Teaching International Law in the Middle East
A Struggle post-October 7th & Israel’s invasion of Gaza
The first day of this semester happens to be October 8th – a difficult day to start a course on international law, I think to myself, fearing Israel’s response as well as the response to the response by the international community and its meaning for upholding international law. My syllabus for the first half of the semester indicates a discussion of “UN purposes & principles”; “prohibition of threat or use of force”; “right to self-defense” (exception 1); “collective security measures – chapter VII” (exception 2).
Reading the Preamble of the UN Charter
Typically, I start the class by reading the preamble of the Charter of the United Nations (UN-Ch), starting with “WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war (…), reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of (…) nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, (…)” and ending with “do hereby establish an international organization to be known as the United Nations.” This is the moment where I (even after years of reading it out loud in class) usually get goosebumps in light of the pathos as well as the historical backdrop and the collective responsibility it reflects.
Today, I look up and see the disbelief in my students’ faces considering the realities unfolding in Gaza following the horrific attacks by Hamas on Israel on October 7, 2023. These realities include the total blockade of Gaza, the closure of all borders, the disruption of electricity, water, food, medical supplies, fuel, and communication networks, leaving media outlets and emergency ambulances inoperable. These measures have caused a humanitarian catastrophe, collectively punishing every person living in Gaza. The dire situation is exacerbated by the “near-constant, unprecedented bombardment of Gaza” by Israel (killing ten thousands of Gaza residents, among them thousands of children and women).
Students begin to vocalize their doubts about how the pronouncements of ‘equal rights of nations large and small’; the ‘dignity and worth of the human person’; or the ‘respect for obligations arising from international law’ apply to the situation in Gaza. I can’t help but think to myself that the gap between what is legally prescribed (de jure) and what is practiced (de facto) appears insurmountable. One student asks about the concept of a nation and whether Palestine qualifies as one. If so, why do Palestine and Israel not seem to enjoy ‘equal rights’? Someone else comments that Israel does not appear to have ‘respect for obligations arising from international law’ as seen in its illegal occupation of Palestine or in its illegal construction of the wall around the West Bank, both clear breaches of international law, as decided by the International Court of Justice (ICJ) in its Advisory Opinion on the Legality of the Construction of the Wall in 2004. Another student adds that the ‘dignity and worth’ of a Palestinian person appears to have less protection than the one of an Israeli. She continues by saying that while war crimes committed by one government seem to be legitimate under the guise of the right to self-defense, those committed by the militant arm of Hamas seem to trigger collective solidarity for retaliation, with moral, financial or even military support from those States that pledged to uphold the values of the preamble.
I silently concede that I may have to say goodbye to the sequence of my syllabus.
Reading the UN’s purposes and principles
Okay, one may argue the preamble is not binding, so let’s move on to the binding purposes and principles of the UN, which we proceed to read out in the class. Article 1 (1) UN-Ch outlines as the UN’s main purpose, the maintenance of international peace and security. Article 2 UN-Ch outlines the main principles, including sovereign equality of States (para. 1), peaceful dispute settlement (para. 3), prohibition of the threat or use of force (para. 4), and non-intervention into domestic affairs (para. 7). I explain that the golden rule ‘no rule without an exception’ also applies to the prohibition of the use of force, which are in this case: the right to self-defense in the limits of proportionality (Article 51 UN-Ch.) on the one hand, and collective security measures authorized by the Security Council (Chapter VII UN-Ch.) on the other hand.
Once again, students stare at me in disbelief in light of the prohibition of the use of force and its applicability to Israel. One student asks if Israel’s invoked right to self-defense has limitations. I explain that similar to the right to self-defense in domestic criminal law, the defending act is indeed limited by the principle of necessity and proportionality. The commission of international crimes would certainly render Israel’s defending act disproportionate and, thus, unjustified. Another student notes that Chapter VII measures require a Security Council resolution, which seems unlikely due to the anticipated veto of the United States. The lecture turns into an open debate, and I know for a fact that at this point the sequence of my syllabus is ancient history.
