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”.
Reflections
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.
Nora Salem holds the position of Assistant Professor and serves as the Head of the Public International Law Department at the German University in Cairo, Egypt. She has held a number of consultancies with the UN, most recently at the UN Office of Counter-Terrorism on issues related to Human Rights in Counter-Terrorism.
I made a typo in my previous comment.
Point 1 should read: It is simply wrong that Israel fired air strikes at the residents who were evacuated to southern Gaza.
The author is not providing one single source for this baseless accusation.
Hamas shot on the evacuees, not the IDF . . .
Thank you for sharing your perspective as a teacher in Cairo!
Looking beyond our German horizon is always enriching and the international exchange leads to greater mutual understanding.
The 8th of October was indeed a day full of fear. In Israel, there were no courses at the universities on that day. Instead, there were hundreds of funerals of raped, murdered, burnt alive, tortured and beheaded babies, children, women and senior citizens.
And the whole nation feared for the fate of the hostages kidnapped by Hamas/ISIS. What happens to women in Hamas/ISIS captivity is hard to imagine after the ISIS-style rapes committed by Hamas.
Let me add a few comments on your article:
1. It is simply untruth that Israel has who were bombarded on their escape routes to the south following Israeli evacuation orders by Israeli airstrikes.
The author is not providing one single source for this evidently baseless accusation.
Hamas shot on the evacuees, not the IDF [1].
Israel does everything in its power to prevent civilian casualties. Israel warns the population of Gaza of its air strikes via various channels, has established a humanitarian corridor and has introduced a four-hour humanitarian ceasefire every day.
Rather, it was Hamas that prevented the Palestinians from evacuating to the south of the Gaza Strip by shooting at the Palestinians on their way south [2].
The reason for this is that Hamas has based its entire warfare on the abuse of civilians as human shields [3].
This is easy to observe: The evacuation route from North Gaza to South Gaza is the “Salah al-Din” road. After Israel took complete control of this road, tens of thousands of civilians suddenly moved from North Gaza to South Gaza [4].
Meanwhile, these Gaza residents were protected by Israeli tanks from attacks by Hamas terrorists [5]. The IDF has thus protected the lives of Gaza residents from Hamas.
2. The Health Ministry in Gaza is run by the Hamas terror group. Therefore, the death numbers cannot be independently verified. It is also important to know that Hamas distorts the distinction between dead Hamas fighters and dead civilians in particular. Hamas terrorists generally fight in civilian clothing and not in uniforms [6].
Even worse: It is widely known, that – like ISIS – Hamas and Palestinian Islamic Jihad are recruiting child soldiers [7].
Hamas also uses schools, mosques and hospitals for military purposes [8].
As Hamas is abusing children and other civilians as human shields, it is not a surprise that the death toll is not low.
As the proportion of children among civilians in Gaza is very high and Hamas uses civilians as human shields, children also die. However, the proportion of children among the dead is even lower than the overall proportion of children in the total population.
Nevertheless, a high death toll or a “near-constant” bombardment are not war crimes.
When Hamas abuses schools, mosques, hospitals and civilian infrastructure for military purposes, these become legitimate military targets.
Therefore, Hamas is responsible for the destruction of the “civilian” infrastructure, which was turned by Hamas into terrorist infrastructure. The same applies to the deaths of the civilians she used as human shields and the children she recruited as soldiers.
The slaughter of Israelis, the beheading of children and the rape of women, on the other hand, are indeed war crimes.
3. Since the author refers to the hospitals in Gaza, the following should be mentioned: Further proof of Hamas’ abuse of civilians as human shields was demonstrated at the Rantisi Hospital in Gaza. There, the Hamas terrorist Ahmad Siam abused 1,000 patients as human shields. These civilians were unable to leave the building. Only after the IDF had eliminated the terrorist were the 1,000 patients able to leave the hospital [9].
Now let’s look at the Al-Ahli Hospital: On October 14, a misfired rocket by the Palestinian Islamic Jihad, another Iranian-funded terror group in Gaza, hit the hospital.
This was confirmed by several different intelligence agencies [10]. The Palestinian Islamic Jihad Rocket was intended to hit Israeli hospitals.
According to the Hamas-run Health Ministry in Gaza, the blast killed 500 civilians, while several different intelligence agencies spoke of a much much smaller number, a few dozen killed civilians [11].
Either Palestinian terrorists have murdered 500 of its own civilians, or Palestinian terrorists have exaggerated the number of casualties for antisemitic propaganda reasons and have killed a few dozens of its own civilians.
