Dr Chile Eboe-Osuji

ENDING THE CYCLE OF VIOLENCE

In the concept note shared with participants of this conference, the conveners observe that the atrocities that have characterised the Israeli-Palestinian conflict “are not consequences simply of individual malice or deviance. They are rooted in political ideologies that dehumanise the opponents. In Israel/Palestine atrocity has become the norm of politics. It suggests, a deep malaise in political tendencies in Israel and amongst Palestinians. This fundamental crisis of humanism must be addressed as a condition for meaningful engagement in the region. Interrupting and ending the cycle of atrocities in Israel/Palestine is thus a bold, subversive, and radical endeavour.” [Emphasis added.]

I take my point of departure from that last sentence: “Interrupting and ending the cycle of atrocities in Israel/Palestine is thus a bold, subversive, and radical endeavour.”

Here, my focus is what to do to ‘interrupt’ that perennial cycle of violence that has prevailed for well over 100 years. I’m less invested in the characterisation of the needed effort. Political scientists may see that interruption as ‘bold’ or ‘radical’. As an international lawyer, I don’t see it that way. It is not necessary to agonise over the term ‘subversive’ for what it may connote to the average mind; my sense of the term as used in context has the positive orientation of altering or contradicting the existing order. In this case, that existing order is one of hate and violence − the product of mutual dehumanisation − that characterises what the world has come to see of the relationship between Israelis and Palestinians.

International lawyers do not see the interruption of that vicious cycle of violence as ‘bold’ or ‘radical’ or ‘subversive’ − the peaceful coexistence of human beings is precisely the intended order of things. What is truly extraordinary is that a cycle of violence has prevailed for so long that return to the proper order is seen as ‘subversive’ and ‘bold’ and ‘radical’.

Emblematic of that dystopian condition is an order in which Hamas militants consider that the only viable way to end the Israeli occupation of Palestine is through the extra-legal resort to spectacular violence deliberately inflicted even against civilians − apparently unconcerned about the high incidents of death and destruction to their own civilian kin as the usual repercussions. So, too, is the exponentially more spectacular retaliatory violence that the Israeli government would deploy against Palestinian civilians, on the ostensible basis that such conduct would punish, deter or destroy Hamas. I pause here to note that that is material that the Israeli Prime Minister invoked the Amalek reminder, which inflected a people’s anxieties during the Middle Ages and according to the Old Testament of the Bible though not the New. There was no defensible excuse for that reference in the 21st century. The implicated mentality was further complicated by the fact that responsible Israeli officials and influential citizens cited the bombings of Hiroshima, Nagasaki and Dresden as models of operable conduct that should guide legally permissible conduct in the 21st century − ignoring the fact that international law was significantly reformed after World War II to outlaw the kinds of violence witnessed during that war (including the bombings in particular).

THE ROLE OF INTERNATIONAL COURTS

Moving forward, what is required for Israelis and Palestinians is to find their way back to the normal order of the rule of law amongst nations. That normal order includes a return to the dictates of international law which, since 1928 (through the Kellogg-Briand Pact) and 1945 (through the UN Charter), have required states to settle their disputes through peaceful means. Those peaceful means range from negotiations to adjudication of the particular conflict. The point is that as long as there is a dispute, the acceptable way to resolve it is through those peaceful means − except when the imperatives of self-defence are demonstrable (more on self-defence later) or the UN Security Council has authorised the deployment of armed force.  

As long as adjudication remains a method of peaceful settlement of disputes, it is seriously mistaken to reproach any state that seizes an international court with a dispute involving a question of international law. Do the conducts of Hamas or the Israeli Defence Forces in Gaza amount to genocide? Do they amount to war crimes? Crimes against humanity? Do they amount to self-defence?

These are all legal questions; precisely the sort of questions that international law say must be resolved by peaceful means − not use of force. We must recall here the entirely sensible words of Salmon O Levinson written in 1918: “trial before an international court must not be an alternative to war; it must be made a substantial and complete substitute for war.”

In that sense, South Africa was perfectly right to seize the ICJ with the question of the lawfulness of the behaviour that the world was witnessing in Gaza. The only criticism to speak of in that regard − and that criticism does not negate the correctness of the litigation − is that South Africa should also have impleaded Hamas in that litigation. That is to say, South Africa should have included Hamas as respondents in the case, alongside Israel. In the same way that Karim Khan did.

Perhaps, the reactions from some quarters against Mr Khan’s application for arrest warrants against the leaders of the war efforts on both sides may throw some light on why South Africa might have been shy to do the same thing with its ICJ litigation. The protest about ‘false equivalence’ between a democratic government and a ‘terrorist’ organisation is nonsensical as a matter of law. Odious things have been done by human beings in the name of mandate they thought they were − or were indeed − given by their people. International law proscribes certain conduct; the imperatives of accountability for the conduct pay no heed to the political badge of culprits.

