According to the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), the death toll in Gaza by Israel’s onslaught has passed 34,000 Palestinians, while thousands more are wounded and buried under rubble. Israel’s massive destruction of homes, schools, and hospitals has left 1.7 million Gazans internally displaced, with no homes to return to after the bombing ends. Meanwhile, the Israeli-imposed siege preventing the unhindered entry of food, water, and other humanitarian assistance has resulted in over one million Gazans facing starvation, famine, and disease. Israel’s actions followed a military incursion into southern Israel by Hamas on October 7, 2023 that resulted in around 1,200 deaths and the taking of some 240 Israelis hostage to Gaza. As the massive killing and destruction by Israel in Gaza continues while the world watches in real time, the persistent United Nations and civil society calls for adherence to international law understandably ring hollow.
The world is at a watershed moment of a clash between a rules-based or law-based order, where the ‘rules’ are set by a handful of powerful individuals and states at the expense of global consensus-based international law and practice. There is no doubt that the delicate scaffolding of international law built over the last several hundred years is being dismantled, rung by rung. This article sets out the major pieces of the scaffolding, the forces at play in dismantling and reinforcing them, and some considerations on whether ‘rules’ or international law are likely to prevail. It is worth emphasizing that these considerations are neither abstract nor confined to the Israel-Palestine conflict: whether international law has any remaining relevance is a critical and urgent issue for the future of humanity.
The Law
Contemporary international law relating to human rights and armed conflict, initially constructed on the foundation of the first Geneva Convention of 1864 to protect sick and wounded combatants, now rests on a number of core treaties governing rules of and in warfare; and the prosecution and punishment of the gravest international crimes as part of international criminal law. A few principles are of greatest relevance in the current moment. The main prohibitions and obligations in warfare bundled into the Four Geneva Conventions of 1949 are that armed forces must distinguish combatants from civilians to ensure maximum protection of the latter at all times; must not target civilians and their infrastructures or deprive them of food, water, and necessities of survival; and refrain from murder, mutilation, torture, cruel treatment, and taking of hostages. What is particularly remarkable about these rules is that the Four Geneva Conventions have been ratified by every single country in the world—including Israel and Palestine—and rest on the fundamental international rule that treaty obligations depend on the consent of state parties. These consensual rules are obligations and prohibitions applying to every state party regardless of whether any other state or non-state actor abides by them. In other words, none of the prohibited acts are permissible because they have been violated by some other actor. International law nowhere permits revenge as an excuse for prohibited acts.
These are universally understood and accepted as state practice, but every one of the above principles has not just been violated, but grossly and systemically violated, primarily by Israel based on the disproportionate killing and destruction in Gaza, but also by Hamas. To set the record straight, Israel’s systematic violations of these principles long pre-date the escalation that began on October 7, as the United Nations has been methodically documenting year by year for almost six decades in the West Bank, East Jerusalem, and Gaza. One illustration of the distorted perspective between how the ‘rules’-based and legal principles apply is that while there is legitimate outrage and concern about the 240 Israelis taken hostage by Hamas, there is little focus on over 3,600 Palestinians held in ‘administrative detention’ in Israeli military prisons, in addition to thousands of other political prisoners. The administrative detainees have been held without charge or trial, on information kept secret from them or their attorneys, and administrative detention orders renewed at six-month intervals are indefinitely renewable. To be sure, these fit the definition of hostage-taking, which the ICRC defines as arbitrary deprivation of liberty.
Israel has burdened the international community with the responsibility of trying to ensure Gazans have the minimum they need to survive.
Another set of binding legal principles comprise the Hague Regulations and Fourth Geneva Convention’s provisions on occupation law. The ‘rules’-based order seems to have eviscerated the primacy of occupation law in the current conflict; occupation law changes what obligations apply, and to whom, in very significant ways between an occupying army and an occupied population. These include the core prohibitions against: “collective and individual forcible transfers of a population within or from an occupied territory”; reprisals against civilians and their property, and the taking or destruction of any civilian or cultural property; and collective punishment or punitive sieges of an occupied population. Under occupation law, an occupier can never acquire sovereignty over the occupied territory, and it is the obligation of the occupying power to provide food, medical care, hygiene, and other necessities to the population it is occupying. Again, in the dystopia of the current ‘rules-based order,’ these legally binding principles are being stood on their head while Israel, the occupier, has burdened the international community with the responsibility of trying to ensure occupied Gazans have the minimum they need to survive. And the Western powers defining what the rules are, appear to demand few limits on Israel’s asserted right to self-defense, whether in the amount of force, collective punishment, use of siege or famine as weapons of war, or even targeting of humanitarian organizations and killing of their staff. Finally, in one of the most serious distortions of occupation law, Palestinians who resist occupation—a right enshrined in international law—have been castigated as terrorists, a designation that is defined nowhere in international law.
