Working paper, by Mahmoud Refaat: The European Institute for International Law and International Relations.
For one week now, rocket exchanges between Israel and Hamas are intensifying in what appears to be an uncontrollable escalation of violence. After the end of Ramadan, several Palestinian families were threatened with expulsion from East Jerusalem, the occupied part of the city, leading to demonstrations in this area. These rallies were severely repressed by the Israeli police causing more than a hundred Palestinian casualties. Hamas responded on May the 10th by firing dozens of rockets to southern and western Israel from the Gaza Strip. From this moment, the situation degenerated into daily rocket exchanges between the two sides and air strikes from Israel too. This permanent state of war, targeting civilian zones, is plunging the West Bank in fire and blood.
The tensions between Israel and Palestine go back to the end of the Second World War, to the very creation of the State of Israel on Palestinian land at the initiative of the USA. Perceived as a Jewish occupation of the Arab ground, Israel has aroused hostile looks from its neighbours since its arbitrary creation. These tensions led to the Yom Kippur War in 1973, in which Israel repelled a coalition of neighbouring Arab countries, contributing to a gain in confidence on the part of the Hebrew State. The Israelis then began to establish new settlements on Palestinian land, expanding their territory. This occupation gave rise to an uprising of the Palestinian people, encouraged by local militias, which was described as the first “war of stones”. There followed a process of international negotiations to reach peace, multiplying conferences and summits between 1991 and 2000, which ended in a bitter failure and a new Intifada, even more violent than the previous one with numerous Palestinian suicide bombings and targeted assassinations by the Israelis forces. Each time, Israel occupies more Palestinian land, establishing settlements and organizing movements of Palestinian populations (more on this later). Since 2007, Hamas, a terrorist nationalist Islamic group has taken power in the Gaza Strip by force after getting a legislative majority in 2006. The Fatah’s official forces, under the designation of “State of Palestine” since 2013, represent the national recognized authorities in the country, controlling the A and B areas. Despite the peace negotiations between the two parties, Hamas and the Israeli government are staring each other down, sometimes leading to clashes at the border. Each side seems to be sticking to its guns, until the altercations described above break out, once again reigniting this conflict that has been dragging on for over 50 years.
This article will seek to give an overview of the current situation of the confrontations. In addition, it will give an assessment of the legal international stakes in play and political position that the Israel-Palestine conflict is facing. Finally, this article will explore some solutions that the International Community should implement in order to de-escalate the conflict and advance towards much needed peace in this region.
The Conflict in International Law
The recent conflict emerging since the beginning of the month raises many diplomatic reactions from numerous International actors. The European Union, through its head of diplomacy Josep Borrell, demands the “immediate cessation” in Israeli and Palestinian territories. Continuing, it condemns the “indiscriminate launching of rockets” by both Hamas and Israel, but also points to Israeli abuses, while legitimizing its defensive position, and urges it to use “maximum restraint in the use of force”. Fatou Bensouda, Attorney General of the International Criminal Court, refers to the “possible commission of crimes under the Rome Statute”. These two declarations enumerate perfectly the principle stakes of the current Israeli-Palestinian conflict in the thorny area of international law. Given the risk of spilling over into a more global conflict, it seems interesting to look at the application of international rights on the subject. In this part, we will thus take a closer look to the implication in international law violation of both sides’ actors of the border. In the interest of total impartiality, we will approach the case of the two belligerents in a neutral manner with equal treatment, giving reason to neither side but rather pointing out the lapses on each side.
To begin with, the Rome Statute entered into force in 2002 is the text that created the International Criminal Court (ICC) based in The Hague, and defines the different types of international crimes over which the Court has jurisdictional power: genocides, war crimes, crimes against humanity, and aggressions crimes. Here, it is important to note that the Palestinian state (recognized as such) ratified this treaty in 2015, while Israel is only a signatory. This means that Palestine is obliged to cooperate with the Court if it so requests, which is not the case for Israel. But even if Israel is not subject to the court, this latter’s jurisdiction extends to the West Bank, the Gaza Strip and East Jerusalem, where the conflict actually takes place. An ICC’s investigation has already started in March, before the conflict explodes after accusations from both sides of violations of international law (The New York Times, 2021). What are the responsibilities of the two belligerents under these international regulations?