Students ask about actions that the UN could take when the Security Council faces another deadlock: I explain that options encompass the possibility of a humanitarian intervention as well as the pursuit of peaceful dispute settlements before the ICJ or the International Criminal Court (ICC).
A collective humanitarian intervention based on a 2/3 majority of the General Assembly according to the procedure indicated in the General Assembly Uniting for Peace Resolution, 1950, is legally possible but appears politically improbable. A unilateral humanitarian intervention without authorization by the Security Council or the General Assembly is built on legally shaky grounds, given that such right is neither codified in treaty law nor can one really speak of a customary international law rule based on a widespread and consistent State practice and opinio juris in view of the condemnation by many States post NATO’s intervention in Kosovo in 1999.
Students argue that the ICJ can only issue an advisory opinion, which Israel will probably again not comply with given its reaction – or lack thereof – to the previous one on the Legality of the Construction of the Wall. One student asks if another legal avenue could include individual criminal proceedings against Israeli military decision-makers before the ICC. Together we develop the conditions for the ICC’s jurisdiction and conclude that this is a vital option, given the substantial likelihood of war crimes being committed in Gaza (ratione materiae), Palestine’s accession to the Rome Statute in 2015 (ratione temporis) and the territorial jurisdiction extending to Gaza (ratione loci), as determined by the ICC’s Pre-Trial Chamber I in 2021. However, the prosecutors and investigators would need to access Gaza to collect evidence, a step that Israel is unlikely to permit. Neither Israel nor the USA are State parties to the Rome Statute, and both “firmly opposed” the Pre-Trial Chamber’s decision in 2021. Israel has ceased even the most basic collaboration with the UN, such as denying to issue UN staff visas, and vowed to teach the UN a lesson amid the UN Secretary-General’s statement acknowledging that the “attacks by Hamas did not happen in a vacuum”.
Contemplating the debate, I find myself grappling with its implications for teaching international law to students generally, and specifically to students in the Middle East. The classroom discussion made clear that Gaza represents a critical juncture not only for the UN but potentially for international law as a whole. It highlighted the UN’s inability to intervene in ongoing international crimes of jus cogens character being committed in this very moment by the Israeli government in Gaza. The Organization’s passive stance in the face of the killings of thousands of civilians, including thousands of children, who were bombarded on their escape routes to the south following Israeli evacuation orders by Israeli airstrikes, people trapped in a territory with all borders closed and essential services, including electricity, water, food, medical supplies, fuel, and communication networks, severed, as well as the destruction of schools, hospitals, ambulances, homes, and critical infrastructure, irreparably damages the UN’s legitimacy mandated to maintain international peace and security. This lack of intervention also exposes the dysfunctionality of international law, showcasing the impunity enjoyed by a ‘not-so-equal State’ due to its political alliances with powerful States. While, of course, this is not the first time we witnessed the dysfunctionality of international law, the nature of this situation is distinct.
This concession presents a significant challenge to teaching international law and raises the question of the effectiveness of teaching this area of law when it appears not to apply equally to all States. More generally, how can one instruct on a body of law when that law is not generally observed by its subjects without ramifications? Should we reconsider the classification of international law as a body of law, diverging from mainstream textbook opinions? Is personal disengagement or institutional exclusion of international law from curricula warranted? Or is it precisely in such challenging times that teaching international law becomes even more crucial?
My optimistic and pragmatic inclination, driven by the necessity of having an (even if imperfect) system in place, leans towards the latter. Teaching the norms of international law empowers students to speak the same legal language and identify violations, even if that does not materialize into consequences for some States. However, in order to uphold standards of credibility, the dogmatic teaching of norms and systems must be complemented by a critical perspective. Gaza has forced even proponents of mainstream international law to give room for reflections on power dynamics inherent in its construction to address the pervasive issues of double standards, impunity, and the built-in politicization of the existing system.