Seeing comments on the Gaza crisis, it was impossible not to notice several misconceptions surrounding the topic. Those misinterpretations seem to result from the passiveness of the international community and vast disregard to international law. Debunking the misconceptions uncovers the weaknesses of the international law enforcement.

United Nations are indifferent to Israel’s actions.

The lack of decisive actions from the UN may suggest that the organization is not against Israel's choices.

However, General Assembly has issued number of resolutions concerning Israel over past several years. The resolutions have focused on various aspects of Israel’s actions in Palestine, from nuclear armament to calling for cease of US funding of the state. In 2020, General Assembly condemned Israel 17 times, three times more than it condemned the rest of the world.

Why then don’t we see any actions taken by the UN?
General Assembly’s resolutions are not binding, their meaning is merely symbolical. Of course, they are still valuable as they may impact relations between the states but do not in fact conduct any legal charge.

The organ that could make those resolutions binding is the Security Council. However, the structure of the SC prevents it from acting. To pass any decision, Art.27(3) of the UN Charter requires unanimous vote by the permanent members (that is China, France, USA, UK and Russia). Almost every resolution concerning Israel has been vetoed by the United States. Among the 43 vetoes used by the US up to 2017, the state blocked the resolution calling Israel to withdraw from all Palestinian territory in 1976, refused recognition of “inalienable rights of the Palestinian people” in 1980, voted against putting an end to the war against Gaza both in 2004 and 2006. Actually, since 1970 the US has casted their veto the most among the permanent members, most frequently using it against resolutions detrimental to Israel.

In 2016, under Obama’s presidency, US abstained from voting on Israeli settlements. That allowed to pass the first resolution condemning Israel in forty years. Yet, Trump’s administration has gone back to vetoing. It does not seem that we will see a change from Biden as his administration blocked resolution calling for ceasefire in Gaza again.

However, when the US issued a resolution condemning Hamas’s violence in Gaza, it did not gain support from other Security Council members – three members voted against it, eleven abstained. Although that might suggest that the US is isolated in its support for Israel, it is enough to block any firm action.

Israel is acting legally

Over the course of the "conflict", there has been many discussions on the legality of Israel's actions. The fact that there is no binding judgement in this case creates an image that Israel is acting accordingly to international law.

The closest the ICJ got to a judgement on Israel is the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory issued on the General Assembly’s request. The opinion specifically discusses building a wall in East Jerusalem separating Israeli people from Palestinians. The Court found that Israel’s actions could constitute a de facto annexation. Moreover, the Court found Israel’s actions in breach of human rights, international and humanitarian law, relying on several conventions, including Hague Regulations 1907 and the Fourth Geneva Convention.
Already the language of the Court indicates that the ICJ recognizes Israeli occupation over Palestine.

The ICJ  called Israel to halt the construction of the Wall, deconstruct the sections already built, and to make reparations for damage caused. Yet, as the advisory opinions are not binding, Israel maintained its impunity, failing to provide any reparations.

So why won't Israel face the International Court of Justice in a binding form?
Even though Israel is a member of the UN, this does not mean that automatically its case qualifies before the Court.  The state must make a declaration recognizing the Court's jurisdiction in this particular situation. And this is unlikely to happen.

Israel’s actions have also been brought to the wide attention by a number of NGOs. Most recently Human Rights Watch recognized that Israeli government’s policies and practices are in breach of humanitarian and international law. The intention to maintain the domination of Israelis over Palestinians coupled with systemic oppression and inhumane acts committed against Palestinians occurring together amount to the crime of apartheid (that is within the realm of crimes against humanity).

It is important to note that Hamas has also been condemned by the Human Rights Watch for targeting civilians, consequently breaching humanitarian law and committing war crimes.

In April 2020, the International Criminal Court set an investigation on possible crimes in the occupied territories. Although the ICC allowed the two states to conduct their own investigations, Israel refused cooperation. As the state is not a member of the ICC, Israel claims that the Court has no jurisdiction over the them while Palestine does not constitute a sovereign state so cannot be a member. The ICC however decided to conduct the investigation without Israel’s involvement.

Israel is merely defending itself

The claim that Israel’s actions are justified as they are done as a form of self-defence is probably the most popular argument both in media and on the international arena. Although it could be argued that it is not meant in international law sense, it provides Israel with a sense of a supreme motive in the public eye.

The argument was actually considered in the aforementioned Advisory Opinion. In their justification, Israeli officials claimed that they are building the wall as an act of self-defence against "the terrorist organizations operating in Palestine". The Court found that Israel cannot rely on Art. 51 of the UN Charter as the Article allows self-defense only against acts attributable to a state. Self-defence provoked by acts of military organisations have not yet been clearly established in international law so it could not be a ground of Israel’s defence. Furthermore, Israel does not recognize Palestine as a state and hence does not claim self-defence on state-state bases.

The opinion is translatable to the present situation. The issue here could lie in the double government situation. Yet, although Hamas proclaims itself a legitimate government, Israel still does not recognize Palestine as a State.

Even if this factor was ruled out, similarly to regular criminal law, also in conflicts between the states, self-defence must be proportional. It means that the response to an armed attack must be reflective of the scope, nature and gravity of the attack itself. Considering, the casualties, damage and the weapons with which each State operates, it could be difficult for Israel to prove that their response was indeed proportional.

It has been recognized that Israel has the right to protect its citizens, even from internal organizations. Nevertheless, it must follow humanitarian law and maintain proportionality of their actions.

Palestine is not a legitimate state

Under the principle of self-determination, Palestine is deemed a de jure state. Moreover, it is recognized by 138 other States.  Since 2012, it is also a non-member observer State of the UN General Assembly. The states that have not recognized Palestine, among others, are USA, Canada, Australia and the UK.

Is de jure state status enough to proclaim Palestine legitimate state?
Yes. The de jure means that the government is legally recognized. However, it also means that the legitimate government does not have control over its land as it also is in this case. Hence, as a de jure state not recognized by some key powers in the world, Palestine does not have the same status as Israel, making it more difficult to obtain any form of support.

The case of Israel and Palestine showcases all the weaknesses of the UN structure and public international law itself. Dependent on consent and good faith, it may prove almost impossible to enforce, even when it is consistently broken. If the UN remains in its present form, we might witness more conflicts with no repercussions.

Sources:

BBC, (2021), "Israel 'will not cooperate' with ICC war crimes investigation"

Draft Articles on the International Responsibility of States, Art. 33

Human Rights Watch, (2021), "A Threshold Crossed. Israeli Authorities and the Crimes of Apartheid and Persecution"

International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, Art. 25

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ GL No 131

Middle East Eye Staff, (2017),"The 43 times US has used veto power against UN resolutions on Israel", Middle East Eye

Nicaragua v United States 1986 I.C.J. 14

Rick Gladstone, (2018), "US vetoes UN resolution on Gaza, fails to win second vote on its own measure" New York Times

Security Council Report, (2020), "The Veto" in Security Council Working Methods

Times of Israel Staff, (2020), "UN condemned Israel 17 times in 2020, versus 6 for the rest of the world combined", Times of Israel

UN Charter