In recent weeks, Hamas, the Islamic militant group in power in Gaza Strip, has launched numerous rockets into central and southern Israel in response to police events in East Jerusalem (Deutsche Welle, 2021). Although this is not the first time Hamas has done this, it could be a violation of Article 8bis paragraph b) of the Rome Statute condemning “the bombing […] or use of any weapon by one State against the territory of another State”. The difficulty is that Hamas is not recognized as an official government, and controls the Gaza Strip by force, in opposition to the Fatah’s “State of Palestine ” recognized by the United Nations. In this way, we can’t consider the bombings as a State’s aggression and this does not engage the responsibility of the Palestinian State in the framework of the ICC. Hamas is recognized as a terrorist organization by Canada, USA, the EU, Japan and Israel, of course. Nevertheless, the actions of this extremist militant group fall under the Geneva Convention of 1949 prohibiting the endangerment of civilians, as rocket fire is not aimed at military buildings. The Fourth Geneva Convention does take effect in the occupied Palestinian territories, as reaffirmed in 2001 by the High Contracting Parties (Antonius, 2003). Hamas’ actions can therefore be likened to declarations of war that endanger the lives of innocent civilians and threaten peace in the region. This is a serious violation of human rights that could lead to a larger-scale conflict, which implies the need for rapid action on this conflict.
One aspect of the danger posed by Hamas that is too often overlooked is the support it receives from the foreign power Iran. On May 11, Iran declared that it was ready to support Hamas with $30 million per month if Hamas would provide it with information on Israeli ballistic capabilities and their location (Iran International, 2021). This is not the first time that the Iran Supreme Leader finances a terrorist group. He previously did it with the Lebanese Hezbollah, and was already financing Hamas around $70 million annually. By financing Hamas Iran not only encourages the crimes perpetrated by the terrorist group, but also obtains sensitive classified information about Israel. This endangers Israel by revealing its weak points (such as the location of its anti-missile shield, the famous Iron Dome) and therefore endangers the security and integrity of Israeli territory in tension with its Arab neighbours. One must add here that Iran is encouraging a common Arab front against Israel, not only to resist it but to annihilate it, which constitutes a clear threat of genocide. Indeed, in 2020, the Ayatollah Khamenei qualified the “Zionist regime” as a “cancerous tumor” that has to be “destroyed” (Reuters, 2020). Not satisfied with financial support, Iran is also providing arms to the Hamas jihadists, which is a flagrant violation of the Arms Trade Treaty, in a time where Iran was still under arms embargo until October 2020. There were already suspicions about the sale of weapons to Hamas, but in May 2020, Iran for the first time officially admitted to these exchanges, which were confirmed by the leader of the Palestinian Islamic Jihad, Zeyad al-Nakhala (Reuters, ibid). Iran is therefore fully at fault for financing a terrorist enterprise and trading illegal weapons to this same group, thus violating the international laws of the United Nations while contributing to disturbing peace in the region. Iran is not part of the Arms Trade Treaty, but by giving these weapons to jihadists, it attempts to improve the fundamental human rights of the Israeli population.
What we have said above does not excuse Israel’s reactions and disproportionality. Indeed, the country has been openly violating international law since 2008 and the invasion of a large part of Gaza (Bisharat et al., 2009), justified by the will to stop the rocket attacks from Hamas. But such motivation does not warrant the annexation of Palestine, which is a territory violation and goes deep further the proportional answer principle in international relations. A several number of investigations are ongoing concerning apartheid accusations against Palestinian from Israeli government’s forces on occupied territories (BDS, 2020). The current conflict is rooted in a problem of Palestinian populations’ expulsion, with for example the Nahalat Shimon International association requiring the expulsion of dozens of families in the Sheikh Jarrah, summoning the discriminatory Law of 1950 (Amnesty International, 2021). The displacement of population as what has been organized in the occupied Palestinian territories is prohibited by the Fourth Geneva Convention (CGIV) in article 49, and this “whatever the reason”. We can also read that the occupying power may not carry out “the deportation or transfer of parts of its own civilian population into the territory it occupies”. These deportations are also considered as war crimes in article 147 of the CGIV. Israel’s violations of international law towards the Palestinian population are therefore not a new phenomenon. But it takes a bigger dimension with the current escalation of violence. Furthermore during the demonstrations against these expulsions, Israel used force, repeatedly using lethal munitions since 2018 (Human Right Watch, 2018) that constitute a crime against humanity, because these demonstrations didn’t represent a threat to life (Whitson, 2018).
