International law did not just fail to regulate the occupation of Palestinian lands, it provided the legal framework for their incremental colonization.-Human Rights Attorney Noura Erakat1
Gaza is not only a human-made crisis. It is an international-law-made one.
The go-to tool for determining which party is in the wrong is international law: turning off the water supply is a war crime (never mind that for years Palestinians were forced to be dependent on Israeli goodwill to have their water tanks filled), killing civilians is a war crime (never mind human rights’ subservience to global politics means little scrutiny over how and when Israel deems a Palestinian to be sufficiently harmless), etc. While the international community browbeats Palestinians into reacting the correct way, Israel continues to act in deplorable ways, bolstered by the legitimacy some aspects of international law, already derived from a colonial order, grants them. Demands that Israel “comply more” with international law as they raze Gaza — the same law they use to their benefit — will not rattle principle into the morally bankrupt.
Noura Erakat, a prominent Palestinian-American legal scholar and human rights attorney, challenges the nature of international law as a paradigmatic moral guide in her book, Justice for Some: Law and the Question of Palestine. Born into a family deeply rooted in the struggle for Palestine, Erakat brings an incisive and reflective perspective that builds on her legal acumen. She argues that international law has facilitated Israel’s settler-colonial ambition. She describes how the interpretation of the law is often subject to manipulation and “legal work,” or the strategic efforts undertaken by legal actors to shape outcomes according to their preferences.
In 1917, the British government promised the Zionist movement a country wherein Palestinians comprised over 90 percent of the population via the Balfour Declaration, incorporated into the Mandate for Palestine in 1922. The subsequent British Mandate, lasting from 1923 to 1948, witnessed significant demographic changes and tensions as mass Jewish immigration occurred, leading to protests and strikes by Palestinians. The Arab Revolt of 1936-1939 highlighted resistance against British colonialism and Jewish immigration and was met with brutal repression.
The aftermath of World War II and the Holocaust increased international interest in a state for Jews, culminating in the U.N.’s adoption of Resolution 181 in 1947. The resolution called for the partition of confiscated land into Arab and Jewish states, despite the Palestinian population numbering twice the Jewish population and the U.N.’s disregard for the former’s “well-being and development.”1 The Palestinians, who owned the majority of historic Palestine, rejected this plan, but the State of Israel was subsequently established in 1948.
Yet, even before the expiration of the British Mandate, Zionist paramilitaries initiated a military campaign to destroy Palestinian towns and villages, aiming to expand the borders of the emerging Zionist state. The infamous massacre in the village of Deir Yassin in April 1948, where over 100 Palestinian men, women and children were killed, would set the precedent for violence that endures to this day.2 From 1947 to 1949, more than 500 Palestinian communities were razed down in a catastrophic event referred to by Palestinians as the Nakba, resulting in an estimated 15,000 Palestinian casualties and forced exile of 80 percent of the Palestinian population.3 The conflict concluded in January 1949 with an armistice between Israel and neighboring countries. The U.N. called for the right of return for Palestinian refugees, which Israel ignored. Regardless, the U.N. accepted Israel as a member state.
From its inception, “the laws of war in Europe in the late nineteenth and early twentieth century to show how the laws of war…were subtly designed to exclude non-European peoples from their protection,” argues human rights researcher and Professor of Law Frederic Megret.4 Erakat similarly describes early legal doctrines, shaped by thinkers like Spanish Catholic theologian Francis de Vitoria, who made the rights of indigenous peoples conditional upon their “resemblance to European society.”1
Despite outward double standards eroding during the twentieth century, the world’s foremost colonial powers, beginning with the Balfour Declaration and subsequent adoption by the League of Nations, “transform[ed] British colonial prerogative into international law and policy,” wherein international law could be purposefully and strategically deployed against a population that existed in a sort of legal black hole, where Israel could justify its actions on an ad hoc basis. Israel’s settlement expansion in the West Bank has been widely criticized as a violation of international law, particularly the Fourth Geneva Convention that prohibits the transfer of an occupying power’s civilian population into the territory it occupies. But, Israel argues that the issue of Palestinians was sui generis, or unique, unlike anything else and so legally exceptional that no extant framework at the time could apply. This was an argument articulated by a Hebrew University law professor, Yehuda Zvi Blum, in 1968: that Palestinian territory was not occupied as a matter of law.
