International law as a construct and practice that purports to contain inter-state conflicts has been moribund for some time, even if it works well in areas that do not concern state security. Along with it, the so-called rule-based international order, which was arrogantly proclaimed in the 1990s as history’s final destination, is also suffering a severe period of demise. In this conceptual and practical unraveling, it is not those who were given a role in the periphery when it was first constructed, and thus could voice potentially legitimate objections, but rather the main actors such as the US and Russia, Israel, which was given a blank check, and those who generate coercive legitimacy through constant and uninterrupted security concerns, that play a decisive role.
The misery of the current international order is not the subject of this article, but I felt the need to make this brief introduction in order to roughly identify the place of Israel in the Palestinian question, which is currently reignited and back on the agenda, with its unlawful and unethical interventions and actions in almost every sense. As I mentioned above, the current international order, especially in the Palestinian issue, gives Israel a very wide margin of action in which international law can be violated freely from time to time. Since some of these violations (such as the prohibition of apartheid, the prohibition of the use of force, etc.) contravene the peremptory rules (jus cogens), a kind of constitution of international law, the persistence of violations even affects state legitimacy, since the emergence and continued existence of a political entity claiming to be a state is based on the assumption that it will abide by these peremptory rules from the outset.
So, what rules of international law does Israel violate in Palestine? Let me continue by limiting the issue to armed conflict (when we go beyond this boundary, we need to address the much more serious problem of apartheid). Israel’s violations here basically relate to two main categories: jus ad bellum, which refers to the justifications and criteria that legitimize war, and jus in bellum, which refers to the rules that must be observed during war. Although these two categories are inevitably interrelated, compliance with or violation of rules in one category does not affect obligations in the other category. In other words, it is quite possible to act lawfully in one category and unlawfully in the other.
Israel’s violation of jus ad bellum requires a wide debate because there are interrelated instances of occupation, annexation and aggression. Although Western circles emphasize Israel’s right to self-defense in every Palestinian attack, any sane international jurist/lawyer will confirm that Israel has no such right. Why? Because unilateral use of force is prohibited and if there is a conflict, one of the parties is necessarily the aggressor. Since its founding in 1947, Israel has been constantly expanding, and this expansion has not been accepted by its interlocutors (i.e. the Palestinians), and therefore Israel has no right to self-defense. Therefore, Palestinians in the occupied and annexed territories have the right to resist Israeli occupation and colonization. The manner in which this right was exercised in the latest action can undoubtedly be criticized, but this criticism can only be about jus in bellum, not jus ad bellum. One might ask, of course, whether there is even a state called Palestine. Realistically, there is no such thing as a full-fledged Palestinian state, but the Assembly of States Parties that administers the International Criminal Court (ICC) and the Court itself have already put an end to this debate, as well as the many states that legally recognize a state “called” Palestine.
In terms of jus in bellum, Israel’s record is perhaps even worse. Interestingly, however, when it comes to Israeli violations in this category, the mechanisms of international law, particularly international criminal law, seem to be somewhat more functional. Three factors stand out for me: first, the fact that Israeli atrocities (I use the word not to emphasize a simple personal anti-Israel sentiment, but to refer to atrocity crimes which are the very raison d'être of international criminal law) can be publicized to the world more effectively than before; second, that the mechanisms and institutions of international criminal law are not controlled by great powers; third, that the perpetrators, not the state, are directly prosecuted for these crimes.
Although war crimes are often mentioned when referring to violations in this category, I think crimes against humanity need to be taken into account more than war crimes. Genocide, which is a special form of crimes against humanity, is an unnecessary topic of discussion because its political side is much more dominant and it is very difficult to prove. Moreover, it is possible to hold the state directly responsible for genocide through the International Court of Justice (ICJ), but it is very unlikely that the Court will hold Israel responsible for genocide. We can therefore speak of two basic categories of crimes that can be the subject of international criminal law. I would like to underline a few important points that make these categories of crimes meaningful for the subject of this article:
- Being justified in terms of jus ad bellum does not mean that these crimes can be committed. In other words, even if Israel had the right of self-defense, what is being done in Gaza today is against jus in bellum. The same goes for Hamas and other Palestinian groups. The fact that Palestine has the right to self-defense does not legitimize harming civilians who are not legally involved in the conflict and who can be protected during the conflict.
