Rethinking International Law After Gaza Symposium: Massacring Civilians – Genocide as International Legal Conundrum

[Professor Lena Salaymeh is a jurist and historian who teaches at the École Pratique des Hautes Études-PSL. She was previously Professor of Law at Tel Aviv University. She co-founded the Decolonial Comparative Law Program at the Max Planck Institute for Comparative and Private International Law in 2019 and co-directed it until 2023.]

Horrifying images of children in Palestine and Lebanon murdered and mutilated by Israeli bombs are provoking renewed questions about the efficacy of international law. Current debates frequently rest on a presumption that the laws generated by contemporary international institutions (particularly the United Nations (UN)) are “good,” but the application and enforcement of those laws is “bad.” Accordingly, current debates tend to concentrate on how to “improve” the application and enforcement of contemporary international laws. In this essay, I propose a reconsideration of these conventional assumptions by arguing that some contemporary international legal doctrines manifest epistemic neocolonialism.

After supposed “formal decolonization” in the mid-twentieth century, neocolonialism emerged as a new form of domination. The category of neocolonialism reflects the perspectives of many in the global South who experience neocolonialism as extending prior forms of colonialism. In general, previous forms of colonialism were overt; in contrast, neocolonialism is obscured by institutionalization and legalization, often in the form of international institutions (such as the International Monetary Fund) and international legal categories (such as “human rights”). The contemporary international legal system largely began in the context of colonialism and it is part of neocolonialism’s institutionalization and legalization. Neocolonial power is perpetuated by the structural inequality of the UN, which gives more power to certain global North states than to other states (such as in the Security Council). Similarly, international legal organizations (like the International Criminal Court) primarily prosecute global South leaders for violations of international law. Since neocolonial states mainly enforce it, the contemporary international legal system’s structure generates rule by law, not rule of law. These are well-known critiques of the contemporary international legal system. 

However, the neocolonialism of contemporary international law cannot be overcome by merely changing the structure of international legal institutions or expanding international law’s enforcement in the global North. Specifically, as I have elaborated elsewhere, the contemporary international legal system cannot be “fixed” by interpreting or enforcing international legal doctrines “correctly” or “fairly.” Many contemporary international legal doctrines are based on a neocolonial epistemology. The contemporary international legal system generates ways of thinking that advantage the global North and disadvantage the global South. In this essay, I will illustrate the neocolonialism of the legal notion of genocide by examining three aspects of the contemporary international legal system: precedent, context, and legal reasoning.

Legal Precedent: Ignoring Civilian Massacres

Contemporary international law prohibits “extreme state violence” (including genocide, crimes against humanity, and war crimes). Nonetheless, the extreme violence of settler-colonial and neocolonial states has not been prohibited or criminalized unambiguously in the contemporary international legal system. Settler-colonial states are established through extreme state violence and neocolonial states exercise their power through extreme state violence. Specifically, colonizers of previous centuries and neocolonizers of today perpetrate mass killings. For example, in previous centuries, the United States (U.S.) killed millions of indigenous peoples. More recently, the U.S. conducts a purported “war on terror” in 78 countries, killing at least 4.5 million people (mostly Muslims), and displacing 38 million people. Today, the U.S. is sponsoring Israel’s massacres in Gaza and Lebanon. The contemporary international legal system has not condemned or punished the U.S. for its past massacres or its current ones. 

In the specific case of Palestine, the contemporary international legal system facilitates extreme state violence by legitimating a settler-colonial and neocolonial state (Israel). In 1948, the UN recognized that Zionists massacred Palestinians and declared a Palestinian right to return and reparations in General Assembly Resolution 194, but did not enforce it. (In this essay, Zionism is an ideology that endorses the colonization of Palestine. Zionist colonialism is not limited to Israelis. To emphasize that neocolonial states—including the U.S., the United Kingdom, Germany, and France—support and sustain Israel, I will refer to it as the Zionist colonial state.) Despite condemning an early Zionist massacre of Palestinians, the UN recognized Zionist settler-colonial sovereignty in 1949. The number and magnitude of Zionist massacres has increased with the passage of time. In particular, Gaza has been a concentration camp subjected to massacres and collective punishment for decades. A massacre is not an exceptional event in the history of a settler-colonial state, which manifests its sovereignty by butchering indigenous peoples. The contemporary international legal system has not punished Zionists for any of their past massacres in or near Palestine.

Today, the Zionist settler-colonial state is again massacring the indigenous Palestinians—most of whom are refugees from earlier Zionist massacres. During the past year, experts estimate 335,500 civilians have been murdered, nearly two million people have been displaced, and Gaza’s infrastructure has been decimated, rendering it uninhabitable. The Zionist state’s most recent massacres are more intense—in terms of both speed and scale—than the many massacres that preceded it, but they are not aberrations. When the United Nations recognized Israel, it legitimated a settler-colonial monster that feeds on Palestinian land and Palestinian bodies.