The final set of fundamental rules being dishonored are the obligations to prevent and punish the worst of international crimes—war crimes, crimes against humanity, and genocide—crimes the International Criminal Court (ICC) was established in the post-World War II era to prosecute on a universal and non-discriminatory basis. UN organs and international organizations have been documenting war crimes since October 7, and the UN’s Commission of Inquiry has claimed there is clear evidence of war crimes being committed, primarily by Israel, and is calling for the accountability of those perpetrating them.
Palestine has been asking for prosecution of Israeli perpetrators of war crimes, including crimes in Gaza, since 2009. By contrast, when Ukraine similarly asked for prosecution of Russian perpetrators of war crimes, arrest warrants were issued within weeks. The crime of genocide has taken center stage in the challenge over accountability, since jurisdiction over genocide as a universal crime rests not only with the ICC, but also with the International Court of Justice (ICJ). The rules-vs-law-based battle has come to a head over South Africa’s claim of genocide against Israel, Nicaragua’s claim of complicity with genocide against Germany, and the Advisory Opinion Request on Israel’s Policies in the Occupied Territories brought by the United Nations General Assembly at the ICJ.
The Players and the Politics
International law requires political will to enforce it, and weaknesses in the international enforcement system have been exploited by powerful states. International law has failed to end the disaster in Gaza and the broader Israel-Palestine conflict because the western powers have manipulated the main mechanisms designed to enforce it. The primary problem is the structure of the UN organs and the division of authority between the General Assembly and the Security Council as set out in the UN Charter. The 193-member assembly represents the vast majority of the countries of the world, but also the majority of peoples of the world. In contrast, the 15-member Security Council permanently represents only three Western states, Russia, and China, as well as ten other states on a rotating basis. Time and again a single member of the five powerful Security Council states has defeated the will of the majority General Assembly states in refusing the global demand for a ceasefire in Gaza. Under the UN Charter, only the Security Council can invoke its Chapter VII authority for armed intervention to halt breaches of peace and security, and the United States has continued to use its veto power to prevent any such action against Israel. Although the General Assembly can, and has, used its authority to debate and vote on urgent matters that are deadlocked at the Security Council under the Uniting for Peace Resolution, the General Assembly has only the power to recommend.
In a parallel process, the International Criminal Court is hamstrung by the pressure placed on it by its major funders and the politics that the Western powers bring to bear. Without American backing at the Security Council, there will be no UN referral to the ICC. The United States has taken a number of measures to threaten or terminate funding to the ICC and its staff, including revoking former Prosecutor Bensouda’s visa in 2019; Trump’s Executive Order imposing asset freezes and entry bans on staff of the ICC in 2020; and threatening economic sanctions if the ICC moved forward on investigations against Israeli as well as US nationals. The current Chief Prosecutor of the ICC, Karim Khan, is well aware of Israeli and US threats and actions against his predecessor.
The ICC is hamstrung by the pressure placed on it by its major funders and the politics of Western powers.
The ICJ is independent of the UN political bodies in its decision making, but as the international tribunal of the United Nations, must revert to the Security Council for enforcement of its judgments. This process undermines the watershed ICJ provisional measures of January 26, 2024, and again on March 28, 2024, that ordered Israel to terminate all genocidal acts in Gaza; to immediately allow unrestricted humanitarian assistance including food, water, and other essentials to the population; and to cease incitement to genocide and punish those inciting genocide against Palestinians. The United States and Israel immediately denounced the ICJ’s orders, calling South Africa’s case of genocide ‘meritless.’ Within a day of the issuance of provisional measures, Israel claimed that UNRWA staff members participated in the Hamas attack on Israel in October, and, without Israel providing any evidence of wrongdoing or an independent investigation, the United States and other major western donors suspended their funding of the organization. With American opposition at the Security Council, enforcement of the ICJ’s provisional measures is blocked at the United Nations.
Other actors in the UN machinery are similarly powerless to do much more than issue reports and resolutions. A recent surprisingly strong resolution out of the UN’s Human Rights Council on April 5 called on all states to halt arms sales to Israel, emphasizing the ICJ’s provisional findings on genocide and demanding accountability for war crimes and crimes against humanity occurring in Gaza. Critical as such resolutions are in reinforcing and confirming ‘what the law is,’ no other UN organ besides the Security Council has a mechanism to enforce them.
