Israel and US deliberately gutting international law in Gaza

Israel and US deliberately gutting international law in Gaza

Over the past six months in Gaza, Israel has killed civilians on an industrial scale, turned hospitals into strategic military targets and food into a weapon of war.

by Maureen Clare Murphy, reposted from The Electronic Intifada, 11 April 2024

Over the past six months in Gaza, Israel has killed civilians on an industrial scale, turned hospitals into strategic military targets and food into a weapon of war.

Blatantly violating basic principles of the laws of war, Israel has deployed the language of international humanitarian law as a form of “humanitarian camouflage,” in the words of independent UN expert Francesca Albanese, in the furtherance of its genocidal campaign.

In her new report titled “Anatomy of a Genocide,” Albanese says that one of her “key findings is that Israel’s executive and military leadership and soldiers have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people.”

Jus in bello refers to the conditions under which states may legitimately resort to war. It regulates the conduct of parties engaged in an armed conflict.

International humanitarian law, according to the International Committee of the Red Cross, “is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible.”

With its genocidal conduct in Gaza, as per analyst Trita Parsi, “Israel is engaged in a deliberate and systematic effort to destroy existing laws and norms around warfare.”

He added, “Israel is seeking to either destroy these norms or create a new normal in which it – much like the US – will be untouchable above these laws and norms.”

This effort was exemplified by Israel’s actions on just one day, 1 April, in Gaza and beyond.

Israel’s forces withdrew from the vicinity of Gaza’s largest and most important hospital after perpetrating what may be one of the worst massacres in Palestinian history; an Israeli attack destroyed the Iranian consulate in Damascus, killing 12, including two Iranian generals; and Israeli personnel killed seven aid workers, including nationals of some of Israel’s closest allies, in central Gaza while they were undertaking an aid mission coordinated with the military.

“Israel is crossing every possible red line, still with full impunity,” Albanese said the following day.

“Sanctions now. Indictments now,” she added.

In the absence of such accountability measures for past and ongoing rights violations, and enabled by decades of impunity, Israel’s total war on Palestinians in Gaza is also a war on the principles of international law, the impact of which will surely be profound.

Israel’s genocidal logic

Albanese’s report finds that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met.”

While arguing that “its conduct complies with international humanitarian law,” according to Albanese, Israel’s actions “have been driven by a genocidal logic integral to its settler-colonial project in Palestine, signaling a tragedy foretold.”

She explains that “settler-colonialism is a dynamic, structural process and a confluence of acts aimed at displacing and eliminating Indigenous groups, of which genocidal extermination/annihilation represents the peak.”

The genocidal logic underpinning Israel’s violence in Gaza, now at an annihilationist peak, is not new, and Israel’s past practices including persecution and discrimination lay the groundwork for the current eliminationist stage.

Israel has advanced its settler-colonial project through military occupation and various repressive measures, according to Albanese. This has involved construing “Palestinians as a ‘security threat’ to justify their oppression and ‘de-civilianization,’ namely the denial of their status as protected civilians,” she adds.

The ruins of a building destroyed in airstrikes in the al-Fakhoura area of Jabaliya, northern Gaza, 9 October 2023.
The ruins of a building destroyed in airstrikes in the al-Fakhoura area of Jabaliya, northern Gaza, 9 October 2023. (photo)

The denial of Palestinians’ status as protected civilians has reached its most extreme point in the genocide currently unfolding in Gaza, during which more than 33,000 Palestinians have been killed and thousands more are missing and presumed dead.

Israel’s siege warfare – the aim of which “is to achieve by starvation what could not be achieved by military force,” according to civil rights lawyer and writer Dylan Saba – may prove even more deadly than its weapons.

A recent Integrated Food Security Phase Classification (IPC) analysis determined that almost all of Gaza’s population of 2.3 million people were enduring extreme hunger and around half were in a situation of catastrophic food insecurity.

The international charity Oxfam says that hundreds of thousands of Palestinians in northern Gaza, where Israel is preventing the UN from delivering aid in violation of recent legally binding decisions by the Security Council and World Court, are “forced to survive on an average of 245 calories a day – less than a can of fava beans – since January.”

A quarter of Gaza’s population is at risk of death “from preventable health conditions within a year,” Albanese states in her report.

All Palestinian men considered “terrorists”

The international humanitarian law principle of distinction holds that parties to armed conflict “must at all times distinguish between civilians and combatants,” according to the International Committee of the Red Cross. “Attacks may only be directed against combatants. Attacks must not be directed against civilians.”

The obliteration of the principle of distinction is a key feature of Israel’s genocide in Gaza.

