Although the 11-day Israel-Palestine conundrum appeared to reach its domestic denouement towards the end of May 2021, developments over the past few weeks coupled with international debate have brought some interesting points to light. The formation of the new coalition government in Israel, which ended the Netanyahu era in Israel, invited a variety of reactions all across the globe and roused anxiety in hundreds of thousands of people. Moreover, the recent clashes between Israel and Palestine raised some important questions regarding the violation of laws of war and proportionality of attacks which must be analyzed. This article would focus on three things – the analysis of the conflict from the perspective of customary international humanitarian law (IHL), international reactions to the issue and the policy outlook of the new coalition government in Israel (with respect to Palestine).
The Legality of the Conflict
The Status of Palestine
The United Nations recognizes Palestine as a “non-member observer State.” However, it allows Palestine to confer the title of “State of Palestine” and recognizes its President, Mahmoud Abbas, as Head of State of Palestine. Ever since 1967, the year that marked the beginning of the occupation of Palestine, there have been talks under what is generally known as the ‘Middle East Peace’. It primarily aims at peacefully negotiating between Israel and Palestine and recognizing the right of self-determination of the Palestinian people by hoping to implement the two-state solution: “an independent, sovereign, democratic, contiguous and viable State of Palestine, living side by side in peace and security with Israel on the basis of the pre-1967 borders.”
However, many conflicts have marked the two territories with bloodshed, trauma and violence, rendering Palestinians to live in a state of perpetual fear and deprivation speaking volumes about the ground reality. Often both sides accuse each other of innumerable things such as disproportionate use of force, facilitation of terrorist operations and illegal occupation. This begs the question about the efficacy of organizations such as the United Nations and the many treaties that govern the laws of war.
The Laws of War
Human Rights Watch has extensively studied the region and documented how Israeli officials have committed crimes against humanity of apartheid and persecution against Palestinians. Moreover, the International Criminal Court is currently investigating the ‘Situation of Palestine’ for examining the various crimes that have been committed since 13 June, 2014. In preliminary rounds of investigation, the Prosecutor (Fatou Bensouda) found substantial war crimes being conducted by both the Israel Defense Forces (IDF) as well as Hamas and the Palestinian Armed Groups (PAG). Some of the violations committed by the IDF include ‘disproportionate’ attacks on Palestinians, willingly killing and causing serious injury, intentional direction of attacks, forced displacement, among others. Crimes similar to those committed by the IDF have also been committed by PAGs. These heinous crimes cannot be swept under the rug for either of the belligerents.
These crimes are violations to the laws reflected in the four Articles of the Geneva Conventions and the IHL. The nature of the ICC is such that it cannot take any firm, tangible action in reprimanding and correcting those guilty of committing such heinous acts and can only issue vaguely worded directives. This directly raises questions on how necessary the customary IHL is in scrutinizing a conflict. A primary analysis into the same reveals that these laws, with their sophisticated jargon, only serve to abstract an event in time and not holistically consider the situation.
Modirzadeh, as cited by Gross, argues that IHL is “technical, acontexual and ahistorical”. Moreover, owing to its nomenclature itself, customary IHL is based on “customs” or behaviours that are deemed right according to the western standards. Its interpretation is also very arbitrary and non-enforceable. These often highlight customary IHL’s redundancy in solving matters such as the Israel-Palestine issue. Jus ad bellum can serve as an alternative for examining the bigger picture, however, the application of the rules of self-defence can be interpreted in several ways, only adding to the complications.
The Case of the 11-Day Conflict
The 11-day ‘armed conflict’ between Israel and Palestine was governed under Article 3 to the Geneva Conventions of 1949. Another Human Rights Watch report extensively analyses this conflict through this lens (alongside several other provisions such as the Additional Protocols of 1977 to the Geneva Convention) contextualizing which sides of the warring parties potentially breached laws and under what circumstances. The overarching theme that was emphasized multiple times in the report was ensuring minimal harm and risk to civilians by both sides to the party. In other words, the principle of proportionality was to be maintained at all times; in simple terms, it means ensuring the safety of all citizens (or ‘stateless people’).
However, a closer analysis of the verbatim of the customary IHL reveals its vagueness and suggests that it was designed for a more idealistic situation than realistic. For instance, “effective advance warning” is mandated by the laws to ensure civilians are informed beforehand. However, what counts as “effective” is not specified. It is simply stated that a “A warning that does not give civilians adequate time to leave for a safer area would not be considered “effective”.” In a real-time conflict, it is difficult to discern what would count as an ‘effective warning’ and what does not.
The inadequacy of customary IHL paints a rather bleak picture. It appears that the existing mechanisms are insufficient in holding the necessary actors culpable and curtailing such atrocities from being committed against anyone. The ethics of a conflict go for a top-spin when looked at realistically. These legal and ethical frameworks are integral to the international community especially owing to the huge role they play in streamlining several states’ foreign policy and responses. However, they are not as effective in questioning the legality of specific attacks.
