Palestine – Israel: Context Matters!
The horrific attacks against Israel by Hamas on 7.10.2023, killing 1,300 Israelis and kidnapping 199 Israeli and foreign hostages into Gaza, raises the question: how did we get here? This contribution is an attempt to provide a brief historical context, a pledge to protect human dignity on both sides, and a critical appraisal of whether the proclaimed objective of eradicating Hamas and protecting Israelis by military means can indeed be successful. By no means does it intend to justify the despicable attacks by Hamas.
The gradual acquisition of Palestinian territory by the State of Israel, beyond the borders of the initial UN Partition Plan in 1947, by means of force is one of the very few examples in the modern era of international law where an annexation was somehow de facto accepted by the international community, albeit de jure condemnation by international bodies, i.e. UN Security Council in its Resolution 242. The ever-shrinking Palestinian land (from the area between the Jordan River and the Mediterranean Sea pre-1947 to two disconnected areas, the Gaza Strip and the West Bank, including East Jerusalem, so-called Occupied Palestinian Territory ‘OPT’, today) through the Six Day War in 1967 and the continuous illegal Israeli settlement policy led to the radicalization of parts of the Palestinian population and the birth of Hamas in 1987. Numerous assassinations of potential peace figures on both sides and excessive use of force by Israel towards Palestinian demonstrations resulted in the first Intifada in 1987 and 2000, in addition to the failure to implement the Oslo Accords accompanied by escalating violence by militant groups on both sides. With Israel’s construction of the wall around the West Bank in 2003, officially to keep Palestinian attackers from crossing into Israel, the Israeli government demonstrated its ultimate power and its sheer disregard for international law.
ICJ Advisory Opinion
In 2004, the International Court of Justice (ICJ) issued an Advisory Opinion on the Legal Consequences of the Construction of the Wall in the OPT following a request by the General Assembly. The ICJ found that the construction of the wall constitutes a de facto annexation, prohibited by article 2 (4) UN-Charter and General Assembly Resolution 2625 (XXV) (para.121); “severely impede the exercise by the Palestinian people of its right to self-determination” (para. 122); is contrary to International Humanitarian Law (IHL), specifically the 1907 Hague Regulations as well as articles 47, 49, 52, 53 and 59 of the Fourth Geneva Convention (paras. 120, 123); and violates International Human Rights Law (IHRL), namely, the right to liberty of movement, entailed in article 12 of the International Covenant on Civil and Political Rights, as well as their exercise of the right to work (articles 6 and 7), to health (article 12), to education (articles 13 and 14) and to an adequate standard of living (article 11) entailed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child (para. 134). The ICJ further found that Israel’s settlement policy in the OPT violated article 49 (6) of the Fourth Geneva Convention, whereby the “occupying power shall not deport or transfer parts of its own population into the territory it occupies” (para. 120). The ICJ determined the following legal consequences: as regards Israel, complying with the right to self-determination, IHL, and IHRL; ensuring free access to Holy Places (para. 149); ceasing the construction of the wall and dismantling those parts situated within OPT (para. 151); making reparation for all damages suffered by all persons affected by the wall’s construction (para. 152); returning land and property seized for the purpose of constructing the wall (para. 153); and, as regards to all other States, considering the erga omnes nature of Israel’s obligations to ensure the right to self-determination of Palestinian people (para. 155) among others not to recognize the illegal situation resulting from the construction of the wall; not to render aid or assistance in maintaining the situation created by the construction (para. 159); and to ensure compliance by Israel with IHL (para. 159).
None of these pronouncements have been met during the period of 19 years since the ICJ issued its Advisory Opinion. Instead, Israel has continued to build the wall and blockades as well as “segregated infrastructure, checkpoints, settlements encircling Palestinian towns and villages, hundreds of bureaucratic permits and a web of digital surveillance” as described by the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, in her report. In addition, since 2007, Israel has imposed a land, sea and air blockade on Gaza, restricting the movement of people and goods, causing unemployment rates of 46.6%; dependency on food assistance for 62% of Palestinians; limiting access to fresh water, fuel and electricity resulting in power cuts for 11 hours per day; and rendering 7 out of 10 Palestinians refugees. The illegal blockade entraps and collectively punishes over two million Palestinians in the Gaza Strip. In Albanese’s report she finds
“that arbitrary and deliberate ill-treatment is inflicted upon the Palestinians not only through unlawful practices in detention but also as a carceral continuum comprised of techniques of large-scale confinement -physical, bureaucratic, digital- beyond detention.”