The main justification for Israeli actions in recent weeks is based on the right of a State to protect itself: the Self-Defence Principle. It refers to the inherent right for a State to use force in response to an armed attack (ICRC). This is one of the exceptions to the prohibition against use of force under article 2(4) of the UN Charter and customary international law and is applicable to any subject of moral right. But this Israeli argument is very questionable in terms of temporality. Indeed, from the Israeli government’s point of view, the conflict began with Hamas rocket fire. But this assault was carried out in response to the police violence suffered by Palestinian demonstrators in Jerusalem, which reverses the role of the initiator from a point of view not of conflict between two territorial entities, but from a point of view of international human rights. In addition, the United Nations humanitarian office, Israeli settlers have committed at least 127 attacks against Palestinians since the beginning of 2021. Self-defence does not appear to be valid in this case, as the chain of events is too far back to justify current actions supposedly in response.
To better understand the invalidity of the self-defence thesis, we should focus on the International Humanitarian Law (IHL), also referred to as the Laws of Armed Conflicts, which is increasingly recognized as the application of human rights in conflict areas and times (Doswald-Beck & Vité, 2012). These laws are based on 5 fundamental principles guiding their development: the principle of humanity, distinction, precaution, proportionality and the prohibition of unnecessary harm and suffering. The principle of distinction, also known as the discrimination principle, impose to differentiate between civilians and combatants, and the principle of precaution forbid to place military objectives close from civilian life areas (article 57 IHL). Israel violated both of these principles by targeting residential areas, causing the death of at least 53 Palestinian including 14 children and wounded 300 persons in Gaza only by Wednesday (New York Times, 2021). Israel’s “defensive” fire causes the death of many innocent civilians and children, the ultimate violation of human rights. This puts into perspective our initial quote from Josep Borrell calling the indiscriminate Israeli “indiscriminate” strikes “unacceptable”. The preservation of civilian life is the absolute priority of the law of armed conflict, and strikes – if legal – must target military infrastructure and only harm combatants. Self-defence does not legitimize the death of civilians, in any circumstances. Even if the neutralization of the opponent military advantage can’t be countered without the civilian collateral victims, the programmed operations will have to avoid losses “which would be excessive in relation to the concrete and direct military advantage expected” (article 51, paragraph 5b IHL): this is how the principle of proportionality should be interpreted. Intercepting an Israeli argument that would be “rocket against rocket” assertion, we will note the imbalance of defence between the two forces at play. Indeed, since 2011 it has been equipped with the famous “Iron Dome” which, although expensive, has proven its effectiveness, blocking around 90% of the 1600 recent rocket strikes coming from Hamas (Business Insiders, 2021). There is no equivalence in the Gaza Strip, which means that the Palestinian population, not involved in the conflict, is much less protected than the Israeli population. Israeli often target civilian habitations, like in May the 12th when air strikes a tower building supposed to shelter Hamas generals (Reuters, 2021). That is a perfect example of the application of the proportionality principle: this attack had no basis in international law, resulting in the endangerment of far too many civilians for too little benefit. These arguments therefore not only illegitimate the Israeli self-defence argument, but also emphasize that these actions constitute war crimes under the principles of International Humanitarian Law, causing the death of many civilians through arrogance.
As Hamas does, Israel has its unadvised foreign support too, embodied by the US. Through FY 2020, the US has provided $146 million in military, economic and missile defense funding (Carnegie, 2021), even though it has the twenty-ninth-largest per capita GDP in the world according to the World Bank (ibid). The paradox is that the United States is increasing its funding to Israel, while Israel has ample funds to provide for its own military needs. Curiously, these policies of aid to Israel are at odds with US domestic law. Indeed, the Foreign Assistance Act (P.L. 87-195) forbids the assistance to countries committing “gross violations of internationally recognized human rights” that is actually the case with Israel. In addition, the Arms Export Control Act (P.L. 90-629) that allows the supply of weapons only “for legitimate defence”. Here, the problem is that the version the version retained is that of the Israeli authorities, who support the theory of self-defence. Finally, the US is putting conditions on human rights improvement for the other recipients of the Foreign Military Finance (Egypt, Jordan, Pakistan, Iraq etc.). For example, the FY2021 is conditioned in Egypt by “taking sustained and effective steps” to reinforce human rights (ibid). But with Israel human rights hardly appear at all, as if they were a secondary clause of lesser importance. Parliamentary manoeuvres are underway to try to reverse these trends, but American support for Israel remains strong. So strong that, in this situation, the US support can be interpreted as war supply for Israel against Hamas, encouraging the conflict instead of contributing to peace, the main goal of these investments (defence features).
