Reflections on the Efficacy of IHL in the Palestinian Context15 July 2021
As Palestinians continue to suffer the consequences of longstanding, widespread and systemic violations of international law, questions naturally arise as to whether and how advocacy based on international law can actually benefit Palestinians. As part of its ongoing efforts to address such questions, the Diakonia IHL Centre recently hosted an online webinar identifying a transitional moment in the nature, goals and scope of legal discourse about Israel/Palestine in the midst of which the place of international humanitarian law will need to be clarified.
Appeals to international humanitarian law (IHL) have been a constant feature of efforts to alleviate the hardships that Palestinians endure under Israeli occupation. Yet, after more than half a century of occupation, Israel’s oppressive policies and practices continue with unrelenting intensity and with no end in sight.
Is IHL helpful for Palestinians?
In the Palestinian territory occupied by Israel since 1967 (the oPt), Israel’s settlement enterprise and creeping annexation of the territory are only widening in scope through systemic violations of IHL, including prohibited population transfers, the appropriation of Palestinian public lands and resources to benefit Israel and its nationals, and dispossession and destruction of Palestinian property. These are accompanied by a regime of movement and access restrictions which effectively fragments the Palestinian territory, and which has had an especially devastating humanitarian impact in the case of the longstanding closure (sometimes referred to as a siege, or blockade) that Israel has imposed on the Gaza Strip. In addition, a constant flow of well-evidenced reports indicates that far from properly discharging its obligations as an occupying power to ensure law and order and civil life in the oPt, Israel imposes many stringent restrictions on Palestinians entailing unwarranted infringements on their rights and freedoms. Palestinians also endure rampant abuse at the hands of Israeli security forces and settlers and while Israeli offenders are rarely held to account for such abuse, Palestinians are regularly subjected to overzealous law enforcement including excessive use of force, and arbitrary or otherwise unlawful deprivations of liberty in disregard of procedural guarantees.
Varying forms of discrimination between Palestinians and Jewish Israeli nationals are apparent not only in the oPt, including East Jerusalem which Israel has unlawfully annexed, but also within Israel’s pre-1967 borders. An Israeli constitutional enactment, Basic Law: Israel as the Nation-State of the Jewish People (the Nation State Law), establishes that “[t]he State of Israel is the nation state of the Jewish People” and that “[t]he exercise of the right to national self-determination in the State of Israel is unique to the Jewish People”. Additional Israeli legislation, such as the Citizenship and Entry into Israel Law (Temporary Order) of 2003, has been enacted with the acknowledged intention of preserving a Jewish majority in Israel. As a result of these and other measures, Palestinian nationals of Israel are subjected to various forms of institutional discrimination, that manifest, inter alia, in restrictions on building rights and access to land, resources and services; in the practice of home demolitions; and in effective prohibitions on family reunification. Indeed, the policies pursued by Israel in its sovereign territory as in the oPt evince an intention to maintain Jewish domination with deleterious consequences for Palestinians.
Is IHL an adequate legal framework?
These factors may raise doubts about IHL’s efficacy as a vehicle for promoting Palestinians’ rights and interests. For one thing, given the longstanding, widespread and systemic violations of its provisions in the context, IHL might appear rather toothless and appeals to it may consequently seem devoid of practical utility. Moreover, some might question whether this body of law is in fact an appropriate legal framework for addressing the underlying issues at stake. After all, while applicable to Israel’s belligerent occupation of the oPt and to armed conflict more generally, IHL does not apply to Israeli’s practices in its own territory and towards its own nationals and is therefore inapt when it comes to addressing structural inequities in Israel’s treatment of Palestinians across all the territory under its control, between the Jordan River and the Mediterranean Sea.
What’s more, within the oPt, IHL admittedly does not prohibit Israel, as the occupying power, from drawing certain distinctions between the local Palestinian population and its own nationals. IHL in fact obliges the occupying power to maintain a clear distinction between members of the local population, who fall within the IHL definition of “protected persons”, and its own nationals, and to refrain from applying its own domestic law to the former. This has led some commentators to contend that IHL as such does not provide a good legal basis for asserting that Israel’s adverse treatment of Palestinian protected persons constitutes unlawful discrimination, even while it diverges sharply from the treatment extended to Israelis, including Israeli settlers who benefit from the full panoply of rights and protections afforded to citizens (and whose political clout in Israel enables them to secure still more preferential treatment).
In addition, there is a view, which appears to be commonplace among Palestinians, that the distinction between the oPt and other parts of historical Palestine where Israel is now located is a lamentable compromise of Palestinians’ claim to sovereignty over their historical homeland; a barrier for Palestinian refugees to return to their ancestral homes in what is now Israel; and an obstacle to the realization of Palestinians’ right to self-determination. On this view, IHL – which fortifies the distinction between Israel and the oPt – is, as it were, part of the problem.
Questions about the utility and suitability of IHL-based advocacy, are of course of pressing concern for the Diakonia IHL Centre in Jerusalem. As part of its efforts to address such questions the Centre has recently commissioned an expert opinion on occupation and the prohibition of apartheid; looked into the International Criminal Court (ICC) investigation of the Situation in Palestine; and taken a wide approach in its legal analysis of resurging violence and hostilities in Israel-Palestine in May 2021, including a thematic focus on discrimination. Most recently, on 17 June 2021, the Centre hosted a webinar titled ‘What good can international humanitarian law deliver for Palestinians?’, which featured a panel of eminent legal experts including Sari Bashi, Hassan Jabareen, S. Michael Lynk, and Chantal Meloni.
Webinar discussion: What good can international humanitarian law deliver for Palestinians?