The more interesting legal question concerns the extent to which South Africa might have been impressed by the widely held mistaken view that Hamas is a non-state actor whose behaviour falls outside the proper purview of an ICJ judicial inquiry. Hamas became a Palestinian state actor when it came into power in Gaza. It is the agency of government in the enclave. To that extent, its conduct will attract international legal responsibility of the State of Palestine, as a matter of international law. That being the case, the State of Palestine can be made a nominal respondent in ICJ proceedings − in that way, the processes of the ICJ will reach Hamas as a matter of law.

SELF-DEFENCE 

As indicated earlier, international law compels parties to disputes of whatever kind to resolve them by peaceful means − including adjudication if necessary − rather than by use of force. The only exceptions are when the UN Security Council authorises use of force or when the imperatives of self-defence are clearly engaged as contemplated in article 51 of the UN Charter. Whether or not the UN Security Council has granted authorisation for use of force in a particular case will be a self-evident fact. Self-defence, for its part, is not defined in the UN Charter. But, that doesn’t mean that international law is without guidance in that regard. The operative definition of self-defence remains as enunciated in the Caroline incident in 1842. The test is not always available to every state that has invoked it as justification for use of force. Essentially, the test requires that the party pleading it must have been confronted with an overwhelming emergency, which generated a necessity that left the state in question with no choice of means and no moment for deliberation than to use force to repel the initial violence. Even so, what was done in self-defence must be proportionate. 

In my own mind, the emergency that Israel faced on 7 October 2023, when Hamas militants were inside Israel and carrying out their attack, should fully validate the claim of self-defence − on that day. I do not accept that the manner of the Israeli military’s use of force in the days following 7 October 2023 could possibly pass muster of self-defence properly appreciated as a matter of law. 

THE ROOTS OF DEHUMANISATION

In conclusion, it may be observed that, as a psychological matter, ending the cycle of violence in the Israeli-Palestinian relationship will require a fundamental shift in the order of social psychology of mutual dehumanisation that makes it difficult for either side to see themselves in the circumstances of the other group.

We may begin with what many consider the ‘original sin’, which has refracted the Arab perception of Jews as a people deserving of a homeland of their own in Palestine. That ‘original sin’ was that Israelis are settler-colonisers of a land in which they are aliens. But, there are two fundamental problems that confront that thesis: (a) it ignores the fact that Jews had a historical claim to a homeland in Palestine, as a general proposition. They were truly not interloping strangers who had set out to occupy a place in the same way that the May Flower pilgrims or Spanish Conquistadors had set out to occupy the Americas, or as Europeans had set out to colonise South Africa, Namibia, Zimbabwe, Kenya and elsewhere that they have not left. Indeed, when Yousef al-Khalidi (the Mayor of Jerusalem) famously wrote to Theodor Herzl in 1899, urging a reconsideration of the idea of return of Jews to Palestine, Al-Khalidi never argued that Jews had no claim to Palestine as their homeland. As he observed in part: 

“Qui peut contester les droits des Juifs sur la Palestine ? Mon Dieu, historiquement c’est bien Votre pays ! Et quel spectacle merveilleux ça serait si les Juifs, si doués, étaient de nouveau reconstitués en une nation indépendante, respectée, heureuse, pouvant rendre à la pauvre humanité des services dans le domaine moral comme autrefois !”

“Who can dispute the rights of the Jews to Palestine? My God, historically it is Your country! And what a marvellous spectacle it would be if the Jews, so gifted, were once again reconstituted as an independent nation, respected, happy, able to render services to poor humanity in the moral domain as in the past!”

There is enough of a contradiction in that admission to unsettle the charge of settler-colonialism levelled against Israelis. But that consideration is compounded by a certain indifference to the plight of Jews who have endured centuries of persecution while in diaspora − culminating in the Holocaust. I’m thus not persuaded by the settler-colonialism charge. That said, the question of Palestinian co-existence in the same homeland is not a matter entirely for Israel to decide, by reason of either their own historical claim to the same geographic region or their history of cruel persecution that they had endured in Europe. What is more, the related refrain of ‘existential threat’ does not justify the behaviour the world has witnessed as the plight of Palestinians in the hands of Israelis from 1948 until now. It is true that anti-Israeli state use of force by surrounding Arab nations did pose an existential threat for the new state of Israel from 1948 to 1973. At that time, no Arab nation was willing, let alone prepared, to recognise the right of Israel to exist. But, the period just before 7 October 2023 entailed a different reality: Egypt had made peace with Israel. So had Jordan, Morocco, UAE and Sudan. Saudi Arabia was in negotiations to do the same. The Palestinian Liberation Organisation had already recognised the right of Israel to exist as a state. Without a doubt, other states of the region would have followed suit. That chain of developments makes it difficult to continue to hold down Palestinian self-determination as a function of the anxiety about an exist existential threat.