She concludes that these violations may amount to international crimes. She further outlines that Israel’s occupation has served as a means of settler colonial expansion by intensifying methods of confining an entire population who, much like any other people would, persistently resist their prison wardens. Also, contrary to the ICJ’s Advisory Opinion, Israel continues its illegal policy of settlements in the OPT, leading to dispossession of Palestinians, forced evictions and demolition of Palestinian homes and their subsequent displacement, as outlined by the Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. As further described in the report, the Israeli occupation policy includes incursions and raids by the Israeli security forces that often result in civilian casualties’ including children. Since the Oslo Accords, Palestine is prohibited from having a military to defend itself against these attacks.
This dire situation further escalated in the past two years with Israel increasing its illegal settlement policy by authorizing retroactively illegal outputs built on private Palestinian land, connecting them to the official electricity grid, and minimizing the administrative requirements for building new settlements and outputs in the OPT while allocating more budget for new settlements (paras. 14-53); tolerating increasing violent attacks by settlers against Palestinians (paras. 64-68); Israeli military raids on the Al Aqsa Mosque and drone strikes on numerous refugee camps, resulting in thousands of displaced people, a catastrophic humanitarian situation in these camps, and the highest rate of Palestinian casualties in 2023, including civilians, children and journalists –like the American-Palestinian Shireen Abu Akleh– since the UN record began in 2004. The building of settlements in the OPT, military attacks on holy sites and refugee camps as well as the indiscriminate killing of civilians and journalists may all amount to violations of IHL. The UN deputy spokesperson Farhan Haq reiterated in this context that “attacks on heavily populated areas are violations of IHL.” The UN Middle East envoy, Tor Wennesland, described the escalation as “very dangerous” and numerous government officials during the last Security Council meeting on 27 September 2023 condemned Israel for increasing illegal settlements; urged Israel to refrain from aggressive rhetoric, military attacks against civilians and impunity for unprecedented levels of settler violence; and warned that this threatened to fuel tensions.
Ten days later, the horrific attacks by Hamas against Israel took place. In response, the military superpower Israel has been launching retaliatory strikes on Gaza with the declared aim to eradicate Hamas by all means possible in order to protect Israel and thereafter live in peace with Palestinians in Gaza.
Critical Appraisal of Proclaimed Objective
Is that even possible? Recent history has taught us that the elimination of terrorist organizations by military means has never been successful. Might it then not be more efficient to address the conditions conducive to the spread of terrorism, including
“prolonged unresolved conflicts, (…) lack of the rule of law and violations of human rights, ethnic, national and religious discrimination, political exclusion, socio-economic marginalization and lack of good governance (…)”,
as outlined by the UN Global Counter Terrorism Strategy. For Palestinians that would mean resolving the current illegal situation of occupation in the OPT as well as the Apartheid system under which Palestinians live, in order to provide a sustainable alternative for Palestinians to live in human dignity. The UN Global Counter Terrorism Strategy outlines clearly that the apprehension and prosecution of
“perpetrators of terrorist acts (must be) in accordance with the relevant provisions of national and international law, in particular human rights law, refugee law and international humanitarian law”.
The complete siege of Gaza, closing all borders, cutting off electricity, water, food, fuel, and communication networks to media or emergency ambulances, causing a humanitarian catastrophe and collectively punishing every person living in Gaza, while conducting airstrikes on highly populated neighborhoods, schools, hospitals, electricity plants and media outlets, killing 3,000 Gaza residents (amongst them at least 853 children) and injuring further 12,500 Palestinians (excluding data from the Al-Ahli Hospital explosion) as of 17 October 2023, and positioning Israeli military sea, air and ground forces, creating an exodus of Palestinians from Gaza, describing them as “human animals” and using food as a weapon goes against the UN Global Counter Terrorism Strategy, the proportionality requirement of the right to self-defense, violates IHL and IHRL and will certainly not lead to address the conditions conducive to the spread of terrorism and thus not protect Israel sustainably. So long as the dehumanizing situation in the OPT continues, radicalization will continue, even if the declared aim of eliminating Hamas is achieved, which seems unrealistic. If the political leaders in Israel indeed wish to protect Israel on the long run, the solution has to be sought politically and not militarily.