- The fact that one side commits these crimes does not legitimize the other side committing similar crimes. The war crimes of Palestinian factions do not justify Israel’s atrocity crimes.
- These crimes are prosecuted on the basis of individual responsibility, which distinguishes them from, for example, human rights violations.
- There is no statute of limitations for these crimes, nor is the fulfillment of a superior order a valid excuse.
- While war crimes only include violations in situations that can be defined as armed conflict, crimes against humanity can be committed both in times of armed conflict and in times of peace. The framework of crimes against humanity is further expanded in the Rome Statute establishing the ICC, and acts committed against a specific group widely or systematically are included in this category.
- There is no statute of limitations on these crimes and perpetrators of these crimes can be prosecuted by all states, regardless of where they are committed. According to this principle of so-called universal jurisdiction, any state can adapt its own criminal law accordingly.
- However, even if this formula for combating piracy is extended to atrocity crimes, it is politically dangerous and unnecessary for a single state to go after the high-ranking officials of another state. This is precisely why a permanent court with automatic jurisdiction (ICC) was established to try the perpetrators of these crimes.
- The immunities defined by international law for heads of state do not apply to perpetrators of international crimes. Therefore, the responsibility of a head of state for atrocity crimes, even while in office, can be the subject of both the principle of universal jurisdiction and the jurisdiction of the ICC.
Although it follows from these brief points that Israel’s senior military and political leadership can be tried for war crimes and crimes against humanity, the practical situation is not so clear and easy. Let me start with universal jurisdiction. Yes, international law allows each state to rely on this principle in its criminal justice system. However, not all states have adopted this principle, and those states that have adopted it have not been very willing to prosecute high-level figures from other states based on it. However, in Belgium, which enacted a universal jurisdiction law in 1993, a criminal complaint was filed against Sharon and the issue occupied the agenda for a while. Spain, which prosecuted former Chilean dictator Pinochet, is also among the states that have made the principle of universal jurisdiction a part of its legal system, although it later narrowed its scope. In fact, the Turkish Penal Code (Article 13 of the Turkish Criminal Code) also recognizes the principle of universality, including some of the international crimes. So, in theory, it is possible for the courts of states where the principle of universality is recognized to try Israeli perpetrators of international crimes. But for predictable reasons, this is extremely unlikely.
Second, while heads of state or high-ranking officials do not enjoy widespread and traditional immunity from prosecution for international crimes, it is very difficult to prove their responsibility for the crimes committed beyond doubt and with sufficient clarity to convince the world community. Due to capacity constraints, leading international criminal institutions such as the ICC prefer to focus on those who planned and executed the atrocity policy and campaign as a whole, rather than on the ordinary figures who committed atrocity crimes. But even then, causality is hard to establish, which is the main reason why the cases currently pending at the ICC often result in sentences being handed down to mid-level executives, while high-profile figures are not pursued.
Third, although relatively independent and transparent, the ICC is not immune to the political environment and developments. In the case of international crimes committed during the US invasion of Iraq, the Court quickly closed the case on the grounds that it did not (legally) have jurisdiction in Iraq, while in its current investigation into Afghanistan, at least so far, the Court has not so much as hinted at incriminating American soldiers and commanders. Russia’s condescending response to the Court’s decision to arrest Putin in the Ukraine case, and the silence of the ICC’s state parties, justify pessimism about the Court’s effectiveness. It is possible that the ICC, which is already investigating crimes committed in the Palestinian territories under Palestinian jurisdiction, will take up the recent Israeli attacks and the highly probable war crimes and crimes against humanity. However, there is little reason to expect the Court to take the bold step of, for example, taking action to put Netanyahu in the dock, especially in an environment where the Western world is giving Israel a carte blanche and emphasizing in chorus Israel’s non-existent righteousness.