Among those who have been killed, Albanese points out, “70 percent of recorded deaths have consistently been women and children.” Israel has failed to prove that the men who constitute the remaining 30 percent “were active Hamas combatants – a necessary condition for them to be lawfully targeted.”

And yet, she writes, “by early December, Israel’s security advisors claimed the killing of ‘7,000 terrorists’ in a stage of the campaign when less than 5,000 adult males in total had been identified among the casualties, thus implying that all adult males were ‘terrorists.’”

Albanese adds that “this is indicative of an intent to indiscriminately target” Palestinian civilians, “assimilating them to active fighter status by default.”

In early April, Israel claimed that at least 12,000 “terrorists” had been killed in Gaza in the past six months.

Around the same time, the Palestinian health ministry in the territory reported that at least 33,200 Palestinians had been killed, including 14,500 children and 9,560 women, with the remaining approximate 9,650 fatalities being adult men.

Israel is considering a figure 20 percent higher than the number of adult men reported killed to be “terrorists” – suggesting that they may be considering all teenage boys as combatants by default as well.

Bodies lie on the ground in front of al-Najjar hospital in Rafah, southern Gaza, on 19 December 2023 after Israeli air strikes destroyed three residential buildings, killing journalist Adel Zoroub and at least 28 other people.
Bodies lie on the ground in front of al-Najjar hospital in Rafah, southern Gaza, on 19 December 2023 after Israeli air strikes destroyed three residential buildings, killing journalist Adel Zoroub and at least 28 other people. (photo)

A story published by the Israeli newspaper Haaretz shortly after the release of Albanese’s report illustrates what the UN expert describes as the erosion of distinction.

That article – titled “Israel Created ‘Kill Zones’ in Gaza. Anyone Who Crosses Into Them Is Shot” – says that the military currently estimates that some 9,000 of the Palestinians killed in Gaza since 7 October “are terrorists.”

That figure is doubted by commanders interviewed by the paper, who, Haaretz states, “imply that the definition of terrorist is open to a wide range of interpretation.”

“In practice, a terrorist is anyone the IDF [Israeli military] has killed in the areas in which its forces operate,” a reserve officer who served in Gaza told Haaretz.

The paper gives an example of the Israeli army announcing that it had killed and “eliminated” a “terrorist” who had fired a rocket.

But footage retrieved from a shot-down Israeli drone and broadcast by Al Jazeera showed that the “terrorist” killed in the incident trumpeted by the military was in fact four apparently unarmed men.

Two of the men were killed in the first airstrike and the survivors were hunted and killed in subsequent strikes while trying to walk away in an apparent terror-stricken daze.

Al Jazeera broadcast footage of another incident showing Israeli snipers picking off Palestinians who were attempting to retrieve air-dropped food aid near the fence along the boundary with Israel in northern Gaza:

The footage shows one of the Palestinians carrying aid being shot intermittently. Already shot at least once, he attempts to limp away from the area where the snipers were stationed. He is shot again, and attempts to crawl away, lifting his head in an apparent search for help.

The wounded Palestinian bled to death in full view of the Israeli snipers, drawing his last breath as stray dogs approached.

The unnamed Palestinians killed in Khan Younis and the north whose deaths were broadcast by Al Jazeera are among the tens of thousands whose lives have been obscured and abstracted into Gaza’s unfathomably high fatality count.

Aid workers killed “systematically”

But not all of Israel’s victims in Gaza have died anonymous deaths as part of its “clear military policy of genocidal extermination of a starving population,” as the writer and academic Nicola Perugini put it.

The Israeli military killed seven aid workers, many of them foreign nationals, in a series of strikes on what they knew to be a humanitarian mission on 1 April. Their drone-fired missiles penetrated the roofs of three World Central Kitchen convoy vehicles, the charity’s logo effectively serving as a target for lethal fire.

Jose Andres, the celebrity chef who founded the charity and enjoys close ties with Washington’s political elite, said that the convoy was targeted “systematically, car by car.”

Various non-explanations were put forward by Israel in the immediate aftermath of the attack, with Prime Minister Benjamin Netanyahu saying that the aid workers were “unintentionally struck” and that this kind of thing “happens in war.”

Unnamed defense officials told Haaretz that an armed man on a truck was in the company of the convoy before the attacks in what seemed to be a hastily made-up story.

Herzi Halevi, the Israeli military’s chief of staff, said that the “strike was not carried out with the intention of harming [World Central Kitchen] aid workers. It was a mistake that followed a misidentification – at night, during a war, in very complex conditions.”

But he gave no justification for the deadly series of strikes on what the military knew to be a humanitarian aid convoy.

