THIS IS a basic introduction to what international law has to say about Israel’s attack on Gaza and the events surrounding it. The press often references this framework without proper explanation. This primer seeks to make the complex rules of international law more publicly accessible.
International law can be frustrating; more often than not, it is violated with impunity. Indeed, it can be blind to power structures and imbalances. However, socialists can use a basic understanding of international rules to challenge intentional distortions of the law weaponized by the powerful.
Law is not neutral. Its foundations, principles and rules are influenced by class, race and gender, and more generally by prevalent political power dynamics and existing social structures. International law is not different, and its development has been shaped by colonialism and imperialism. International law can be both an instrument for positive change (think about human rights protections) and a tool of dominance (when powerful States instrumentalize it to their own advantage).
At the same time, international law also offers a framework to hold States and individuals accountable for unlawful acts. It recognizes the right to self-determination and resistance of the Palestinian people, and requires Israel to end its illegal occupation. It dictates rules of conduct in warfare and criminalizes certain violations as war crimes. It allows establishment of tribunals to prosecute international crimes. The point is understanding what international law can and cannot do, its potentials and limits, as well as its blind spots. Palestinian liberation can only come from a political struggle, and international law must be used – as far as possible – in support of it.
The law on the use of force (a.k.a. ius ad bellum) regulates military actions between States, including aggression and self-defense. These rules are mainly included in the Charter of the United Nations and govern when States can use military force lawfully.
International humanitarian law (a.k.a. the laws of war) regulates the conduct of warfare and the protection of civilians in armed conflict. These rules are mainly set in the 1949 Geneva Conventions, their 1977 Additional Protocols, and in customary international law. International humanitarian law regulates how States and armed groups can lawfully use military force in armed conflict.
International criminal law defines what violations constitute international crimes, for which individuals can be held liable. The most serious international crimes are genocide, crimes against humanity and war crimes. These can be prosecuted by national courts or by international tribunals, such as the International Criminal Court sitting in the Hague.
Yes. International law recognizes that people under occupation can use all available means to re-establish their right to self-determination. This includes military force. Armed resistance by Palestinians, therefore, is legitimate as long as Israel occupies the Palestinian territory.
Armed resistance, however, must comply with the rules of international humanitarian law. Fighting for a “just cause,” in fact, does not exempt resistance movements from complying with the rules on the conduct of warfare and the protection of civilians.
No. A State can use military force in self-defense only when it has been the victim of an armed attack, and it must do so following the principles of necessity (is military force necessary to repel the armed attack?) and proportionality (is the defensive force proportional to the objective of terminating the armed attack?).
Israel cannot claim a right to self-defense because it unlawfully occupies the Palestinian territory. As affirmed by the International Court of Justice in 2004, Israel cannot invoke self-defense against threats originating from the territory it occupies. As long as Israel maintains its occupation over the Palestinian territory, it has no right to use military force in self-defense against Palestinian armed groups. Had Israel not occupied the Palestinian Territories on October 7th, 2023, it could have invoked self-defense against Hamas’s attack (still having to comply with the necessity and proportionality principles). According to the law on the use of force, Israel is obligated to fully withdraw from the Palestinian territory. The occupation constitutes an act of aggression.
Yes. The “total siege” of Gaza, in addition to the 16-year-long blockade and the impediment of the delivery of humanitarian aid to the civilian population, amounted to the war crime of starvation. Other war crimes being committed include the extensive destruction of property, attacks against civilians and civilian buildings such as hospitals, schools and religious buildings, and forced displacement of civilians.
Israel’s actions may also amount to crimes against humanity, meaning unlawful acts committed as part of a widespread or systematic attack against the civilian population. These crimes include murder (because of the widespread attacks on civilians), extermination (through the siege and blockade of Gaza), and persecution (through ethnic cleansing).
The Genocide Convention and the Rome Statute of the International Criminal Court define genocide as unlawful acts against the members of a “national, ethnical, racial or religious group” committed “with intent to destroy, in whole or in part,” the group “as such.” Based on this definition, UN experts and scholars have warned that Israeli officials’ dehumanizing rhetoric against Palestinians, coupled with the scale and intensity of the military violence used by Israel in attacking Gaza, may amount to genocide. Raz Segal, a scholar on Holocaust and genocide studies, defined what is happening in Gaza as a “textbook case of genocide.”
Only a court can establish whether specific individuals are guilty of having incited or committed genocide. However, every State in the world, including the US, has an obligation to do whatever in its power to prevent genocide as soon as credible reports arise. Given the existing warnings, the US has a duty to use all available means at its disposal to deter Israel from committing genocide. This includes stopping relevant forms of cooperation, including the transfer of financial aid and arms. Even more so, as the US could end up being complicit in genocide.
Yes. Direct attacks on civilians and the taking of hostages are war crimes. This is provided for also in the Rome Statute of the International Criminal Court. Hamas and other armed groups’ unlawful acts may also amount to crimes against humanity if they were committed as part of a widespread or systematic attack against the civilian population.
Had Hamas and other armed groups targeted or captured Israeli soldiers only, these would have been lawful acts of warfare.
Yes. Palestine ratified the Rome Statute in 2015. This gives the ICC jurisdiction over genocide, crimes against humanity and war crimes committed anywhere in the West Bank, including East Jerusalem, and Gaza, or by Palestinian nationals in Israel.
Both Israel and the US refuse to recognize the ICC jurisdiction. However, because Palestine is a party to the Rome Statute, the ICC can prosecute international crimes currently committed by Israel in Gaza, and those perpetrated by Hamas and other armed groups in southern Israel.