbidden to do: unleash military force against another state.

But there are a number of problems with Israel’s self-defense argument in relation to Gaza. First, as the International Court of Justice (ICJ) has held, the right of self-defense is only a right that states have against other states. Israel and the United States disagree with this view, while others subscribe to the ICJ’s position and still other states take an intermediate perspective. Though the issue remains unsettled, the contention that states can invoke the right of self-defense to justify military attacks against non-state actors is rooted in part in the practices of European colonialist states. Take the 1837 Caroline Affair, which arose when Canadian rebels, actively fighting against British colonial rule, escaped from Canada and took refuge in the United States. British forces pursued the group into U.S. territory where they attacked the Caroline, a ship the insurgents and their supporters had been using. In defending its actions to the U.S. government, the British claimed they were acting in self-defense.

Since then, the Caroline Affair—steeped in the colonial interests of the British crown—has often been cited to justify the claim that states can, in certain circumstances, attack non-state actors residing on another sovereign’s territory. This has been particularly true since the September 11 attacks in 2001, when the question of whether states have a right of self-defense against non-state actors has become increasingly pressing. Like the Caroline Affair itself, the post–9/11 push to recognize such a right has had colonialist reverberations. While the response to 9/11 was immediately framed in terms of war and self-defense, the decision to adopt such a framing, in the words of Antony Anghie, reflects the view that “the threat of terrorism can be addressed only by the reconstruction of a new, imperial order.” Through this war framing of self-defense, the “terrorist,” like the colonial “other,” could be “excluded from the realm of law, attacked, liberated, defeated, and transformed”—results that have been clearly on display in the creation of the Guantanamo Bay military detention regime, as well as other U.S. counter-terrorism policies.

But even if there is a right of self-defense against non-state actors located on the territory of third-party countries, that right arguably does not apply, at least in its conventional sense, against groups that are subject to the occupying power of the state invoking that right. Though some of its judges dissented from this position, in an advisory opinion issued in 2004, the ICJ rejected Israel’s argument that it could invoke the right of self-defense against the Palestinian people. As the Court held, because Israel exercises control over the Palestinian territories and the purported threat to it “originates within and, not outside, that territory,” the right of self-defense does not apply.

Expanding on this position, legal scholar and human rights attorney Noura Erakat and others have shown, occupation law requires that occupying forces defend themselves through the use of traditional police powers. This police authority is “restricted to the least amount of force necessary to restore order and subdue violence.” Though there are some situations where lethal violence can be used, it must be “a measure of last resort.” And while even military force may be permitted in exceptional circumstances, it must be “circumscribed by concern for the civilian non-combatant population.” As Erakat argues, Israel’s use of the far more expansive right of self-defense may protect its “colonial authority,” but it comes at the “expense of the rights of civilian non-combatants” under occupation law.

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Israel’s Manipulation of International Humanitarian Law

As with its approach to self-defense, Israel’s interpretation of international humanitarian law (IHL) has colonialist overtones. As positivist international law began to emerge in the nineteenth century, European countries insisted that IHL did not apply to the “uncivilized”—non-European, non-Western people of color—and, therefore, did not apply to Europe’s wars to take and occupy foreign lands. By placing people of the Global South outside the law, European colonialist gave themselves carte blanche to wage war as they pleased against those populations.

While this overt exclusion of non-Westerners faded away during the course of the twentieth century, it continues to be practiced by some states in other forms, most notably by the United States in its pursuit of its War on Terror policies. In Israel, as well, the government has extended IHL’s colonial legacy by creating new legal categories and interpreting elements of IHL in ways that aim to give itself carte blanche authority to target the Palestinian population.

These efforts are the subject of Craig Jones’s new book, The War Lawyers: The United States, Israel, and Judicial Warfare (2021), which demonstrates, in part, the extent to which Israel and its military lawyers have exploited and rewritten IHL to fit Israel’s colonial ends. Israel’s first major innovation was to create a completely new kind of “armed conflict.” Under IHL, armed conflicts are classified as either international or non-international. As Jones demonstrates, in order to unleash the full force of its military against its occupied Palestinian population, Israeli military lawyers invented a new category in 2000: “armed conflict short of war.”

Though Jones’s book does not unpack the underlying rationale, the scheme is designed, much like Israel’s efforts to invoke self-defense, to shift focus away from occupation law, which places limits on the force Israel can use, and emphasize instead the more malleable and potentially expansive categories of IHL that apply to armed conflicts. These categories revolve around four basic principles: military necessity, which limits attacks to strictly military objectives; distinction, which allows only combatants and military objects to be directly attacked and requires they be distinguished from civilians and civilian objects; proportionality, which prohibits attacks that would cause disproportionate or excessive losses to civilians or civilian objects compared to the anticipated military advantage of the attack; and humanity, which prohibits all suffering, injury, or destruction that is unnecessary to realizing legitimate military objectives.

As Jones’s book describes, in early 2001, the Israeli military wove these basic principles of IHL into a six-point test for killing Palestinians under its newly specified regime of “armed conflict short of war.” Under this test, several conditions must be met. First, the military advantage gained by the killing must be proportional to anticipated civilian casualties and destruction of objects of civilian life. Second, only combatants and those who engage in “direct participantion” in hostilities can be targeted. Third, if arrest rather than killing of a suspected “terrorist” is possible, then arrest must be attempted. Fourth, the obligation to arrest rather than kill only applies to those under “Israeli security control.” Fifth, Israel’s defense minister or prime minister must provide approval prior to a planned attack. And sixth, attacks have to be aimed at “terrorists” who plan to carry out violence in the “near future.” In 2006 the Israeli High Court—the supreme judicial body in Israel—set out its own test for the military’s extrajudicial killings, broadly adopting these same categories.