Legal Context: Incoherence of Laws Prohibiting Civilian Massacres

The massacres, torture, and other forms of collective punishment being live streamed from Gaza show a genocide that is simultaneously acknowledged and denied using contemporary international law. Neocolonial states camouflage their extreme violence through the incoherence and indeterminacy of international legal doctrines. The contemporary international legal system creates a paradox by both permitting and repudiating massacres of civilians.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) defines genocide as requiring the “intent to destroy , in whole or in part” a group. More precisely, contemporary international law prohibits massacres of annihilation when there is a finding of both mens rea (i.e., intent) and actus reus (i.e., acting on the intent). The requirement of mens rea must be juxtaposed with two other international legal doctrines: state self-defense and prohibition of terrorism. Neocolonial states consistently allege to be acting in self-defense or in the interest of global security when they massacre civilians in the global South. (The U.S. “war on terror” exemplifies this tactic.) These neocolonial states also allege that mass civilian deaths are “mistakes” or “collateral damage.” The state’s claim of self-defense is so sacred in the contemporary international legal system that the burden of proof falls on victims of massacres to prove civilian targeting. Neocolonial states consistently murder disproportionately more civilians than non-state groups. When international law privileges the ostensible security of a settler-colonial state, it permits massacring indigenous peoples.

The Zionist state habitually denies its intent by alleging that it is acting in self-defense and falsely claiming that combatants are embedded in hospitals, schools, and other targets that result in mass civilian casualties. By blaming artificial intelligence for indiscriminate targeting, the Zionist state will find additional pretexts to deny intent to commit genocide of Palestinians. Nevertheless, the evidence indicates that the Zionist state is targeting civilians (i.e., committing state terrorism) in Gaza. 

In contrast to the genocide doctrine’s requirement of intent, contemporary international law does not require a clear finding of mens rea for terrorism. International law generally identifies terrorism as violence exercised for intimidation or coercion, with intent to cause injury. The discrepancy of imposing a strict mens rea standard for a finding of genocide and not for terrorism—even though a state’s massacre of civilians is far more destructive—reflects the international legal system’s a priori legitimation of state violence. The contemporary international legal system primarily criminalizes the targeting of civilians when the perpetrator is a non-state actor opposed to the global North. Similarly, in effect, it      criminalizes massacres of civilians when the perpetrator is a state actor opposed to the global North. The notion of genocide—like the notion of terrorism—disguises neocolonial state violence. In the contemporary international legal system, the notion of “terrorism” delegitimates anticolonial resistance and the notion of “genocide” legitimates neocolonial state violence as “not intended to annihilate people” (i.e., “not genocide”). Comparing the prohibition of genocide with other contemporary international legal doctrines indicates that the system criminalizes status (particularly non-state or global South figures), rather than actions. Because they are tools of neocolonial power, the legal notions of terrorism and genocide are overall more detrimental than helpful to colonized peoples.

Even if the International Court of Justice were to determine that the Zionist settler-colonial state is intentionally committing genocide, the punishment would be trivial. Article IV of the Convention declares, “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Contemporary international law punishes individuals, but not sovereign states. In the case of a settler-colonial state, potential punishment of specific public figures or soldiers is woefully inadequate. Surveys show that nearly 90% of Israelis believe that the Zionist settler-colonial state’s massacres are justified and a large majority oppose permitting humanitarian aid into Gaza. Potential indictments by international courts of specific Israeli leaders will not prevent future massacres because Zionists endorse and rationalize mass civilian deaths. Moreover, settler-colonial and neocolonial states employ extreme violence against civilian populations, but international law does not punish these states.  Probably the only punishment that could potentially deter civilian massacres is the loss of state recognition in the international legal system. (By way of example, the General Assembly’s suspension of South Africa in 1974 arguably contributed to the eventual dismantling of apartheid.) So long as the UN recognizes the Zionist settler-colonial state, the UN is complicit in its massacres. 

Legal Reasoning: Neocolonial Violence As “Not Genocide”

Contemporary international law constructs the notion of genocide to prohibit certain types of massacres, in a system in which neocolonial power delineates which civilian massacres will be permitted or prohibited. Consequently, although contemporary international law prohibits and criminalizes a notion of genocide, it simultaneously facilitates extreme settler- and neo-colonial state violence. 