Volunteers prepare a meal for Palestinians in Rafah, southern Gaza, on 23 December 2023.
Volunteers prepare a meal for Palestinians in Rafah, southern Gaza, on 23 December 2023. (photo)

A rushed military self-investigation eventually put forward various excuses: a breakdown in communications between the army units involved and mistaken identification in the first strike on the convoy (according to the probe, one of the drone operators said in retrospect that the object thought to be a weapon may have just been a bag). The second and third strikes were deemed to have violated standard operating procedures.

Jeremy Konyndyk, who served in both the Obama and Biden administrations and is now president of the charity Refugees International, said that Halevi’s statement is “an explicit acknowledgement that they violated the laws of war.”

“ ‘We didn’t realize we were killing aid workers’ is not a defense,” Konyndyk added.

Israeli military sources, meanwhile, told Haaretz that the attack on the World Central Kitchen convoy “was a result of lack of discipline on the part of commanders on the ground … according to these sources, the commanders and forces involved acted contrary to orders and instructions.”

That would appear to be contradicted by other reporting from Haaretz, which states that senior officers must approve actions against “sensitive targets, such as aid organizations.”

Charlie Herbert, a retired major general in the British military, said that “I don’t accept that the strikes were the result of a ‘lack of discipline.’”

“They were the result of systematic flaws in IDF [Israeli military] rules of engagement whereby everyone in Gaza is viewed as a legitimate target to be killed,” he added. “It’s as plain and simple as that.”

That is how Israeli troops in Gaza understand the rules of engagement, according to Barak Ravid, a journalist with close ties to Israel’s intelligence apparatus and the military.

In an interview with CNN’s Anderson Cooper, Ravid said that he spoke to a reserve officer who was in the same unit as the troops who shot and killed three Israeli nationals who had managed to escape or had been abandoned by their captors east of Gaza City in December.

That reserve officer told Ravid that the orders from the commanders on the ground are to “just shoot every man [of] fighting age,” implying a total disregard of their civilian status, as in the case of the three captives who were killed while shouting for help in Hebrew and waving a white flag.

Washington’s wilful denial of reality

World Central Kitchen suspended operations in Gaza following the deadly strikes on its convoy. Its partner Anera, also an American organization, has likewise taken the “unprecedented step” in halting its activities in the territory, where an Israeli strike killed its local coordinator Mousa Shawwa and his 6-year-old son Karim last month.

“The blatant nature of the attack on [World Central Kitchen’s] convoy has proven that aid workers are currently under attack,” Anera spokesperson Steve Fake told the AP news agency. “Our decision to resume aid relies on the safety of our staff.”

White House national security spokesperson John Kirby, one of the Israeli military’s most ardent defenders, in a wilful denial of reality, said that there was no evidence that the strike on the aid convoy was deliberate.

Kirby added, in an astonishing insult to the intelligence of anyone observing Israel’s horrific conduct in Gaza, that the US State Department has “not found any incidents where the Israelis have violated international humanitarian law.”

The testimony of those prosecuting Israel’s genocidal war in Gaza directly contradict Kirby’s patently false assertion.

The Israeli commanders interviewed by Haaretz said that troops in Gaza enforced “kill zones” in areas in which they were present, the boundaries of which “are subject to interpretation by commanders in that specific area” and not known to Palestinians whose very presence is viewed as grounds for the use of lethal force.

“As soon as people enter it, mainly adult males, orders are to shoot and kill, even if that person is unarmed,” a reserve officer told the paper.

A senior commander said that civilians were shot while trying to reach areas they thought the army had withdrawn from, as they were “perceived as people who could harm our forces.”

In other words, Israel’s ground forces have turned Gaza into a free-fire zone.

AI genocide

Israel’s airstrikes, which have obliterated countless Palestinian families in their homes, are carried out with a similarly appalling disregard for human life.

According to +972 Magazine, an Israeli publication, the military relied on an artificial intelligence program that it developed to target “as many as 37,000 Palestinians as suspected militants … for possible air strikes” in the first weeks of the war.

Human personnel rubber stamped the machine-generated targets “with no requirement to thoroughly check why the machine made those choices or to examine the raw intelligence data on which they were based,” +972 reported.

The targets generated by the AI were bombed in “homes without hesitation, as a first option,” an intelligence officer told +972: “It’s much easier to bomb a family’s home. The system is built to look for them in these situations.”

Military sources told the publication that the army preferred to use unguided missiles known as “dumb bombs” when targeting alleged junior militants, with one intelligence officer stating that “you don’t want to waste expensive bombs on unimportant people.”