At first blush one might think this framework comports with Israel’s obligations under occupation law. After all, it seems to combine the basic principles of IHL with the human rights obligation to rely first and foremost on civilian policing. But because Israel claims that it does not occupy Gaza or have effective control of the strip, it does not consider itself bound by policing norms at all. As Jones’s book demonstrates, the test also has a number of other problems under laws of war, including adopting a very broad definition of what violence planned in the “near future” means (a point Erakat has also made).

But perhaps the most problematic aspect of Israel’s extrajudicial killing policy is its definition of “direct participants,” as well as its more general views on who counts as a combatant in Gaza. As Jones shows, from Israel’s perspective, “direct participants” include not only leaders, commanders, and foot soldiers, but also, as a result of the Israeli High Court’s 2006 decision, anyone who provides “support” to these individuals. As Jones points out, such support can include a range of activities, from someone who simply serves as a driver for Hamas politicians to those providing “political or religious support” to groups Israel has labeled as enemies.

Israel’s rules of engagement (ROE)—which are informed by IHL but provide more specific guidance to commanders and soldiers as to when force can be used—reinforce and further expand upon its expansive approach to categorizing combatants. In 2015 the organization Breaking the Silence—composed of active duty and retired Israeli soldiers exposing Israel’s crimes in the West Bank and Gaza—released a report detailing the ROE for Israel’s last major onslaught against Gaza in 2014. According to that report, Israeli soldiers “said they were told by commanders to view all Palestinians in the combat zones as a potential threat, whether they brandished weapons or not. Individuals spotted in windows and rooftops—especially if they were speaking on cellphones—were often considered scouts and could be shot.”

This broad definition of combatants is perhaps the most overt way that Israel’s approach to IHL aligns with colonialist approaches. As Frédéric Mégret observes:

It is arguably at this stage that the discrimination that had been abolished at the level of the actual operational rules of warfare sneaks back in and niches itself at the heart of the laws war. From ‘how should one deal with ‘savages’ in war?,’ the question becomes ‘who is a combatant?’ (and the implicit answer. . . is ‘not a savage’).

As part of its expansive, colonialist approach to who is or is not a combatant, Israel has pathologized Palestinian life itself as a potential threat. This policy is rooted in the ideology of Zionism, which treats Palestinians as a demographic threat to Israel’s existence as a Jewish state, and it has been operationalized through the Israeli government’s long-standing effort to make Palestinian identity synonymous with terrorism—another key word in Israel’s six-point test for killing.

Since at least the early 1970s, Israel has worked hard to transform “terrorism” from a neutral descriptive term for a particular kind of violent tactic to a normatively infused rhetorical weapon synonymous with unacceptable evil and existential destruction. As many scholars have argued, Israel’s goal in repurposing terrorism was to use it as to delegitimize Palestinian resistance to Israeli violence, colonialism, and occupation. This de-legitimization campaign has come to include all forms of peaceful Palestinian resistance and advocacy for Palestinian human rights. For example, in a report issued in February 2019, Israel’s Ministry of Strategic Affairs and Public Diplomacy insisted that peaceful Palestinian advocacy amounts to terrorism in a new form. “Terrorist organizations see the ‘civilian’ struggle against Israel—demonstrations, marches, fundraising, political lobbying and the so-called ‘peace’ flotillas—as a complementary effort of their armed attacks against the State of Israel,” the report says.

As far as the Israeli government is concerned, it is not just armed or peaceful Palestinian resistance that represents a form of terrorism; Palestinian life itself is connected to what Maya Mikdashi calls the “civilian infrastructure of terrorism.” As Mikdashi writes:

You do not have to pick up a gun in Palestine to be a revolutionary or an ‘enemy’ of Israel. You do not have to protest or throw stones or fly flags to be dangerous. You do not have to rely on underground tunnels for food and cancer medication in order to be deemed part of the civilian infrastructure of terrorism. To be a threat to Israel is easy: You just have to be Palestinian.

The vastly disproportionate numbers of Palestinian civilians killed in Israel’s bloodiest attacks on Gaza are the inevitable manifestation of these policies. In 2008, this toll amounted to 759 civilians out of 1391 Palestinians killed in Gaza; in 2012, 87 civilians out of 167; and in 2014, 1,462 civilians out of 2,104. By contrast, in 2008 just 3 Israeli civilians were killed; in 2012, 4 were killed; and in 2014, 7 were killed.

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The significance of these facts is clear. Israel’s latest attacks on the people of Gaza is part and parcel of Israeli settler colonialism and ethnic cleansing. It is based on the Israeli government’s view that all Palestinians, especially those in Gaza, represent a potential or actual threat to Israel. It is grounded in the pathologizing and devaluing of Palestinian life. And it is all undertaken through uses and abuses of the legitimizing power of the law. It is unacceptable for people of conscience to deny or ignore these facts—especially in the United States, where taxpayer money and diplomacy have both fueled Israeli crimes against Palestinians and shielded them from accountability for decades. As Americans, we have a responsibility to reckon with our complicity.

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Maryam Jamshidi is Assistant Professor of Law at the University of Florida Levin College of Law, where she teaches and writes in the areas of national security, public international law, the law of foreign relations, and tort law. Find her on Twitter @MsJamshidi.