4. Israel is not imposing a blockade on Gaza. This is also not possible, since Gaza has a border with Egypt.
It seems understandable that a few days after the worst massacre of Jews since the Holocaust, Israel is not pursuing a policy of “open borders” with regard to an area dominated by the Hamas terrorist group whose goal is the destruction of Israel.
There is not an obligation in international law that requires Israel to open its borders for Hamas terrorists, so that they can commit another massacre. Hamas has already stated that it wants to repeat the October 7th massacre in the future.
Hamas’ has tortured and murdered children in front of their parents and shot parents in front of their children.
Which state would open its borders for those terrorists? Not a single state in the world would act differently.
The actual question is here: Why is Egypt not letting Gazans enter its territory? It is unique for a country to so rigorously close its borders to people from a war zone. Just think of the acceptance of Ukrainians into Europe, but even crisis-stricken Lebanon has opened its borders to the Syrians.
Egypt’s behavior follows a pattern of all Arab states: They deny Palestinians citizenship, do not grant them health care or work permits and have kept them in so-called “refugee camps” for generations. The reason for this is that the Arab states have a powerful bargaining chip against Israel in the form of the Palestinian refugees [12].
5. It is simply untruth that there is currently no foreign media in Gaza. The author is also not providing a source for her statement.
Contrary to the author’s statement, Al-Jazeera (Qatari state television), one of the world’s largest television stations, reports directly and continuously from Gaza. Al-Mayadeen (Lebanon, Hezbollah-affiliated) also reports from Gaza. AFP (France) was also able to continue publishing pictures from Gaza, to name yet another example.
Furthermore, the Israeli Defense Forces itself has brought dozens of international journalists into Gaza, after it explored the large terror tunnel infrastructure under the Al-Shifa hospital.
About Electricity: At least Hamas has continued to have electricity to publish its propaganda videos in recent weeks [13].
Also, contrary to the author’s statement, there was indeed a large amount of fuel in Gaza – Hamas had merely stolen it from the population of Gaza and misused it for its terror [14].
That is tragic, but not Israel’s fault.
Hamas is a fanatical organization that has even converted water pipes into rockets [15] and oppresses its own people.
In general, there was just a very short disruption of humanitarian aid to Gaza:
Already on October 21, just two weeks after the slaughter of Israeli citizens, trucks with aid arrived in Gaza [16].
6. The author argues that Israel receives preferential treatment from the international community.
The statistics contradict this view unequivocally.
It is indeed true, that the international community treats Israel and its citizens differently from the terrorist government of Hamas and the Palestinian citizens.
Israel and its citizens are treated far worse by the international community.
Let’s look at the facts: Israel, the only democracy in the Middle East, was condemned by the UN General Assembly 15 times last year – more than all other states combined (13 condemnations).
In 2020, the General Assembly condemned the only Jewish state 17 times, more than three times as often as all other countries combined (6 times).
As of 2015, the United Nations Human Rights Council Condemned Israel (62) more often than all other states combined (61). This is not a surprise, if we look at envoys like Hend Al-Muftah (from the Hamas-sponsor Qatar). Al-Muftah has called Jews “enemies” and LGBTQI*-people “disgusting”.
The view that Israel is favored by the international community is rendered preposterous by these figures.
Israeli women were raped and and their breasts were cut off. Nevertheless, UN Women did not condemn these atrocities once.
And in legally binding international law it does not look better for the Jewish state:
Security Resolution 1701 demands that the Lebanese and Iranian-financed terrorist group Hezbollah must not have any weapons or fighters in southern Lebanon.
The reality today is as follows:
Tens of thousands of Hezbollah fighters are on Israel’s border and 150,000 rockets are aimed at Israeli civilians.
As a result, almost 30 villages in northern Israel had to be evacuated. Almost 100,000 Israelis are now refugees in their own country.
And all because the binding Security Resolution 1701 is being ignored.
7. Although the humanitarian situation in Gaza is currently difficult, there are more dramatic situations in the Middle East – just think of Syria, Yemen or Libya.
The health stats in Gaza are far better than in many other countries in the Middle East and even the West: In Gaza, the maternal mortality rate is lower than in the US, the infant mortality far lower than in Turkey or Egypt, and the life expectancy is comparable to the EU members Lithuania, Bulgaria and Romania.
The international organizations’ obsession with Israel gives the impression that civilians in crisis regions are only important when Israel is involved in the conflict.