Two sources told +972 that “for every junior Hamas operative” that the AI system marked, “it was permissible to kill up to 15 or 20 civilians.”

The fact that Israel’s military censors allowed for the publication of the +972 story suggests that the state may attempt to place responsibility for the wholesale slaughter of Palestinian civilians on a machine algorithm.

And that evasion of responsibility may prove effective, judging by recent comments by the UN secretary-general.

António Guterres said he was “deeply troubled” by the reports on the Israeli military’s use of AI tools “resulting in a high level of civilian casualties.”

“AI should be used as a force for good to benefit the world, not contribute to waging war on an industrial level, blurring accountability,” the UN chief added.

Why the use of AI would blur accountability is unclear, since human personnel are involved in the development, approval and use of that technology.

The +972 story describes how Israeli personnel made it a policy to strike supposed targets when they were in their homes – one of the AI systems used by the military for this purpose is called “Where’s Daddy” – thereby maximizing civilian casualties.

The focus on the technology by which Israel is wiping out entire families in their homes serves to obscure that targeting civilians and civilian objects in order to instill terror in the population has been a feature of Israel’s most recent major offensives in Gaza.

A devastated quarter of the al-Rimal area in the heart of Gaza City after Israeli strikes, 23 October 2023.
A devastated quarter of the al-Rimal area in the heart of Gaza City after Israeli strikes, 23 October 2023. (photo)

Paul Biggar, founder of Tech for Palestine, said that the use of AI “should be viewed as a systemization of genocide.”

“It creates the system by which mass murder is enabled and accomplished, and is the Auschwitz of this war,” he added.

Biggar explained that the AI programs used by Israel “serve the exact same purpose as Nazi Germany’s concentration camps: they allow Israel to kill automatically and systematically.”

Additionally, Israel’s rationale for supposedly targeting fighters in their homes – if one isn’t already convinced that maximizing civilian casualties is the true objective – is not permissible under international law.

According to Itay Epshtain, an international law expert, “Israel cannot lawfully claim targeting on the basis of [continuous combat function],” the premise upon which it is attempting to legitimize the killing of Palestinian resistance fighters not directly participating in hostilities at the time.

“Israel has automated the removal of rules governing a lawful attack, resulting in colossal harm to civilians and civilian infrastructure,” Epshtain added.

Chris Gunness, a former journalist and past spokesperson for UNRWA, the UN agency for Palestine refugees, said that the use of the AI system as revealed by the +972 article “rips up the narrative that Israel has been killing so many civilians because Hamas uses ‘human shields.’”

That propaganda point is frequently trotted out by Israel’s official and unofficial spokespersons and has even been parrotted by Guterres, the UN secretary-general.

Indiscriminate attacks always unlawful

Under international humanitarian law, civilians are protected at all times, and Israel’s use of evacuation orders and declaration of “humanitarian zones” does not negate the protected status of civilians who cannot or will not move away from combat areas.

“Indiscriminate attacks, which do not distinguish military targets from protected persons and objects, cannot be proportionate and are always unlawful,” according to Albanese, the independent UN human rights expert.

And yet Israel has distorted the terminology of international humanitarian law “to justify its systematic use of lethal violence against Palestinian civilians as a group and the extensive destruction of life-sustaining infrastructures,” Albanese writes.

“Israel has done this by deploying [international humanitarian law] concepts such as human shields, collateral damage, safe zones, evacuations and medical protection in such a permissive manner so as to gut these concepts of their normative content, subverting their protective purpose,” she adds.

Meanwhile, statements by Israeli officials “have translated into military conduct that repudiates the very notion of civilian protection.”

That rhetoric has been used not only by Israeli officials but also by its “apologists and flunkies” as part of “a concerted campaign … to erase any distinction between Palestinian civilians and combatants,” the analyst Mouin Rabbani writes.

On the ground in Gaza, according to Albanese, this “has transformed an entire national group and its inhabited space into a destroyable target, revealing an eliminationist conduct of hostilities … from which the requisite genocidal intent is the only reasonable inference to be drawn.”

Washington’s willingness to provide arms and diplomatic cover for this situation has led some, including journalist Sam Husseini, to “suspect that for parts of the US establishment, the complete destruction (or threat of that as a means of leverage) of international law may be an actual goal, not a cost” of Israel’s genocide in Gaza.

While professing to be “outraged and heartbroken” by Israel’s killing of the World Central Kitchen personnel, Biden is not changing his policy of unconditional material support for its slaughter – “a blatantly horrific and stupid mistake,” one of his senior officials told Politico.

The Biden administration is not only gutting the meaning of international law but also the admittedly flawed institutions that are meant to uphold it.