The last, and possibly most important, set of actors to highlight are national governments and courts, and civil society. The governments of South Africa and Nicaragua have taken the lead in filing genocide and complicity to genocide claims in the ICJ, and have been joined by scores of other countries in their applications. At the national level, legal groups have filed a case in the United States against government officials for complicity with Israeli genocide; a complaint in the United Kingdom to investigate officials’ complicity with Israeli war crimes, and a lawsuit in Germany for its arms sales to Israel. They also succeeded in obtaining court orders halting arms exports to Israel in the Netherlands.
The Future: A Hegemonic Rules-Based or Universal Law-Based Order?
The ICJ order of January 26 to Israel to undertake measures to prevent genocide in Gaza disappointed many in not calling for the ceasefire that South Africa had requested. It would, however, have been difficult for the ICJ to issue such a call since it had jurisdiction over Israel, but not over Hamas. The ICJ did order Israel to stop committing the acts—killing, injuring, creating conditions of life likely to kill—that constitute genocide. It could have gone further, as at least one judge suggested, and called for Israel to withdraw forces from Gaza. That said, what the ICJ did order would have effectively ended Israeli troop operations and aerial bombardment in Gaza, had Israel complied. Another less-understood consideration is that the Chief Justice had to take into account the views of two justices unlikely to join the strongest measures—ad hoc Israeli Justice Aharon Barak and Ugandan Justice Julia Sebutinde—in obtaining the broadest consensus possible to give strength to the Court’s orders. Justice Barak’s tenure as former Chief Justice on the Israeli Supreme Court has been closely scrutinized for his decisions that have granted legal cover to Israel’s confiscations of Palestinian land; its discriminatory legal regime and apartheid system; house demolitions; extrajudicial executions; indefinite administrative detention; and the separation wall, among other decisions that ran contrary to international consensus, even as articulated by the ICJ itself. Justice Barak dissented from four of the six provisional measures, while Justice Sebutinde dissented from all of them.
Nevertheless, in the oral proceedings in the two contentious cases (South Africa’s and Nicaragua’s) and the Advisory case, the evidence of Israel’s violent invasion, massive bombardment and destruction of Gaza, and its malfeasance in both the West Bank and Gaza Strip were exhaustively set out for a global audience to read and watch in real time. As a result of the three ICJ cases, Israel’s impunity has come to an end on the international stage. The Advisory case has dealt a major blow against Israel’s narrative that its occupation of the territories it has controlled since 1967, as well as its treatment of Palestinians within Israel since 1948, are consistent with those of a democratic state. In the oral proceedings at the ICJ in the Advisory case, one state after another denounced Israel’s practices as apartheid, as violations of the law on occupation, and of Palestinian self-determination.
The struggle between international law and Western hegemonic rulemaking is in the balance.
Nicaragua’s case against Germany has made the world realize that it is not only Israel that commits depredations against the people of Palestine, but also the states that support it. Germany is, after the United States, the second largest supplier of military equipment to Israel. Prior to Nicaragua’s suit, it was not widely understood that providing Israel with military means is a wrongful act. Now all the governments that supply Israel are answerable for promoting the extermination of the people of Palestine.
The struggle between international law and Western hegemonic rulemaking is in the balance. Three major groups of actors will determine the outcome: the UN’s General Assembly, national courts, and global civil society. The General Assembly can use the Uniting for Peace Resolution more forcefully: it could organize a peacekeeping force to enter Gaza to protect the population. It could ask member states, probably not including the major powers, to contribute soldiers. It would not be the first time that this technique has been used to keep the peace in Gaza. In 1957, the General Assembly, acting under the Uniting for Peace Resolution, dispatched a peacekeeping force to the armistice line separating the Gaza Strip from Israel, the very line that Hamas breached in October. Canadian Prime Minister Lester Pearson, who initiated the proposal for the force, was later awarded the Nobel Peace Prize for Canada’s role. The UN force remained until 1967 when, after Egypt requested its withdrawal, Israeli forces overran its positions, killing 15 of its personnel in the process. A force that might be dispatched in the current situation could have an even more active role. The United Nations has experience sending forces into situations of active hostilities.
The weakness of the United Nations in enforcing ICJ orders heightens the need for civil society to play a role. The existence of the ICJ orders is a powerful tool in pressuring governments. Once the ICJ said that prima facie evidence showed that Israel was committing genocide, the narrative about Israel’s incursion into Gaza changed dramatically. Domestic lawsuits—following the precedents in the United States, Germany, and the Netherlands—are likely to grow, along with the protest actions of millions of individuals who have taken to the streets, pressured their political representatives demanding a ceasefire and an end to arms and funds to Israel, and taken innumerable actions to protest the war on Gaza. Future peace is indeed in the balance, and it cannot be left to a tiny minority of global actors to determine the outcome.
The views expressed in this publication are the authors’ own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
Susan Akram