China and Russia are key international players that try to assert their stance wherever they see an avenue. In the meeting that was held on May 16th, China slammed the US for not allowing the UNSC to reach an agreement regarding the crisis. It proposed a four-point solution for the conflict wherein it called for the cessation of ceasefire, humanitarian assistance, international support and reaffirmed its stance on advancing/implementing the two-state solution. Russia echoed similarly in its stance: it called for a quartet meeting (with the US, the EU, the UN and Russia) and was ready to organize direct talks if it meant advancing the two-state solution. Overall, it is evident that their stance is consistent with their foreign policy, as stated earlier, and exert their indirect influence.
However, the US has more direct influence over Israel, and subsequently, the Palestinian issue. It has taken a stance internationally in favor of Israel, overlooking the violence inflicted by the Israelis on thousands of Palestinains, reiterating Israel’s “legitimate right to defend itself” from the rockets launched from Gaza. Owing to the US’ pro-Israel stance, issuance of any kind of statement by the UNSC was also held up. The EU has tried to maintain a lukewarm position by calling both sides to de-escalate, however, without the US support, it is posited in a much weaker position to solve the issue. India too maintains such a position owing to its oil dependency on the Arab states and security ties with Israel and the US. India has shown its support to the two-state solution, however, under Israeli pressure, this idea has become blurry. On the other hand, Iran had taken a tough stance against Israeli actions during the 11-day conflict, calling for strict international action on ‘apartheid’ Israel.
Netanyahu to Bennett – End of an Era or the Beginning of a New One?
The Israeli eight-party coalition government, cobbled together by the centrist Yair Lapid and ultra-nationalist Naftali Bennett, toppled the 12-year old Netanyahu administration earlier this June. Political analysts worry about the long-term survival of this administration since the parties had little in common except the urge to oust Netanyahu. This event also invited multiple reactions from world leaders. While the US and its European friends congratulated Bennett, Netanyahu immediately took things to Twitter where he said, “We’ll be back – and faster than you think.” However, Iran remained rather insouciant. They believe that there will be hardly any change in the Israeli foreign policy and that the change in government is Israel’s internal matter. The Palestinian President Mahmoud Abbas welcomed the new government, in hope to reach an amicable solution to the long-standing Israel-Palestine problems.
The new administration is more interesting than it might appear. It comprises no fewer than eight parties, spanning across the entire ideological spectrum, having two leaders — Bennett and Lapid (current Foreign Minister, set to become the Prime Minister in 2023) — each with a veto, effectively meaning the government cannot take a certain position without both of them agreeing. The agenda of this government towards the Palestinian issue is not clear, simply because it was formed for a very different reason — to solve Israel’s ‘governance crisis’ and boot Netanyahu out of power. The good thing about this jumble is that major moves on the Israel-Palestine issue would now not be easily possible, since the eight-party coalition spans across the ideological spectrum including the ultra-right nationalists and Arab parties. Nevertheless, there is still little to no hope for an Israali compromise when it comes to the question of giving Palestinians what they have been asking for all these years (to President Abbas’ ado).
In his speech as the incoming PM, Bennett made little to no mention of Palestine; he just said that he would work to “strengthen the building of communities across the land of Israel”. This is understood to include the Palestine occupied West Bank and the Gaza Strip, as seen by Israel. Even the Arab parties that are part of the coalition seem to forgo the struggle for Palestinian rights in exchange for winning certain civic benefits for the Palestinians in Israel. In addition to the cross-border violence and missile attacks, Bennett’s coalition government approved 31 new ‘Settlement Zones’ in the West Bank. This is seen as yet another move to dismantle the Palestinain claims and identity, sabotaging peace and deepening the occupation, repression and disposition of millions of Palestinians by certain leaders. The United Nations pitched into this matter by calling the settlements illegal, but to no avail. Such uncertainty and helplessness triggers anxiety in the minds of many concerned with the peace and stability of the region.
Overall, nearing a solution that will benefit both parties seems like an abstracted reality. The customary IHL serves little to no recourse for justly apprehending the war criminals. The verbatim of the law itself can easily lead one into several grey areas and down the rabbit-hole of trivialising the matter and looking at it in vague monochromatic terms. The international response to the issue at hand does not make things any better. The vagueness in statements and superficial engagement, while understandable from a realist perspective, hardly make any on-ground impact. Moreover, ripples caused by the domestic political developments in Israel seem to have pushed this issue farther from being solved. With a very divided view today, it will be interesting to see whether the world leaders have a moment of reckoning anytime soon and commit themselves to reaching amicable and implementable solutions to the Israel-Palestine conundrum.
This article was co-authored by Deepanshu Singal and Tejaswini Vondivillu. They are 3rd-year undergraduate students at Ashoka University, pursuing their major in Philosophy, Politics and Economics with a minor in International Relations.