Under international humanitarian law, an occupation occurs when a State exercises an unconsented-to control over a territory on which it has no sovereign title.5 Occupation law requires an occupier to “respect existing laws and institutions of the occupied territory as far as possible.”5 In arguing that Palestinian territories were not occupied, and that they were not under the legitimate sovereignty of any state in the first place, Israel was only obligated to abide by the humanitarian portions of occupation law (access to food, water, etc.). Israel did not have to honor “the territorial or legal and demographic status quo in place” before occupation, as occupation law requires. Nor does it abide by the presumption that occupation is temporary.1
An occupier by definition has no sovereign title over occupied territories, so if Israel was not an occupier, was it a sovereign? No, Blum argued. And as such, Israel had no obligation to extend citizenship rights. Rather, the sui generis of Gaza and West Bank meant “Israel could exercise its authority therein without either preserving the sovereign rights of its inhabitants or absorbing them under its civil jurisdiction.”2 Justifying itself as exceptional in facing unprecedented challenges, Israel took cover under a flimsy veneer of legality while granting itself the authority to make unprecedented decisions in ruthless pursuit of its goals.
For example, Article 51 of the U.N. Charter and customary international law recognizes a “right to self-defense,” which Israel invokes and the media repeats ad nauseam. However, as Professor of Law Maryam Jamshidi clarifies, Article 51 “allows a state to do what it is generally forbidden to do: unleash military force against another state.”6 In other words, only states were recognized as being able to launch an armed attack such that the right to self-defense would be triggered. This changed after September 2001 (9/11) in the U.S. use of Article 51 against non-state forces, a move sanctioned by the U.N.2 Israel quickly appealed to the same argument.
The International Court of Justice (ICJ) in their 2004 advisory opinion held that the right to self-defense applies to states against other states.1 Israel and the U.S. disagreed, with their interpretations allowing for military attacks against non-state actors under the claim of self-defense. The ICJ also distinguished Israel from the U.S. in that, because Israel controlled the Palestinian territories by land, air, and sea, the claimed threat to Israel “originates within and, not outside, that territory,” self-defense does not apply.7 Regardless, the ICJ has no enforcement powers nor ability to intervene and the issue remains contested. Jewish political scientist Dr. Norman Finkelstein illustrates the problem as follows:
Whereas it proclaims the right of self-defense against Hamas projectiles, Israel is in effect promulgating a right to use force to perpetuate the occupation. Were Israel to cease its violent repression, the occupation would end and, ideally, the projectile attacks would also stop as Palestinians went about the business of consolidating their own independent state. The right to self-defense could justly be invoked by Israel only if the attacks continued regardless.8
Furthermore, Jamshidi explains how Israel’s argument of Palestinian territories as neither occupied nor claiming sovereignty over them frees Israel from the obligation to standards of civilian policing norms.6 Not only are parts of Palestinian territory under perpetual martial law, but in 2006 Israel attempted to create a third category of population between “civilian” and “combatant” called “unlawful combatant.” Dr. Craig Jones, a political geographer, describes how such a person could be targeted yet withheld the requisite protection owed to a prisoner of war. Although this was controversial, the Israeli High Court found a way to functionally create such a category by expanding the scope of what was considered as providing “direct support” to combatants. It also circumvented the narrower scope of time application under international humanitarian law, namely that civilians are entitled to protection “unless and for such time as they take a direct part in hostilities.”9 The Court’s semantic gymnastics elevated temporary action into permanent combatant status by “inventing the category of a ‘chain of hostilities’ and by claiming that ‘rest’ amounts to ‘preparation’ (thus constituting participation).”9
Such legal maneuvers paved the way for the designation of Palestinian land as Israeli settlements, expanded Israel’s use of force, and even managed to defend starvation in Gaza (the Turkel Report’s crass declaration, “‘Food insecurity’ does not equate to ‘starvation.’” and Israel wasn’t ‘deliberately’ inducing hunger, Gaza’s propensity for malnourishment was surely happenstance).8
If it is not clear by now — Israel regulates its own rules of war.
