Is Israel Above International Law?

by Haim Bresheeth

15 July 2020

Israel’s plan to annex most of the West Bank, despite opposition from the United Nations and the European Union, has made the country’s apparent immunity from any legal sanction or political pressure an urgent and pressing issue once again. 

Israel’s history of defying international law is as old as the state itself. By the time, in May 1948, that Israel proclaimed its independence, it had already expelled half of the Palestinian population from their homes. Ever since then, it has refused to let these refugees return, and no sanctions have been proposed or enacted to make it implement the many UN resolutions to say that it must do so. It is clear that no system of law – local, national or international – can exist and function without sanctions and punitive measures in the case that legal decrees are ignored by the culprit.

In the case of Israel, the result was and remains, total immunity from international law – Israel, protected by the strongest western nations, especially by the US – is free to carry out any illegal action it wishes, secure in the knowledge that there shall be no sanction or retribution for breaking international law.

A history of flouting international law.

It is difficult to think of another country that has managed to defy as many international legal instruments as Israel and remain unpunished. It is impossible to include here even a partial list of such infringements, but it is important to mark the boundaries, so a couple of examples shall suffice.

Israel has occupied the whole of Palestine (as well as Egyptian, Syrian and Lebanese territories) ever since June 1967, refusing to withdraw, despite the demands of numerous UN resolutions. In contrast, Iraq occupied Kuwait in 1990, and suffered enormous destruction by the coalition attack in 1991, after it refused to withdraw. Similar cases exist elsewhere, such as the Nato bombing of Serbia, which lasted three months, from March to June 1999. This bombing continued until Serbia accepted Nato’s ruling and withdrew from Kosovo. In 2003, the UN sanctioned a war against Iraq, based on false and fabricated information.

Can anyone even imagine such action against Israel? Yet its infringements and war crimes greatly surpass those of either state and have run more consistently and for longer. Israel has been involved in numerous acts of piracy, by air and sea, as well as countless cross-border assassinations and the murder of civilians, but it has never had to face legal procedures, political pressure, or pay compensation to victims. This surely is not normative or customary, as such infringements have the combined effect of seriously weakening the authority and efficacy of international bodies such as the UN, or legal instruments such as the fourth Geneva convention, and the nuclear non-proliferation treaty, to cite the main examples. In the case of the mass killing of innocent civilians, Israel excels in such brutal acts – in Lebanon, Syria, Egypt and of course Palestine, and notably in Gaza – with no international action ever taken. 

Such disregard for international law and norms is unique, as is the fact that it has gone unpunished for almost eight decades. Ever since 1948, a pattern has been established: Israel enacts an atrocity on the territory of one of its neighbours; this leads to an international pantomime – hue and cry, politicians voicing ‘serious concern’ and demanding recourse – but no action or sanctions are ever enacted, and Israel continues to the next crime.

The war crimes committed by Israel are so numerous that it’s unlikely a complete list exists. From time to time, the UN general assembly, or the security council, debate such infringements and often pass resolutions, but never agree on sanctions, as Israel is protected by the strong western alliance and hence enjoys practical impunity. The case of the occupied Palestinian territories is the obvious example – Israel has broken all the provisions of the fourth Geneva convention, by occupying, denying basic rights and services to the indigenous population, stealing their land, moving almost a million Israelis to illegal settlements, terrorising the population, and expelling a quarter of million Palestinians in 1967. 

Why is Israel treated differently?

It is important to determine the reasons for the unique exception from legal sanctions enjoyed by Israel, a small state without the privileges of a superpower. The answer lies mainly in the use and abuse of the Holocaust as an ‘insurance policy’ by all Israeli leaders since 1948. Using the justified guilt about the Holocaust in some European societies and building on that and arguments of exceptionalism, Israel has managed to secure itself an extra-legal status, whereby acts which are illegal when committed by other states, are ignored when committed by Israel.

Recently, for example, the international criminal court (ICC) prepared to charge Israel with war crimes in Gaza, after years of investigation, but Germany swiftly moved to shield Israel from such action, claiming that the court lacked authority to act on violations in Palestine. Germany’s understandable guilt about the Holocaust still forces automatic support of an illegal and brutal occupation by Israel. Are war crimes less criminal when the culprit is Israel? What right has Germany, with its particular history, to act in support of a brutal colonial occupation? The US has shielded Israel for decades in a similar manner. What right has either country to be the arbiter of illegality?

Such knee-jerk actions guarantee that the conflict intensifies, boosting a brutal military occupation which would be strongly resisted if another state had been involved. Such actions by western nations destabilise the Middle East and undermine the very fabric of international law.

The illegal annexation could destabilise the region.

The move towards the illegal annexation of most of the West Bank is the ultimate example of lawlessness supported by the US – an unnegotiated, unilateral illegal action against the rights of the Palestinians.

Prime minister Benjamin Netanyahu’s failure to meet his deadline of annexing by 1 July is a clear sign that even Israel’s own military opposes the move

Before the 1990s, the Israel Defense Forces (IDF) controlled the West Bank and had to invest enormous human and material resources in policing the whole of Palestine. This dire situation, which had developed in the wake of the first intifada, pushed Israel to arrange the Oslo accords, establishing a Palestinian National Authority (PNA).

Since then, the PNA – trained and armed by Israel, and partially funded by the EU and the US – has securitised the occupied territories on behalf of Israel, removing both the duties and the cost from the IDF. But annexation may drive the PNA towards collapse; ultimately, it could lose control of the Palestinian security organisations, hated and despised by the Palestinian people.

The IDF does not wish to lose this important easing of its duties and worries greatly about its ability to control the occupied territories if such a scenario takes place. It is right to be worried. The attacks on Lebanon in 2006, and on Gaza in 2008-2009, 2012 and 2014 have shown the IDF’s inability to act in a logical and efficient way against well-organised guerrilla units.

This is not merely a question of firepower – in 2006, Hezbollah had few thousand well-trained and motivated fighters, and the IDF threw more firepower at them than used by both sides in El Alamein during the second world war. It is impossible to defeat a guerrilla force by firepower alone, as the US army found out in Vietnam.    

The IDF has vetoed the annexation programme as Netanyahu presented it, and hence he appears to have had to quietly abandon it for the time being. But Israel has not abandoned its real agenda, which continues apace.

The failure of the international community, such as it is, to move against such atrocious unlawfulness is a danger to the rule of law everywhere, at a time of great international fragility. International law must be enforced before further, irreparable damage is caused to the Palestinians, and a dangerous precedent is set.

Haim Bresheeth is a professorial research associate at SOAS, University of London. His new book An Army Like No Other: How the Israel Defence Forces Made a Nation will be available from Verso in August 2020.


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