By Marjorie Cohn
The Palestinians have a lawful right under international law to resist Israel’s occupation of their lands, including through armed struggle. In 1983, the UN General Assembly reaffirmed “the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle.”
Israel claims that it has the right to self-defense against Palestinian attacks. In his October 7 statement, Biden said Israel has a right of self-defense.
But under international law, Israel, an occupying force, does not have the right to use military force in self-defense against people under its occupation.
Targeting civilians and civilian objects constitute war crimes under the Fourth Geneva Convention and the Rome Statute for the International Criminal Court, whether committed by Israel or by the Palestinians. The presence of noncivilians within civilian populations does not deprive the population of its civilian character under Additional Protocol I to the Geneva Convention.
On October 9, Palestinian resistance forces claimed to have captured at least 130 Israeli troops and citizens, and are holding them hostage to exchange for Palestinian prisoners. Hamas has threatened to kill a civilian hostage each time Israel bombs Palestinian civilians in their homes without warning. The taking of hostages is considered a war crime under the Fourth Geneva Convention.
Even if some of the actions taken by the Palestinians in their resistance are illegal under international humanitarian law, there is no legal justification for Israel to claim it is acting in self-defense under the UN Charter.
Collective Punishment and Using Starvation as a Weapon Are War Crimes
Gaza is one of the most densely populated areas in the world. Often called the largest open-air prison on Earth, the Gaza Strip is home to more than 2 million Palestinians in this 365-square-kilometer area. Israel controls Gaza’s land, air and maritime borders.
Israel’s Minister for the Advancement of the Status of Women May Golan said at a meeting of the Israeli government, “All of Gaza’s infrastructures must be destroyed to its foundation and their electricity cut off immediately. The war is not against Hamas but against the state of Gaza.”
Israel has imposed a “complete siege” on the Gaza Strip. Israeli Defense Minister Yoav Gallant declared, “No electricity, no food, no water, no gas — it’s all closed,” adding that “we are fighting animals and are acting accordingly.”
Using starvation as a weapon of war constitutes a war crime under Additional Protocol I to the Geneva Convention. Gallant’s order is a crime against humanity under the Rome Statute. It is also a call for genocide, prohibited by the Genocide Convention and the Rome Statute, since many Gazans will die as a result of the siege.
The Fourth Geneva Convention prohibits the punishment of people in an occupied territory for offenses they didn’t personally commit. Israel’s reprisals against civilians for actions they did not take constitutes collective punishment, which amounts to a war crime.
Earlier this year, the International People’s Tribunal on U.S. Imperialism, for which I served as a juror, examined 15 countries in the Global South to assess the impact of economic coercive measures on the lives of their people. In May, we heard testimony from witnesses in Gaza as Israeli bombs were dropping on their neighborhoods. The tribunal concluded that Israel’s siege in the Gaza Strip is a form of warfare used as “an integral tool of imperialist aggression designed to facilitate the theft of global south wealth and uphold racial hierarchy.” The siege on Gaza is “just as deadly” as other forms of warfare, the tribunal found.
Root Cause of Hamas Attack Was “Cruelty of a Half-Century of Abusive Occupation”
“Although the Hamas attack included war crimes against innocent civilians, its root cause was the cruelty of a half-century of abusive occupation by Israel that violated the most basic human rights of the Palestinian people, and relied on apartheid practices of governance, according to reports by the leading human rights organizations in the U.S. and Israel,” Richard Falk, former UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, told Truthout.
Falk attributes the timing of Hamas’s attack to “the extremism of the Netanyahu coalition government” that “provoked resistance by its complicity with settler violence and violations of the Al-Aqsa Mosque Compound, and by erasing Palestine from its official maps of the Middle East and negotiating a normalization agreement with Saudi Arabia.” Falk called the Hamas attack “a shrill reminder to Israel and the world that ‘we Palestinians are still here and will not be erased and forgotten.’”
In an October 8 statement, Palestinian human rights organizations cited “compelling evidence” that the Israeli authorities had committed war crimes and crimes against humanity against Gaza’s civilian population, including illegal indiscriminate and disproportionate attacks. They urged the international community, including the UN Security Council, to take immediate action to stop Israel’s revenge and reprisal against Gazan civilians, including the imposition of sanctions and an arms embargo on Israel. They also called on the International Criminal Court (ICC) to expedite its pending investigation into the situation in Palestine as promised in December 2022. The ICC launched an investigation in 2021 of possible war crimes and crimes against humanity committed by both Israel and the Palestinians, but the probe has stalled due to pressure from the U.S. government.
The Security Council, which has an obligation under the UN Charter to restore international peace and security, has done nothing to stop the carnage because its permanent members cannot agree on a course of action. While the U.S. demanded a blanket condemnation of Hamas’s actions, Russia and China refused to agree to the unilateral denunciation of Hamas; they favored calling for an immediate ceasefire and the beginning of a peace process that has been frozen for years.
“The bloodshed of today and the past 75 years traces back directly to U.S. complicity in the oppression and horror caused by Israel’s military occupation,” Jewish Voice for Peace said in an October 7 statement titled “The Root of Violence is Oppression.” Jewish Voice for Peace blamed the U.S. government which “consistently enables Israeli violence and bears blame for this moment. The unchecked military funding, diplomatic cover, and billions of dollars of private money flowing from the U.S. enables and empowers Israel’s apartheid regime.” Moreover, Jewish Voice for Peace noted, “Those who continue calling for ‘ironclad’ U.S. support for the Israeli military are only paving the path to more violence.”
Jewish Voice for Peace demanded “that the U.S. government immediately take steps to withdraw military funding to Israel and to hold the Israeli government accountable for its gross violations of human rights and war crimes against Palestinians.”
U.S. congressmembers Rashida Tlaib (D-Michigan) and Cori Bush (D-Missouri) have called for an end to the U.S. government’s unconditional financial support of Israel’s military occupation and apartheid government. The United States has been providing Israel with $3.8 billion a year in military assistance.
While Western countries and their media decry the loss of Israeli lives, they don’t express similar outrage at the deaths of Palestinians. This hypocrisy is racist and ignores the context of decades of settler colonialism and Israeli apartheid.
We must pressure the U.S. government to call for an immediate ceasefire and stop sending weapons to Israel. “There is no military solution here,” Phyllis Bennis, a fellow at the Institute for Policy Studies, told my cohost Heidi Boghosian and me on Law and Disorder radio.
The consequences of allowing Israel to continue and escalate its aggression against the Palestinian people are unimaginable.
~ Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. She is founding dean of the People’s Academy of International Law and the U.S. representative to the continental advisory council of the Association of American Jurists.