Far from being a neutral referee, the international legal order has been instrumental in consolidating Israel’s dominance. Even at points of clear detraction, it is unable to halt Israel’s persistent violations that seek to impose a unilateral solution, which is simply incremental annexation. This is doubly outrageous in the context of today’s continued policy of turning a blind eye and providing financial backing by countries like the U.S. — despite the plethora of evidence documenting Israel’s settler-colonial ideology at the cost of hundreds of thousands of lives and the displacement of over half of Gaza’s population as of October 15, 2023.10
Given all this, Erakat explores whether international law itself can be a tool to liberate Palestine. Of the largest impediments she notes is the lack of any global mechanism or sovereign to enforce international law. Some, like journalist Gunar Olsen, take a harsher stance: “International law has utterly failed to halt or even slow Israel’s brutal colonial project. The institutions of law can be tools in our political movement, but they cannot liberate Palestine on their own.”11 And where financial corruption, bootlicking, and an information war unfold in front of our eyes, it can be tempting to adopt such a jaded outlook. Only a highly attuned select few seem to care about the intricacies of international law, while the remaining majority emerge as war hawks. Finkelstein shares a similarly grim conclusion: “In the end, the human rights community itself succumbed to the Israeli juggernaut.”8
International law is bound by agenda. Rebuke Israel after the fact for legal maneuvers within a system that established its impunity and could do little to halt its occupation begs the question: where was the international community’s ire before? Where is it now? The criteria for what is and what is not justified changes with the march of time and geopolitical interests.3
But Erakat likens law to the sail of a boat. A sail guarantees motion, but its direction is often controlled by the world’s most powerful.
As Muslims, we know the sail is ultimately in God’s control. Allah has already promised us victory; We only hope that we are a part of it. It is the geopolitical structure and rise of secular nation-states — not our deen, not some ill-fated clash of civilizations or religious war — that has betrayed not only Muslims but other religious minorities as well. International law, as it is constantly “made, implemented, broken, and remade” is a consequence of that.
On our end, the issue of what one should or should not do is one that was neatly outlined by Islamic scholar Hamzah Wald Maqbul in a guide he published this past week.12 Collectively as an Ummah, we ought to fulfill the sunnah of the Prophet ﷺ: some need to rally; others need to convince ordinary citizens to lobby their representatives to stop deploying tax dollars to fund a brazenly vile war; others, such as myself and other initiates to the legal and academic world, should take to the type of work Noura Erakat and Craig Jones are doing. However, we all need to reflect on the fact that Palestine will not be freed on the basis of international law alone: geopolitical power, strategic cohesion, effective leadership shaping the use of tools, one of which could be international law, are paramount in fighting against one of the largest injustices of our time. And all of this, rooted in the belief in the Unseen and invocations to the One who controls this all, is absolute.
Disclaimer: Material published by Traversing Tradition is meant to foster scholarly inquiry and rich discussion. The views, opinions, beliefs, or strategies represented in published articles and subsequent comments do not necessarily represent the views of Traversing Tradition or any employee thereof.Endnotes
- Noura Erakat, Justice for Some: Law and the Question of Palestine (2019)
- Noura Erakat, Law and the Question of Palestine (2019)
- Noura Erakat, Justice for Some: Law and the Question of Palestine (2019)
- Frédéric Mégret, From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’ (Jan. 8, 2005). International Law and Its Others, Anne Orford, ed., Cambridge, Cambridge University Press, 2006, https://ssrn.com/abstract=918541
- “Contemporary challenges to IHL – Occupation: overview,” International Committee of the Red Cross, https://www.icrc.org/en/doc/war-and-law/contemporary-challenges-for-ihl/occupation/overview-occupation.htm (Nov. 6, 2012)
- Maryam Jamshidi, “How Israel Weaponizes International Law,” Boston Review (May 24, 2021), https://www.bostonreview.net/articles/how-israel-weaponizes-international-law/
- “ICJ Advisory opinion on the Legal Consequences of the Construction of a Wall in the OPT – Full text,” (July 13, 2004), https://www.un.org/unispal/document/auto-insert-178825/
- Norman G. Finkelstein, Gaza: An Inquest Into Its Martyrdom (2018)
- Craig Jones, The War Lawyers: The United States, Israel, and Juridical Warfare (2021)
- Bryan Pietsch & Sammy Westfall, “What is UNRWA, the U.N. agency in Gaza struggling to help Palestinians?”, The Washington Post (Oct. 16, 2023) https://www.washingtonpost.com/world/2023/10/16/unrwa-palestine-gaza-un-refugee/
- Gunar Olsen, “Why International Law Can’t Save Palestine,” Jacobin (Nov. 2019), https://jacobin.com/2019/11/israel-palestine-international-law-justice-for-some-review
- Hamzah Wald Maqbul, Mawlawi’s Guide to Ghazzah, Ribat (Oct. 12, 2023) https://ribat.org/blog/ghazzah
Law student and advocate interested in international law, history, and Islamic studies. Coffee and crochet enthusiast.