After nearly six months of genocide in Gaza, Washington finally allowed the UN Security Council to pass a resolution demanding an immediate ceasefire for the remainder of Ramadan after vetoing three previous resolutions.

But as soon as the resolution was passed, Linda Thomas-Greenfield, the US ambassador to the UN, claimed that it was non-binding.

“Despite its baselessness, her remark was surely heard in the war rooms of Tel Aviv and Jerusalem,” the Palestinian writer Samer Badawi observed.

“Hours after the vote, Palestinians in Gaza reported an uptick in Israeli military attacks, including upon the masses who have sought shelter in the Strip’s southern half,” Badawi added.

According to Phyllis Bennis, a fellow at the Institute for Policy Studies, when “Thomas-Greenfield claimed that the Council vote was ‘non-binding,’ she was setting the stage for the US government to violate the UN Charter by refusing to be bound by the resolution’s terms.”

Craig Mokhiber, a former senior UN official, said that “the US has shown itself willing to burn down the house – to tear down the entire international legal framework to defend one genocidal, apartheid state, distorting humanitarian law, abrogating the Genocide Convention and declaring Security Council resolutions ‘non-binding.’”

The Lemkin Institute for Genocide Prevention said that the Biden administration’s undermining of the Security Council’s authority “presents an unprecedented threat to the ‘rules-based international order’ of which the United States is a primary architect.”

Israel’s “refusal to allow humanitarian aid paid for by the United States into Gaza … renders them ineligible for further US security assistance under the provisions of the Humanitarian Aid Corridors Act,” the Lemkin Institute added.

“Building a pier in the Mediterranean Sea before pressuring Israel to allow in the line of trucks laden with life-saving aid at the Rafah border crossing is an expensive act of political theater that will only ensure the unnecessary and painful deaths of thousands more Palestinians.”

“Simply applying existing laws is enough,” according to the Lemkin Institute, which is named after the man who coined the term “genocide.”

In what might be the understatement of the year, Human Rights Watch and Oxfam said that Israel’s assurances that it is using US arms legally “are not credible.”

By continuing to arm Israel as it engineers a famine in Gaza, the US is disregarding its own domestic law, which prohibits the provision of military assistance to states that block humanitarian aid provided by Washington.

Humanitarian organizations operating in the territory have jointly stated that “the humanitarian response in Gaza, including US funded humanitarian assistance, has been consistently and arbitrarily denied, restricted and impeded by the Israeli authorities.”

Annelle Sheline, who recently resigned from her State Department post due to the Gaza genocide, said that her former employer’s determination that Israel was compliant with US and international law “makes a mockery of the administration’s claims to care about the law or about the fate of innocent Palestinians.”

The Biden administration will be remembered for abetting Israel’s twisting of the meaning of international law, including conventions created in the wake of the Nazi holocaust in Europe so that the industrial slaughter of human beings would never be repeated.

But the institutional complicity in the US spans beyond Washington – to the media who have for decades dehumanized Palestinians and their resistance, universities who uttered no words of condemnation for the scholasticide in Gaza, to the medical associations that have been silent over Israel’s destruction of Palestinian health infrastructure.

Palestinians rush to rescue injured people in the immediate aftermath of an Israeli airstrike on a home in Khan Yunis, southern Gaza, 7 December 2023.
Palestinians rush to rescue injured people in the immediate aftermath of an Israeli airstrike on a home in Khan Yunis, southern Gaza, 7 December 2023. (photo)

Israel must be held accountable for its crimes in Gaza, where it has been rewarded with impunity before.

Israel and complicit states must pay “reparations commensurate with the destruction, death and harm inflicted on the Palestinian people,” as Albanese states.

In the meantime, she writes, Israel must be subjected to arms embargoes and other forms of sanctions; South Africa’s genocide complaint against Israel must be supported at the World Court; violations of international law must be independently investigated and prosecuted in international courts; UNRWA must be properly funded; and the UN high commissioner for human rights must apply the Genocide Convention and “enhance its efforts to end the current atrocities in Gaza.”

Redress for Israel’s crimes in Gaza, aided and abetted by the US, Germany, UK and others, would have to address the violations of Palestinians’ individual and collective rights and the original sin of Zionist colonization of their land.

“The ongoing Nakba must be stopped and remedied once and for all,” Albanese says, referring to the genocidal expulsion of Palestinians from their homeland during the establishment of the state of Israel in 1948.

“This is an imperative owed to the victims of this highly preventable tragedy, and to future generations in that land.”

Maureen Clare Murphy is senior editor of The Electronic Intifada.


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