17 Oct A Visible College, 2.0: Israel, Hamas, and the International Legal Community
In March 2022, I wrote a piece for Opinio Juris in which I described the international legal community as a “visible college.” Playing on Schachter’s concept of an “invisible college” of international lawyers “dispersed throughout the world” (p 217) but united in their faith in the law’s pacifying and transformative potential, my piece celebrated international lawyers’ willingness to engage with one another and the public regarding the Russian invasion of Ukraine. I argued that even in the context of the immense violence unleashed in Ukraine, one could find hope in the international legal community’s united stance against aggression and scholars’ interest in discussing legal responses to the war, such as the potential establishment of a special tribunal.
I have thought a lot about my piece—or rethought it, to be more precise—this past week. Our college of international lawyers has been highly visible yet again, but this time, it is a college divided. Many have rightly called upon all parties to the current hostilities to respect international humanitarian law and fundamental human rights. These include the rights to adequate food and water, both of which have become inaccessible to millions of civilians affected by the conflict. But others have, for want of more sophisticated terminology, taken sides. On one side, some esteemed international lawyers have spoken exclusively in Palestine’s defence, characterising Hamas’ attacks in Israel on 14 October 2023 as the legitimate exercise of a people’s right to resist occupation and colonial domination. Those on the other side have justified Israel’s response—which has included the siege of Gaza, aerial bombings, and the evacuation of more than 1 million Gaza City residents—as lawful self-defence against an armed attack, provided for in Article 51 of the UN Charter and long established as a rule of customary international law. Blogposts have been written, Tweets have been published, and I suspect, a few insults have been exchanged.
Debate and disagreement are vital components of any academic discipline. As academics, we customarily position our own work in relation to the fault lines in existing scholarly debate, and we regularly ask our students to familiarise themselves with, and write about, key controversies in the subject area. Debate and disagreement are also vital parts of international lawyering; one’s success as a lawyer often depends on their ability to construct a legal argument to justify the acts or omissions of their clients. Yet the international legal community’s responses to the events of the past week give rise to some important questions about our discipline. I pose three of these below.
I. Is There any Law Beyond Politics?
The past week has highlighted, first and foremost, the law’s susceptibility to politicisation. World leaders have unsurprisingly thrown international legal terminology around in their grandiose speeches regarding the latest developments in the region. Prime Minister Sunak and President Biden have, for example, repeatedly highlighted the Israeli people’s inherent right to defend themselves, but they have largely refrained from publicly reminding their ally that even military action taken in self-defence must be necessary, proportionate to the threat faced by the state, and compliant with international humanitarian law.
Yet more surprisingly, such political statements have been echoed in the public comments of scholars whom I, and many of my contemporaries, consider among the world’s brightest legal minds. Many international lawyers have sought, understandably and perhaps intuitively, to make sense of the devastating and frightening events of the past week through the lens of a legal narrative. For some of these lawyers, the past week has become part of the narrative of the Palestinian people’s fight for decolonisation and self-determination. For others, the past week is part of the Israeli people’s long history of defending themselves against the terrorist activity of Hamas and the threat it poses to their right to exist.
Elements of both these narratives might have some legal validity. But international lawyers’ partiality to legally selective stories in moments of crisis reveals just how closely the legal, the political, and the personal are intertwined. Indeed, as Saul points out in his recent op-ed in the Sydney Morning Herald, many have fallen prey to the idea that sympathising with the political motivations of one party to the hostilities precludes sympathy for the suffering experienced by the other party. The events of the past week also highlight a concerning tendency, within our discipline, to deploy international law in the ex post facto justification of political violence. As many scholars rush to justify the IDF’s or Hamas’ actions as internationally lawful, one cannot help but wonder if any of the parties to the current escalation of violence believe they are acting in pursuit of legal rights to self-defence or title to territory, or if the battles being fought are purely manifestations of centuries-old political and religious animosity. Our willingness to pin legal justifications to prior or ongoing acts of violence—acts of desperation, anger, and revenge—highlights the dangerous political utility of international law, or it points, perhaps, to the law’s total inseparability from politics.