Political Situation:
As it has been seen over the years, Israel has been able to keep increasing their territorial control over the Occupied Palestinian Territory (OPT), which has enabled the Israeli government to carry out policies that ensure their dominance over this region, as for instance the Knesset (the unicameral national legislature of Israel) was able to pass in 2018 a law that established Israel as the “nation-state of the Jewish people,”, where the right to self-determination “is unique to the Jewish people,”. Not only that but it also approved the idea of “Jewish settlement” as one of Israel’s national values. This has had an incredibly negative results for the Palestinian population, as Israel has approved policy with the goal of protecting these ideas. Israel has adopted different procedures with this objective in mind, nevertheless one of the main ones includes limiting the Palestinian population. They have also seemed to reduce their political power, as they have awarded the right to vote only to the Palestinian population who live within the borders of Israel that existed between 1948 and June 1967, while also restricting the ability of the Palestinians to move freely between Israel and the OPT (Human Rights Watch, 2021). What is more, Israel has also pursued hindering the economic ability of Palestine, for instance by hampering the free movement of people and goods within the Occupied Palestinian Territory. As mentioned before, these policies have enabled the increased control of Israel over the OPT, which has resulted among other things in the “Judaization” of this territory as Palestinians have been forced to settle in particularly dense and under-served areas, while Israel has been able to increase its control over the land and the resources. These policies and actions carried out by the Israeli government have incredibly worsened the situation in which many Palestinians have to live in, which has resulted in an increasing number of experts using the term apartheid to refer to the situation in this area (HRW, 2021).
Nevertheless, it is very clear that the Israeli government has been able to carry out these actions thanks to the passivity from the International Community. The United States as the main power has not only been unable to steer the situation into a positive outcome both for Israel and Palestine, but also has not been capable of stopping it from unravelling and leading to conflict and a significant number of deaths. This has been particularly the case because the US has not been able to implement an adequate policy for this conflict. The US has made it repeatedly clear in the past their backing of a two-state solution and the establishment of a democratic Palestine but have been unable or unwilling to stop Israel’s illegal expansion, which has notably deteriorated the possibility of such a solution to happen in the future. Not only that but, even recently during the Trump administration, the US seriously considered the idea of allowing the Israeli annexation of the West Bank as they reassured it in practice only stopping short of backing its formal annexation (Hassan and Munayyer, 2021; Brown, 2021). Moreover, the US has continually hindered the Palestinians’ diplomatic and legal efforts, for instance under the Trump administration it was made particularly clear the US saw Israel as an important partner and did not give much support for Palestine. During this period, the Palestinian leadership was categorised by the US government as insignificant and they evaded any statement about the Palestinian national identity, while they welcomed Israeli illegal settlements (Hassan and Munayyer, 2021; Brown, 2021).
Even though the US is the most important actor in the International Community, it is not the only one, as also the European Union has been unable to implement a successful international policy that helped the situation in this conflict to stop worsening. As other members of the International Community, the EU has remained particularly passive during this conflict, as they have always kept themselves behind the US, not coming up with major decisions on their own. This has led to several lost chances of moving forward towards the objective of a two-state solution. Even when the Trump administration revealed its “Peace to Prosperity” plan, where it authorised the annexation of 30% of the West Bank, the EU was incapable of showing a united position against this plan that would have seriously hindered any opportunity of obtaining a two-state solution. This is a recurrent problem with the EU, as it is formed by 27 members with conflicting agendas, very rarely they are able to show a united front in a decisive topic. Therefore, instead of acting as the EU, the Member States had to show their position on their own (Muasher, 2021; Lovatt, 2020).
These series of events have made the situation increasingly difficult to be resolved, there is a very deep distrust between the parties involved in the conflict. This is one of the main issues that any progress will encounter, as it makes the negotiations even more troublesome in an already challenging conflict. Therefore, this has made the International Community lean towards maintaining the status quo as it is the option that requires the least energy and political capital in order to be implemented. However, if players like the US or the EU continue to rely on only maintaining the status quo, the results in the future will be disastrous, particularly due to the fact that if the Israeli settlements continue to expand or if it even decides to complete an annexation of West Bank territory, this will make the two-state solution practically impossible (Egel et al, 2021; Youssef, 2020). Not only that but allowing the situation to continue like this is having a notably negative impact in the Palestinian population, and also on the Israeli population. Palestinians are being imposed to live under strenuous conditions filled with daily humiliations. Furthermore, conflicts have regularly risen in this region, which have caused a significant number of lives, therefore it is imperative that the International Community stops their passivity and starts looking for alternatives that will at least allow the situation on the ground to improve with the goal of achieving a solution in the future that both Israel and Palestine find acceptable (Goldenberg, Koplow and Cofman Wittes, 2020).