The notion of genocide is based on a false distinction between apolitical violence and political violence. (A parallel, deceptive division differentiates hate speech (i.e., apolitical speech) from political speech.) Article II of the Convention defines genocide as requiring the “intent to destroy” a group because of their “nationality, ethnicity, race, or religion.” Accordingly, it must be proven that the Zionist state intends to annihilate Palestinians in Gaza because they are Palestinian and not for any other reason. This evidentiary standard is unreasonable and reflects neocolonial logics. Zionist governance uses a regime of differential treatment for different groups of Palestinians; in turn, this apartheid regime protects the settler-colonial state from international legal criminalization. That is, some Zionists allege that Israel is not committing genocide because it is not currently committing massacres of Palestinians in Israel’s open-air prisons (the West Bank) or mass detention area (‘48 Palestine)—although they are being subjected to assassinations, pogroms, torture, and imprisonment. International criminal liability of states should not rest on the identification of a group as a national, ethnic, racial, or religious group because this identification is itself part of a colonial epistemology. Neocolonial states strategically use these modern, Eurocentric categories to shroud neocolonialism, not to protect oppressed groups. Palestinians are being massacred because they are colonized—not because they are a specific nation, ethnicity, race, or religion. If the objective of international law were to prevent, stop, or punish massacres of civilians, then international criminal liability of states would be based on consequences, not on intent. The evidence of Gaza’s devastation should be sufficient proof of intent to annihilate the colonized Palestinians in Gaza. 

In addition, the Convention functions as a form of neocolonial disorientation because the notion of genocide is unnecessary: international laws of war already prohibit massacring civilians. Article 48 of the Geneva Convention’s Additional Protocol I requires all parties to distinguish between civilians and combatants. Article 50 defines a civilian as persons who are not members of armed forces, militias, and those who openly use arms to resist an invading force. Article 50 also declares, “In case of doubt whether a person is a civilian, that person shall be considered a civilian.” In addition, Protocol I delineates a target verification rule, requiring parties to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” In contrast to the Geneva Protocols, the Convention (against genocide) generates confusion and diversion about the legal legitimacy of civilian massacres. The Convention was not intended to prohibit massacres of civilians in general or to deal with a settler-colonial state’s violence against the indigenous population. Indeed, there are no laws in the contemporary international legal system that adequately protect colonized peoples from colonial violence. 

The international legal prohibition of genocide is an obstacle to criminalizing colonial state massacres. The legal notion of genocide rests on a purported difference between political violence and apolitical (or hate-based) violence and that illusionary distinction is a form of epistemic neocolonialism. Settler-colonialism is a declaration of war against a civilian population. The notion of genocide—like the notion of terrorism—disguises neocolonial state violence.

Decolonial Approaches to Civilian Massacres 

Thus far, I have shown that the contemporary international legal system’s precedents, doctrinal context, and legal reasoning create a conundrum surrounding civilian massacres. This legal analysis demonstrates that international legal notions are embedded in a neocolonial epistemology that protects neocolonial states and their violence. Consequently, decolonizing the contemporary international legal system necessitates much more than increased roles for global South states. To begin challenging the neocolonial power of the contemporary international legal system, we should look for epistemological alternatives in precolonial history and in the experiences of colonized peoples. For instance, prohibitions against massacring civilians were prevalent in some premodern legal traditions, such that the contemporary international legal system does not provide new legal protection. International law’s invention of a new legal notion (such as genocide) does not necessarily result in more legal protections of civilians. Instead, contemporary international law introduces a new legal perplexity through the notion of genocide. Given that modern states and their weapons are the most powerful in human history, misleading international legal doctrines have lethal consequences. 

To decolonize—or replace—the neocolonial epistemology of contemporary international law, we must look outside the narrow confines of the contemporary international legal system. Epistemic decolonization necessitates decentering neocolonial positionality. Victims of the ongoing Zionist colonial massacres may illuminate alternatives to the neocolonial logics of contemporary international law. Muṣṭafá al-Najjār, a Palestinian recently martyred in Gaza, left a last testament, observing, “There is another way of describing our situation other than defeat, insofar as we decided that we will not die before trying to live.” Since many Palestinians experience life under the Zionist settler-colonial state as an incremental, endless massacre, they experience martyrdom as a form of liberation (rather than death). Zionist settler- and neo-colonialism engages in perpetual warfare against Palestinians.

The keys to decolonizing contemporary international law are in the hands of the children in Palestine and Lebanon who are experiencing these ferocious and sadistic massacres. Merely punishing the perpetrators of civilian massacres will not assuage them. Their witnessing makes obvious what we will witness in the future: the children of Palestine and Lebanon—who witness up close the horrors that traumatize us from afar—will seek justice. Fueled by these brazen, gruesome massacres, one can only imagine the intensity of their opposition to Zionist settler- and neo-colonialism. These children will not forget and they will demand what all colonized peoples demand: liberation, return, and land. We are witnesses not only to massacres, but also to a potential decolonization of the neocolonial epistemology that underlies the contemporary international legal system.