II. Is International Law an Art or a Science?
Ultimately, the invocation of international law to justify Hamas’ or IDF’s actions is an exercise in the art of legal argumentation: the mobilisation of legal terminology to capture an audience’s attention and convince it of the validity of one party’s actions (or the invalidity of another’s). This artform is often exercised in crisis situations in which the world finds itself in legally complex territory: the NATO bombings of Kosovo; the US invasions of Afghanistan and Iraq; and the UN-authorised “humanitarian intervention” in Libya. Yet what has been lost in the exercise of this artform in relation to Israel and Hamas is precision and detail. Most striking is the way that world leaders and legal commentators alike have abandoned the distinction between the laws regulating the use of force and the laws regulating the conduct of hostilities. A frightening number of interlocutors in this debate have assumed that the existence of a legal right to resort to force automatically justifies whatever means are employed. The result is that world leaders and many legal commentators have suggested, perhaps accidentally, that the IDF’s exercise of Israel’s right to self-defence or Hamas’ pursuit of the Palestinian people’s right to self-determination renders lawful the targeting of civilians, the perpetration of sexual violence against them, the taking of hostages, the denial of food and water to civilian populations, and their forcible transfer to conditions in which their basic needs cannot possibly be met. When made by world leaders, such claims are neglectful of the duty, under Common Article 1 of the Geneva Conventions, to ensure respect for international humanitarian law. When made by legal academics, they represent an abandonment of our core professional obligation to know and share the precise details of our subject area—details relevant, in this context, to human survival.
III. The Role of Our Discipline
While we are dutybound to understand the law, it is equally important for us acknowledge the role of international law and lawyers in perpetuating both the everyday and exceptional forms of violence perpetrated in Israel and Palestine. I have found myself thinking, over the past week, about the role I have played. Nearly a decade ago, at the very beginning of my academic teaching career, I was handed a wad of existing lecture notes for an undergraduate course I was soon to deliver on public international law. Knowing nothing about pedagogy or curricular decolonisation, I graciously accepted the notes, unquestioningly delivering the course as my predecessors had designed it. The only mention of Israel and Palestine in these documents was a brief note to students that Palestine does not satisfy the Montevideo criteria for statehood.
My approach to teaching this subject matter changed dramatically as I found my own critical voice within the classroom. But in the same way that my young self unflinchingly accepted those notes and reproduced their content, we in the international legal community are prone to accepting the predetermined rules and boundaries of our own discipline. Now is the time to question those rules and boundaries, asking how our discipline has upheld the patterns of hatred and injustice informing the current war, and thinking about how we might revise concepts like international peace and universal human rights such that they meaningfully improve the lives of the millions suffering because of the current violence. The first step, as Otto argues, is to challenge the fixed, binary identities upon which international law is based. We must, for example, question international law’s fixation upon Westphalian states and its marginalisation of other entities, acknowledging the roles of Sykes-Picot and the League of Nations’ Mandate system in creating the legal geography of Israel and Palestine — a geography in which precariousness is a daily reality and military violence is permanently on the horizon.
We should also resist the idea that this conflict is the domain of men with a propensity for violence. Women are absent from many media images of the current violence in Gaza, and where they are visible, they are most often portrayed in suffering or mourning. This is affirmed in humanitarian and human rights discourses around the conflict, in which women and girls are consistently portrayed as subjects of state or international protection. Yet scholars might consider the roles women play as perpetrators of violence and makers of peace in the region, asking how international organisations and local actors can harness their work in the pursuit of justice and peace.
Finally, we must continue to challenge international law’s normalisation of violence as the corollary of a state’s right to sovereignty and territorial integrity. We must problematize the way that, under the international laws regulating the use of armed force, violent offence naturally invites killing in violent defence. And we must disavow international law’s understanding of “peace” as the absence of war. Within this conception, Israel and Palestine have constantly vacillated between “relative peace” and war. Yet even in times described as “relative peace,” the everyday lives of millions have been defined by the trauma resulting from occupation, displacement, and the continual threat of militarism. The past week has indeed shown that the college of international lawyers has much to debate, but this debate must proceed from two clear starting points: our common humanity, and our “critical faith” in the law’s transformative potential.