Possible Solutions:
What has been happening in the recent days, where tensions between Israel and Palestine have risen dramatically and violence have erupted, is a very clear indication that a solution must be found, one that allows this violence to stop. Recently, the two-state solution has been increasingly regarded as a very distant objective for several reasons. Firstly, the domestic situation between Israel and Palestine has been made ever more challenging as the actions taken by different US governments have made it very difficult for the Palestinian population to trust the, Moreover, these actions have also led the Palestinian leadership in a notably weakened position. Nevertheless, international politics have also made the situation more burdensome, particularly due to the fact that since Israel has been able to improve its relationship with its neighbours, for instance through the Abraham Accords, this has reduced the pressure on Israel to find a solution in the Palestinian conflict in order to be safer (Brown, 2021).
Therefore, many experts have been claiming for a change in strategy, especially for the US. It has been argued that the US should start implementing a new strategy that focuses on rights and human security in the region. Implementing a plan like this one could have incredible benefits, both for the US, as well as for Israel and Palestine, as for instance this new program could invigorate the US´s position in this conflict, as it would be seen as a more trustworthy actor, which could even result in a boost on peace negotiations. As mentioned before, the Palestinian population has had an increasingly distrusting sentiment towards the US and their actions, therefore it would be crucial if the US was able to change this view. What is more, this new strategy could also seriously improve the situation on the ground, especially for the Palestinian population. If the US was able to centre their view of the resolution of this conflict in ensuring rights and human security this would seriously change the dynamic between Israel and the US. Thus, Israel would be forced to change their policy towards increasing their illegal settlements in the OPT, as by doing this they would be seriously breaching international law and so their close position with the US would be seriously jeopardised (Hassan and Munayyer, 2021). In addition, it has been widely argued that there should be an increased aim at not only improving the living situation of the Palestinian population but also providing them with the tools necessary for obtaining lasting and beneficial change in the region. This can be done in several ways, for instance by ensuring that Gaza enjoys a higher amount of economic and political rights. This could lead to a more empowered civil society, which would have significant benefits for Palestine (Brown, 2021). It is very clear to many that it is imperative for the US to focus on carrying out concrete steps towards the improvement of freedom, prosperity and security in the region, as this will be crucial for obtaining a lasting solution to this conflict. Nevertheless, even though obtaining the two-state solution may not be a priority at the moment, it should not be discarded as the best long-term solution that there is at the moment, especially due the fact that the alternatives that have been proposed at the moment do not offer a better of more credible solution, as well in spite of the fact that the two-state solution is not as well supported by both the Israeli and the Palestinian population as before it still considered one of the very few stances which both agree on (Goldenberg, Koplow and Cofman Wittes, 2020).
The EU also needs to redress their position on this conflict, particularly because as it has been mentioned before, the EU has been incapable of moving from as a unique front capable of arguing for any real change in this conflict. Nevertheless, the EU has tools, which could be very useful for improving the situation in the region. The EU should use their economic power in order to force change in this conflict. There are already examples in the past, show that the EU is able to significantly influence the decision-making in Israel when benefits like trade or development funding are threatened to be shut down. The EU and Israel have managed to develop a very close relationship recently, as they have been able to sign an Association Agreement, where preferential tariffs in trade have been implemented, as well as Israel has been granted access to several community programmes like Horizon 2020. Therefore, it is imperative that the EU shows a stronger position in this conflict and clearly states that neither the continuing nor the expansion of the existent close relationship with Israel will be possible if this country continues to severely undermine the rights of the Palestinian population. The EU needs to seriously assess the severity of what is happening and act as a strong union like during the Russia annexation of Crimea in 2014 (Lovatt, 2020).
The Israel-Palestine conflict is one that has been happening for several decades now. During this time, Israel has been able to use its close relationship with the United States, as well as the passivity of other international players like the European Union for significantly increasing their control over the region. They have tried to undermine as much as possible the political and democratic power of the Palestinian population, for instance by severely restricting the movement of people between Israel and the OPT. This inequality was even increased during the Trump administration as they revealed the “Peace to Prosperity” plan, where the US authorised the annexation of 30% of the West Bank by Israel (Muasher, 2021; HRW, 2021). Nevertheless, recent events have reignited the need for a solution. Even though the two-state solution may still be the goal for future and lasting peace, it is increasingly argued the need to change the focus of the problem and strive to ensure that human rights are met in the region. Therefore, the International Community but especially the US have now a unique opportunity for trying to implement a new approach which will be crucial for ensuring that the dreadful situation that the population of the region is facing is resolved (Hassan and Munayyer, 2021).
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