International Law and Israel and Palestine

If I can’t travel, I may as well write. And contribute in a small way to our continuing learning about Palestine and Israel.

My perspective is legal, as practitioner and scholar of public international law, especially in my work to resolve the situation of Africa’s last colony; Western Sahara.

Two things can be said from the outset, and then I’ll offer a modest homework assignment. Then turn to some of the fundamentals.

1 –International law is both well-developed and understood when it comes to the basic facts
First, the law is both well-developed and understood when it comes to the basic facts of Palestine’s occupation, the denial of Palestinian self-determination, and the present armed conflict. There’s no ambiguity about the rules, especially when it comes to the protection of civilians and non-combatants.

2 – International law has been vastly under-applied
Second – as we know – the law has been vastly under-applied, in both its self-determination dimension, to the territorial integrity of the people of Palestine, and also to humanitarian protection (which includes the maintenance of basic human rights to a people under occupation). Successive Israeli governments have denied the application of a universally accepted Fourth Geneva Convention, the bedrock of protecting civilians during armed conflict. I’ll return to some specifics below.)
Applying the law at the level of state responsibility and also in a criminal context against individual perpetrators is difficult: There are no countries (states) or other organizations, for example, the International Criminal Court, which can apply a sort of strong (or immediate) jurisdiction. So the system of international law is weak when it comes to the long-term situation of Palestine and the present conflict.

Homework Assignment
Here’s the homework assignment: When we read media reports of the conflict, observe how the parties and their allies refer to international law. For example, there’s a piece in the Globe and Mail [last] weekend which observes that Hamas’s actions amounted to war crimes. (They did, generally, by the way.) In asserting a contravening (violation) of international law on the part of Gaza’s government, are commentators addressing Israel’s immediate and historic violations?

(I think it’s a specific war crime to declare a siege of Gaza. I’m assessing the Israeli government’s announcement of this objective made Sunday. Declaring in the conduct of war that you will give “no quarter” to your enemy is codified – legislated – as a war crime in the 1998 Statute of Rome treaty for the International Criminal Court. A siege would seem to be by analogy the same thing, that no minimization of enemy casualties will be contemplated including captured (here, trapped) persons, combatants and civilians alike.)

Understanding the International Law that Applies
The international law that applies actually isn’t all that complicated. It’s simply the realm of a priesthood which – not unlike (say) an ecclesial clerical cadre – tends to use obscure language and practice its rituals out of view. The law is understood by thinking about its sources – does a rule of conduct we urge on a state or individual come from a treaty? from a judicial decision? from extensive acceptance and use of the rule by states? and, second, what category of a rule are we seeking to understand: fundamental civic human rights? human rights in armed conflict (international humanitarian law)? the right of (non-self-governing peoples to) self-determination? rights to territorial integrity? and so on.

The 1945 UN Charter, specifically Article 2 (Respect for the political independence of states and peoples and the maintenance of territorial integrity)
The bedrock of the international legal order is the (1945) UN Charter. And we don’t have to look any further than Article 2. Article 2 obligates states – and therefore each of us as “subjects” of the law – to two things. First, respect for the political independence of states and peoples, including non-self-governing peoples as (“classically”) colonized communities. Each of us and our governments and therefore the states of which were a part, can’t behave in ways that diminish or impede the political independence of others. Think of Ukraine in this regard, which Russia seeks to eliminate as an organized legal entity in the international community.
Second, Article 2 requires the maintenance of territorial integrity. States can’t violate – and even less with use of armed force – the borders of other states except in clear instances of self-defense (or otherwise – think Libya 2011 – by authorization of the UN Security Council). In this context, Hamas’s armed incursion into Israel as either an act of re-taking territory (!) or, say, for the limited purpose of dismantling Israel’s security fence around Gaza was lawful in that it was done in self-defense. Lots of what was directed to a civilian population inside Israel, of course, was not.

Learn more in a 2004 advisory opinion decision of the International Court of Justice to the UN General Assembly
Whole libraries have been written about the application of international law to the situation of Palestine. But if there’s one-stop shopping I can recommend it’s the 2004 advisory opinion decision of the International Court of Justice to the UN General Assembly concerning the legality of Israel’s security wall. The Court helpfully sketches out the background and applicable law in an accessible way. See paragraphs 66-162 of the decision, which can be found on the ICJ website at: (The early paragraphs of the decision are about procedural matters.)


Jeffrey Smith