The failure of international law in Gaza

Solly Rakgomo | Monday November 20, 2023 06:00

What is the problem of international law that it has always failed to protect the people of Palestine? What is the missing link or the lacuna that Israel is getting away with its acts without any scrutiny? The answer lies in the international law discourse as international law is a law that has been hegemonic in nature and silences the voices from the Third World, an emerging theory in international law called the Third World Approaches to International Law (TWAIL).

Like other critical theories of law, TWAIL is a critical school of thought as explained by Antony Anghie in Rethinking International Law: A TWAIL Perspective. He avers that “we cannot achieve global justice unless we achieve justice for the people in the Third World, and it is TWAIL scholarship that reveals important and systemic inadequacies in the international order that prevents this from occurring”. To understand contemporary International law, one has to be mindful about the colonial and hegemonic origins of International law that is how the current International law framework is systematically biased and allow the exploitation of people of Palestine since its inception. As Jason Beckett attests, “public international law is neocolonial in function.”

Public international law still makes the colonial roles of enforcing discipline and pillaging the developing countries tangible. Public international law upholds the principle of “whatever you possess is considered as under lawful occupation justified in many cases that have been fought to proclaim the right of self-determination.” This principle states that newly formed sovereign states should retain the internal borders that their previous dependent area had before their independence, and this is the unfortunate case of Palestine where the Mandate of Palestine was given to the UK and led to the creation of Israel and it is dominated by this doctrine in international law.

The region that is currently known as Palestine was ruled by the Ottoman Empire and included Egypt, Jordan, and Syria. Following the fall of the Ottoman Empire, this region was taken over by the United Kingdom, who then granted this area to the Jews under the terms of the Balfour Declaration (1917), which gave rise to the state of Israel. Since then, Israel has expanded its territory beyond the borders that were set for it in 1948, but because this is a case of divide and rule, Palestine is currently divided between Gaza and the West Bank, and its borders have been affected by colonial cartography that was justified by this doctrine. The existing body of international law is incapable of resolving these issues. Ayesha Malik explains how Israel is breaking the law, particularly the law of armed conflict, which justifies that it is an occupation and how Israel is violating international humanitarian law by committing war crimes and crimes against humanity, but it is all in vain, unfortunately.

Thus, it is reasonable to doubt the importance of international law and the claim persists that it exclusively benefits the powerful and is a law of the victor’s court in many situations. From the TWAIL perspective, understand the wrongs of the current International law hegemony, otherwise we will be trying to cure the ills from the same medicine tested many times that it will not able to cure the wrongs of international law.

To fight against this brutal oppression because it is only the oppressor who has benefited from this asymmetrical and haphazard warfare, not the people who suffer daily. The State has traditionally been the focus of international law. However, given the Israel-Palestine conflict, historical evidence indicates that the surrounding nations including Jordan, Egypt and Syria suffer as a result of the colonial framework of international law, which Anghie highlights in his book, Imperialism, Sovereignty and the Making of International Law. The paradoxical nature of the Mandate System, which aims to free the mandated peoples from the difficult circumstances of the contemporary world, yet ultimately keeps them in those same situations.

Thus, the odd cycle produces an environment in which international organizations position themselves as the answer to an issue they are a part of. Situations like these frequently arise in contemporary international affairs. In the context of contemporary international relations and law situations like Palestine, are consistently abused in the name of the rule of law and to maintain territorial integrity.

Noura Erakat emphasises that the use of the Geneva Convention’s laws of war does not alleviate the situation for the Palestinian people. Rather, it is a continuation of colonial policies that have up until now justified such wrongdoing and created a harsh international legal system. As quoted here: “These efforts include the 2004 International Court of Justice’s advisory opinion on Israel’s wall, the 2011 to 2012 UN statehood bid, the UN General Assembly resolution augmenting Palestine’s observer state status, the accession to the Rome Statute and the subsequent admission to the International Criminal Court, and most recently, Security Council Resolution 2334. This is to say nothing of the fact that statehood, as a remedy, does not correspond to the reality and scope of Palestinian grievances today, as discussed earlier. Assuming for the sake of argument that being recognised as a state by the United Nations could remedy Palestinian subjugation, the Palestinian leadership’s legal strategies in pursuance of that goal remain strategically insufficient.

These resolutions are only persuasive in terms of international law, they have no legal force behind them. Again, regrettably, the International Court of Justice’s ruling that Israel’s creation of the wall was illegal does not have the power to lessen the suffering endured by the Palestinian people.

According to this traditional interpretation of international law, the Palestinian people will be considered terrorists if they attempt to resist the current system of international law by using force. The current humanitarian crisis in Gaza is evidence that the Palestinian people are treated without any legal protections, and the rules of international law do not benefit the Palestinian people. Israel has transformed the circumstances in Gaza into the kinds of asymmetric conflicts that define what has come to be known as the Global War on Terror by highlighting the role of Hamas and downplaying the Palestine issue. This has eliminated the necessary distinctions between Palestinians and other non-state actors. Israel is substituting a national security framework for comprehending the conflict for a peacemaking one, let alone a settler-colonial one, by separating Gaza from the rest of the Palestinian question. Along with regional division, the internal battle between Fatah and Hamas serves to reinforce this paradigm change and Israel’s colonial dominance.

This essay does not seek to refute discussions of transgressions against international humanitarian law; yet, focusing entirely on such discussions will not help the Palestinian people or any other group fighting for their right to self-determination. International Humanitarian Law (IHL) does not work in a vacuum, it needs strong political support to ensure the enforceability of IHL rules and principles. Therefore, to strengthen the protection available under IHL, the right of self-determination and the voices speaking from the TWAIL perspective should be heard and institutionalised as policy goals to cure the ills of international law. We need a comprehensive approach that interweaves democracy, human rights, the right to self-determination, and international humanitarian law, always mindful of the oppressive nature of international law as practiced by powerful states contrary to the legitimate aspirations and legal rights of the people in marginalised states and communities, like the Palestinians, who are fighting for their liberation from colonial powers.