Tribalism versus international law in the Israeli-Palestinian conflict  

Juan Cole

Informed Comment  /  October 9, 2023

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

― Robert Bolt, A Man for All Seasons: A Play in Two Acts [Film streaming here.]

Most of the public reaction to the fighting in Israel/ Palestine since Saturday has frankly had a tribal character. Israel and its partisans are sickened and angry to their cores about the targeting of civilians by Hamas. They are right to be.

Although I doubt Hamas has very many genuine partisans, the Palestinian cause does, and many of these supporters are circling their wagons around Hamas’s attacks, justifying them against the background of Israeli occupation and Apartheid. They also now focus on the deaths of civilians under Israeli bombardment of Gaza.

Not being willing to join in the emotional reactions of tribalism makes a person unpopular in most quarters. But I would like to argue that not only the events of the past few days but the entire Israeli-Palestinian conflict can only be understood in the framework of international law, which is also the only framework within which it ever has a chance of being resolved peacefully, as I argued yesterday.

From 1939 to 1945 the world plunged into a paroxysm of unprecedented, industrialized violence that left an estimated 65 million people dead.

When it was all over, horrified diplomats assembled in 1945 in San Francisco to craft a charter for the United Nations, hoping to forestall further such orgies of mass murder. Further instruments were crafted over time, including the Geneva conventions and most recently the Rome Statute that has underpinned the International Criminal Court since it was ratified by over 100 countries in 2002.

The UN Charter says that countries are henceforth not to acquire territory by force.

That article is the whole basis for the US and NATO and European Union condemnation of Russia’s invasion and occupation of part of Ukraine.

Israel’s seizure of the Palestinian West Bank and the Gaza Strip in 1967 was therefore illegal. Its annexation of Palestinian East Jerusalem was illegal, and was branded such by the United Nations Security Council.

The laws of military occupation envision a time-limited occupation during the shooting war. Since the Hague Regulations of 1907 occupiers have been forbidden to alter the lifeways of the people who are occupied. They may not expel them arbitrarily from their homes. And they may not send their own citizens into the occupied territory to settle it. These actions were proscribed in the Geneva Convention of 1949 and in the Rome Statute.

These actions were made illegal in international law to forestall a repetition of Nazi Germany’s policies in Poland, where Berlin made a concerted attempt to remove Poles and replace them with Germans so as to “aryanize” the territory and make it part of Germany.

Israel has violated all of these provisions of international law, in a concerted and deliberate manner for over half a century. It has been actively and consistently aided in doing so by the United States, France, Britain, Germany, Canada and other industrialized democracies, under the cover of a phony “peace process” supposedly working toward a “two-state solution,” which has never amounted to more than weasel words and ways of avoiding any confrontation with Israel over its lawlessness. An undertone of white nationalist racism toward the brown Palestinians tinged this outrageous insouciance toward international law, this profound betrayal of post-war ideals.

The same impulse to avoid further crimes of the sort the Axis made infamous also led to legislation on laws of war and the specification of war crimes. Hence, the principle of proportionality — you can’t launch a full-scale war because of a minor skirmish for instance. You may not deliberately target or recklessly endanger the lives of innocent noncombatants. These are war crimes.

The Rome Statute summarizes some of the agreed-upon war crimes from the Geneva Convention of 1949:

Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly …

(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives . . .

So although Hamas has the right to mount resistance to being unlawfully occupied by a foreign power, it doesn’t have the right to shoot down 260 attendees at a music festival, to take grandmothers and children hostage, or to fire thousands of unguided rockets at populated areas. Since these munitions have no guidance systems, shooting them off inevitably recklessly endangers noncombatant civilians, as witness the large number of Israeli casualties, with hundreds dead and thousands wounded.

With the exception of attacks on Israeli military personnel and bases, most of the actions taken by Hamas since Saturday have been war crimes, for which its leaders should be tried at the International Criminal Court.

At the same time, disproportionate use of force by the Israeli military, indiscriminate bombardment of inhabited apartment buildings, and reckless endangerment of large numbers of Palestinian noncombatants by directing fire at densely inhabited neighborhoods, are all potential war crimes on the Israeli side.

However, there is no prospect that any Israeli official will ever be held accountable for war crimes in any international tribunal, because the US and other patrons of Tel Aviv will intervene to prevent it. Indeed, it is unlikely that Israeli war crimes will so much as be described in that way by any North Atlantic leader.

Unless international law is given some teeth by the international community, these episodes of violence will continue to break out from time to time, and the tribes will gnash their teeth, and more people will be killed or deprived of their right to live a normal life.

You see, the law is the only thing that protects us from the devil, as the great playwright Robert Bolt had Thomas More say. Tribalism, now that is the countenance of Satan himself.

Juan Cole is the founder and chief editor of Informed Comment; he is Richard P. Mitchell Professor of History at the University of Michigan and the author of, among others, Muhammad: Prophet of Peace amid the Clash of Empires and The Rubaiyat of Omar Khayyam