If no Jewish states are involved in the conflict, interest drops dramatically.
Why is no one interested in the fact that thousands of Palestinians were murdered under the Assad regime – in some cases with chemical weapons?
And where is the international outcry after two Palestinians were lynched by hamas terrorists in Tulkarm (Palestinian territories) and their bodies were attached to electricity poles?
8. The author speaks of a “militant arm” of Hamas.
In this regard, it should be emphasized that Hamas as a whole – with all of its “arms” – is banned in the EU and classified as a terrorist organization. Hamas’ parent organization, the Muslim Brotherhood, is also banned in Egypt and classified as a terrorist organization.
Hamas as a whole is a fanatical and anti-Semitic terrorist organization whose brutality exceeds that of IS.
Hamas calls in its own charter for the murder of all Jews in the entire world.
Hamas/ISIS has already stated that it wants to repeat the October 7th massacre in the future – and it wants to repeat it several times.
Conclusion:
All in all, there are not many reasons for being optimistic. 75% percent of the Palestinians have supported Hamas’ terror attacks, according to recent polls. Also, just 5% of Palestinians support a two-state solution and three-quarters want Israel wiped off the map [17]. And Gaza residents threw stones at the hostages in ICRC vehicles, all of whom were small children and women, repeatedly attempting to kill them [18].
The one-sided accusation of Israel, as we have seen time and again in recent weeks, plays into the hands of the Hamas terrorists – but it harms the people of Gaza, who are being oppressed by Hamas.
But I am refusing to lose hope. One day, there will be peace in Middle East, and perhaps it will even be possible for Jews to live in Arab countries and study at universities in Cairo or Damascus without fear, just as Muslims already make up a large proportion of students in Israel today.
Sources:
[1] https://www.ynetnews.com/article/ryjyna7qa
[2] https://www.n-tv.de/mediathek/videos/politik/Hamas-soll-Flucht-aus-Gaza-Norden-blockieren-article24461557.html and https://www.watson.ch/international/pal%C3%A4stina/331876816-wie-die-hamas-die-evakuierung-der-einwohner-gazas-blockiert
[3] https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf and https://www.tagesspiegel.de/internationales/ideologie-vor-menschenleben-unschuldige-als-menschliche-schutzschilde-10624654.html
[4] https://www.timesofisrael.com/thousands-of-gazans-waving-white-flags-head-south-along-idf-evacuation-route/
[5] https://www.youtube.com/watch?v=lMFOgdbOfg0 and https://www.timesofisrael.com/thousands-of-gazans-waving-white-flags-head-south-along-idf-evacuation-route/
[7] https://oxfordre.com/criminology/display/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-684#acrefore-9780190264079-e-684-div1-2 and https://www.terrorism-info.org.il/en/hamas-summer-camps-in-the-gaza-strip/ and https://www.dailymail.co.uk/news/article-12634107/Hamas-resorts-training-children-defend-Gaza-Israeli-troops-mass-border.html
[8] https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf and https://www.tagesspiegel.de/internationales/ideologie-vor-menschenleben-unschuldige-als-menschliche-schutzschilde-10624654.html
[9] https://www.telegraph.co.uk/world-news/2023/11/11/israel-kills-hamas-commander-ahmed-siam-gaza/
[10] https://edition.cnn.com/2023/10/18/politics/us-intel-gaza-hospital-blast/index.html and https://www.aljazeera.com/news/2023/10/21/french-intel-says-palestinian-rocket-likely-cause-of-gaza-hospital-blast
[11] https://www.jpost.com/breaking-news/article-769273
[12] https://www.zeit.de/politik/ausland/2018-01/un-hilfswerk-unrwa-donald-trump-usa-zahlungen-palaestinenser-5vor8/seite-2
[13] https://www.youtube.com/watch?v=xBDcGh8tQIU
[14] https://www.timesofisrael.com/arab-western-officials-agree-hamas-keeping-gaza-food-fuel-for-itself-ny-times/
[15] https://www.youtube.com/watch?v=04NB27x138Y
[16] https://edition.cnn.com/europe/live-news/israel-hamas-war-gaza-news-10-23-23/h_38678b715d6ed9c116dd0b92c9f900b8
[17] https://nationalpost.com/opinion/new-poll-shows-palestinians-are-the-impediment-to-peace-not-israels-war
[18] https://www.t-online.de/nachrichten/ausland/internationale-politik/id_100289726/israel-hamas-geiseln-berichten-ueber-haftbedingungen-in-gaza.html