The speakers critically reflected upon efforts that are being undertaken to induce Israel to comply with its international law obligations with respect to Palestinians and to secure accountability for violations thereof.
Michael Lynk discussed the Israeli settlement enterprise in the West Bank noting that there is near universal consensus that the enterprise is unlawful. He observed that while the international community has condemned Israel repeatedly for the violations of international law that the settlement enterprise entails, it has failed to take any practical steps to put an end to these violations and to secure a remedy for them. With the settlement enterprise serving as an example, Lynk stressed the need for the international community to take effective steps to ensure that Israel respects its obligations under IHL and international law more broadly and that it stop compromising justice for the sake of (misguided) considerations of realpolitik.
Sari Bashi discussed the emergence of apartheid as a framework that has begun to supplement, and which may supplant IHL as a narrative framework for accountability with regards to Israeli control over Palestinians. She argued that the apartheid framework is more effective than IHL at capturing the nature of the regime of institutionalized domination that Israel imposes on Palestinians; at addressing the fundamental discrimination the regime entails; and for movement building as it is more communicative and better resonates with Palestinians’ lived experience. Bashi observed that IHL is more effective as an enforcement mechanism for imposing restraints in the short and mid-term suggesting that it should be retained alongside apartheid.
Chantal Meloni spoke about recourse to international criminal law as a means to break the circle of impunity with respect to Israeli violations of international law affecting Palestinians. In this regard she spoke in particular about proceedings before the ICC. Providing an account of developments that led to an ICC investigation of the situation, Meloni stressed the potential significance of ICC proceedings while also specifying factors that may hamper them, including the protracted nature of the proceedings, the narrow scope of alleged crimes that have so far been flagged for investigation (alleged war crimes, but not crimes against humanity like apartheid), and significant political pressures threatening to distort the proceedings.
Hassan Jabareen highlighted a development in international law discourse with potentially important implications for Palestinian citizens of Israel. He observed that up until recently the dominant trend has been to separate between Israel’s practices in the oPt, which were analyzed primarily through IHL, and those towards its Palestinian citizens, which were treated as an internal matter. However, with Israel’s systemic discrimination towards its Palestinian citizens becoming more transparent and given constitutional expression with the enactment of the Nation State Law, there is an emerging trend of critically assessing Israel’s treatment of all Palestinians under its control as one unit of analysis. Jabareen pointed to examples of this in the recent surge of reports on Israeli apartheid; and in two UN publications from May 2021: a decision of the Committee on the Elimination of Racial Discrimination and resolution of the Human Rights Council establishing a commission of inquiry on violations in the oPt and Israel.
Discursive shift: Changing goals, new law and widening scope of legal analysis
In different ways, all four speakers dwelled on an unfolding shift in the legal and socio-political discourse concerning Israel’s policies and practices towards Palestinians. In this regard, in addition to other important points they raised, the speakers shed light on interrelated developments in advocacy based on international law concerning (i) the goals being pursued; (ii) the legal framework being applied; and (iii) the unit of analysis, that is the geographical area, legal regime and population covered.
With respect to goals, it was suggested that while debate has long focused on achieving a two State solution and Palestinian political independence in the oPt, emphasis should and increasingly is being placed on promoting justice and respect for Palestinians’ rights. It was observed that for decades realpolitik has been given precedence over justice as Israeli violations of IHL and international human rights law were disregarded in vain pursuit of a political resolution of the Israeli-Palestinian conflict. Lynk, Bashi and Meloni all expounded the view that respect for international justice and for Palestinians rights was not secondary to an equitable political resolution, but rather a precondition for it. While acknowledging that there is much value in a rights-based discourse, Jabareen contended that an emphasis on justice is at odds with currently predominant views in Palestinian society where the primary concern is not about securing equal rights with Jewish Israelis under one regime, but about vanquishing the colonial enterprise that Israel is seen to represent.
With respect to the legal framework, it was noted that while Palestinian civil society actors and a few others have for many years been accusing Israel of maintaining an apartheid regime, they are now being joined by an increasing number of actors expressing similar positions. These include leading international and Israeli human rights NGOs such as Human Rights Watch, B’Tselem and Yesh Din. The webinar highlighted the need to clarify how IHL based analysis of the Palestinian context and related advocacy ought to interact with analysis and advocacy informed by other areas of international law such as the prohibition and international crime of apartheid, the international crime of persecution and human rights law concerning discrimination.
The change identified with regards to the unit of analysis reflects an understanding that while IHL and international law more broadly establish a clear distinction between occupied territory and the occupant’s own sovereign territory, in practice Palestinians on both sides of the Green Line – who are one people – are all under the domination of the same Israeli regime. Increasingly, it is contended that international legal scrutiny of Israel’s conduct towards Palestinians should be conducted across the entire geographical area under Israel’s control, “from the river to the sea”, in a manner fit to identify, analyse and address the varying forms of structural discrimination that Israel is said to maintain towards all the Palestinians over whom it has power and control.
The insights emerging from the rich discussion at the webinar suggest that there is a pressing need for further analysis and critical reflection to clarify IHL’s interactions with other legal frameworks that have bearing on the Palestinian-Israeli context, and to develop advocacy strategies that effectively mobilise international law to overcome oppression and promote justice. The Diakonia IHL Centre in Jerusalem aims to pursue this agenda.
Header photo: a Palestinian school girl crossing a Zaytoun checkpoint on her way to school, Jerusalem. [Madeleine McGivern]
Middle photo: Grafitti on the separation wall in Betlehem. [Markus Marcetic/MOMENT]