Tel Aviv has learned how to weaponise international law to confound those seeking a solution towards freeing Palestinians of Israeli occupation.

While Israel operates outside of international law, inconsistent and contradicting interpretations thereof are employed, and indeed necessary, for Israel’s backers to secure Tel Aviv’s colonial grip on Palestine and conceal structural human rights violations. 

According to what narrative is currently suitable, the Israeli regime presents Palestine either as a non-state or as a foreign country. 

The International Criminal Court (ICC) officially opened an investigation into war crimes in the occupied Palestinian territories. The Israeli government condemned the ICC and chief prosecutor Fatou Bensouda, accusing them of antisemitism. 

Israel is not a signatory to the ICC and thusly claims it has no obligations. This week, Israel reiterated that it “completely rejects” any assertion made by the court. However, the controversy surrounding these latest events highlights the importance of approaching the situation in Palestine through international law.

A history of oppression

While the ICC’s probe is a significant step forward regarding justice and accountability in Palestine, it only focuses on a marginal portion of Israeli atrocities. The probe takes into consideration the situation since 2014, when Israel launched another large-scale war on Gaza.

Palestinians have been victimised since the emergence of the racist settler-colonial project of Zionism. Israel’s ongoing human rights violations have been well-documented since the colony was officially founded in 1948 through a campaign of terror and ethnic cleansing, also known as the Nakba.

Israel’s maltreatment of international law is obvious. The Fourth Geneva Convention prohibits an occupying power from transferring its own population to occupied territory. It forbids forcible deportation of people from occupied territories. Population transfer and expulsion are, however, at the core of the Israeli settlement industry. 

Daily life in Palestine is characterised by a plethora of colonial Israeli policies, including home demolitions, evictions, killings, extensive use of force, detention, and torture. 

Numerous scholars as well as rights organisations have suggested that Israel’s actions amount to genocide

Israel’s contradictory rhetoric

Israel has managed to avoid obligations under international law not only due to its role as a Western power, but also by insisting on a contradicting rhetoric.

While Israel controls all of Palestine and keeps the West Bank and Gaza under military occupation – effectively preventing Palestinian statehood – Israel simultaneously treats the Occupied Territories as a foreign country.

Israeli politicians openly consider all of Palestine to be Israel, justifying this through biblical references and colonial endeavours. The West Bank is referred to as “Judea and Samaria.” Israeli maps do not show Palestine. In fact, as Israel was created on top of, rather than alongside Palestine, any visibility of Palestinian national consciousness may jeopardise the colonial project.

The inconsistent approach becomes apparent, for example, through Israel’s blockade of Gaza or when Israel refuses to vaccinate Palestinians. 

According to Article 56 of the Fourth Geneva Convention, Israel, as the occupying power, is legally required to protect Palestinians. It is obliged to use preventive means to combat the spread of epidemics. Israel ignores this. Any actual aid given to Palestinians is presented as a benevolent gesture. In fact, Israel’s handling of the pandemic was internationally commended

The practice of holding people under military subjugation while denying them basic human rights is called apartheid - a crime legally sanctioned under international law.

Diplomatic discourse

Israel’s colonial nature is absent from the dominant discourse that presents the situation in Palestine as a diplomatic “conflict.”

Israel’s major allies, which have a considerable interest in upholding this narrative, have voiced harsh criticism against the ICC.

Germany’s Foreign Minister Heiko Maas claimed that “the court has no jurisdiction because of the absence of the element of Palestinian statehood required by international law.” Maas alleged Germany would “support the establishment of a future Palestinian state as part of a two state solution negotiated by Israelis and Palestinians.” 

Maas’ illogical rhetoric is not new. Keeping Palestine/Israel within a lawless zone, Maas furthers the exclusion of Palestinians from access to rights while shielding Israel from accountability. When asked, where Palestinians should seek an investigation, German governmental representatives failed to voice a answer. Through its unconditional ideological support for Israel, Germany is highly complicit in the suffering of Palestinians and has helped sabotage any prospects of a Palestinian state.

Similar rhetoric was echoed by the US administration, who also had no answer when asked where Palestinians should turn to seek justice. The US Department of State's primary interest is its “strong commitment to Israel and its security,” and “opposing actions that seek to target Israel unfairly.” 

In many ways, Israel depends on and serves as a proxy of the United States, which is committed to upholding Israel’s superior role in the region.

While Israel’s Western allies are shielding Tel Aviv from accountability, they justify their support for Israel through a rhetorical framework of diplomacy. But the two-state solution was never a viable concept, nor are there any negotiations. Rather, the two-state fallacy has served the United States, Germany, and others as an easy distraction from the actual problem. There can, of course, never be peace nor prosperity as long as Israel exists in its current form. 

Israel’s colonial expansionism necessitates constant oppression and exclusion of Palestinians. An implementation of human rights would mean the end of Israel as we know it today.

The colonial component of the ICC 

Yet, the ICC itself follows the approach of “two sides.” In its statement, it equates “both Palestinian and Israeli victims.” One cannot discuss justice in Palestine without addressing the core issue. The Zionist project was intended as a European colony in Western Asia. The settler-colonial nature of Israel is evident in the continuity of the Nakba.

The ICC’s “central concern” is, however, directed toward “the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides.” 

The cycle of violence is a common Orientalist trope that implies parity where there is none. One side is the indigenous population. The other side is a nuclear-armed, first-World settler movement. Israeli actions and Palestinian reactions have different causes. 

Under international law, Palestinians have a legal right to resist. The legitimacy of peoples’ struggles for “liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle'' is enshrined in UN resolution 37/43. Yet, the Palestinian struggle is still more often than not dismissed as terrorism.

The ICC itself has been criticised for having a colonial bias and a tendency to focus its prosecutions on Africans. The system of international law has its flaws as well. While the ICC’s approach itself may not consider the colonial component of the situation in Palestine, it has, however, the potential to raise attention toward rights violations and war crimes. 

A focus on international law may be of importance to make visible Israel’s fragile dependence on its Western backers as well as Tel Aviv’s manifold responsibilities for Palestinian suffering.

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