Unpacking Israel’s Legal Fictions

On July 3rd, Israeli drones launched airstrikes on the Jenin refugee camp in the occupied West Bank, and over 1,000 troops invaded the area. The two-day assault was the biggest military operation in the West Bank since 2002. By the time Israeli forces withdrew from the camp, soldiers had killed 12 Palestinians, injured more than 100, and forced thousands to flee from their homes. They had also attacked the camp’s infrastructure, bulldozing roads and devastating electricity, water, and sewage networks, as well as damaging cars, homes, and hospitals.

Israeli officials said the operation was necessary in order to crack down on Palestinian armed groups whose members live in the camp, and who they blame for launching more than 50 shooting attacks on Israeli targets over the past six months. Israel’s army also claimed to have seized over 1,000 weapons stored in the camp. While much of the international community—including the United States government—has followed Israel in treating the invasion as legitimate, human rights attorney Noura Erakat, author of the book Justice for Some: Law and the Question of Palestine, says the attack violated international law. Israel’s justifications, she argues, demonstrate its continued commitment to what she deems the “shrinking civilian,” narrowing the legal scope of who counts as a civilian when it comes to Palestinians. I asked Erakat about the legal reasoning Israel has used to defend the invasion, the efforts it has made to unilaterally change the laws of war, and the limits of using international law to oppose Israeli violence. This interview has been edited for clarity and length.

Alex Kane: Israeli Prime Minister Benjamin Netanyahu characterized the invasion of Jenin as an attack on “the most legitimate target on the planet, people who would annihilate our country.” The Biden administration implicitly accepted this narrative, saying that Israel has the “right to defend its people.” What does international law say about Israel’s invasion of Jenin?

Noura Erakat: I’d like to highlight the tropes that Netanyahu is playing into—racial tropes that have constructed Palestinians as terrorists. In reality, all the fighters in Jenin have are hand guns, improvised explosive devices, and Molotov cocktails. They can’t annihilate much with that.

The real issue is that Israel has no right to self-defense against the territory and the people that it occupies. According to the Fourth Geneva Convention, it has a duty and a responsibility to protect those people until the reversion to a status quo ante that preceded hostilities, meaning until sovereignty is returned to the Palestinians. Of course, Israel denies that this is applicable, because it denies that Palestinians are a people, and so they say there is no sovereign to whom to revert.

Israel also claims that this territory belongs to them. They claim that they had the right to acquire it by force, which proceeds from their claim that the 1967 War was a war of self defense. Neither of those claims are true. Israel insists that the attack that launched the 1967 War—in which it destroyed Egypt’s entire air fleet while it was still on the ground—was a preemptive strike against an inevitable attack by Egypt. In reality, Egypt was cooperating with the United States as it worked toward a mediated agreement. This was not a defensive war—but even if it was, since the adoption of the UN Charter in 1945, there has been no principle in international law that permits the acquisition of territory under any circumstances.

Israel has created and perpetuated legal fictions to deny the applicability of international law. For one, Israel says there is no occupation. It says the territory is “disputed” and applies occupation law on a de facto basis, which allows it to cherry-pick the provisions with which it complies. It has created a sui generis regime that has no analogy or precedent, and thus it neither recognizes Palestinians as part of its domestic order—which would characterize its confrontation with Palestinians as a civil war—nor acknowledges the existence of a regular war against a nascent sovereign fighting for national liberation. Instead, Israel has been creating new law to cover what it calls “armed conflict short of war.” This enables Israel to usurp Palestinians’ sovereignty, and associated policing power, while also using military force against them.

AK: UN Secretary General António Guterres criticized Israel for using what he called excessive force. In response, Israel’s ambassador to the UN said that the Israeli army took “defensive actions aimed solely at dismantling terror infrastructure.” What do you make of this diplomatic spat?

NE: It’s incredibly disappointing that the United Nations can’t speak with greater precision. Israel did use excessive force, and António Guterres could have cited specifically what that excessive force looked like.

Excessive force looks like Israel using aerial warships on a population of between 11,000 and 14,000 people in a half-square-kilometer area. That fact alone indicates that Israel doesn’t have the ability to precisely distinguish military from civilian targets. This violates the principle of distinction under international law. Israel demolished or damaged almost 80% of the buildings within the Jenin refugee camp for no reason and cut off electricity and water. In addition, it directly targeted journalists. This was a disproportionate operation that was meant to terrorize Palestinians and force them to submit.

The claim that this was about dismantling terror cells not only invokes racial tropes, as I’ve said, but belies the fact that Israel should not be in the West Bank at all, and that it’s building illegal settlements there. It also belies the fact that it’s actually the settlers—armed settlers under the protection of the military—-who have been attacking Palestinians with impunity. This year alone, settlers have launched three pogroms against Palestinians. Palestinians have no one to protect them. To the extent that young Palestinian men have picked up arms in order to defend themselves, that is not tantamount to a “terrorist infrastructure.” It is a people resisting a military occupation, settler colonialism, and an apartheid regime, which they have the legal right to do, according to Article 1(4) of the additional protocols of 1977 [to the Geneva Convention], which says that a people who are living under colonial domination, alien occupation, and a racist regime have the right to use force. This principle extends throughout the entire occupied territory: Palestinians have the right to use force against Israel and all military installations and targets to end their unjust rule. That force, of course, is not unlimited and is regulated by the principles of distinction and proportionality, as well as the other laws that regulate irregular combat.

All Israel has to do to respond to a cursory note from the UN that “this was too much” is to say, “no, they’re terrorists,” and that’s the end of the story. They don’t have to demonstrate what the threat is, they don’t have to respond to the context that they’ve created. This is a problem with international law in general and criminal law in particular. Criminal law only investigates the actual incident in question in a way that erases the context in which it emerged, so you never get to interrogate the context of settler colonialism, apartheid, and occupation.

AK: You enumerated the various harms that the civilian population in the Jenin refugee camp underwent during this two-day invasion. You’ve also written that in Israeli legal framing, Palestinians are civilians only as an exception. What did you mean by that exactly? And how do you see this legal framing at work in the invasion of Jenin?

NE: I’m referring to a number of things, among them a set of Israeli Supreme Court decisions that have evaluated Israel’s use of force, as well as a number of extrajudicial killings. These were incidents in which Israeli forces shot to kill Palestinians who they accused of launching terrorist attacks—except that it has been demonstrated that in 2016 alone, of the 97 incidents in which Israeli forces killed Palestinians, 95 out of 97 Palestinians lacked the means to carry out a lethal attack. Israel is using force in a preemptive way, and the Supreme Court has sanctioned that use of force.

In 2018, during the Gaza March of Return [a 20-month Palestinian protest movement that was violently repressed by Israeli troops, who killed 214 Palestinian demonstrators] Israel’s Supreme Court evaluated Israel’s military use of force against civilian protest. In that case, the question was whether snipers could shoot at civilians from 300 meters’ distance. The Israeli Supreme Court explicitly said that these protests were a tool of Hamas and its attacks on Israel, and that of course there were civilians among the protesters, but those civilians were only exceptions. In doing so, they negated the fact that this was a Palestinian civilian protest and overestimated the role of Hamas—which also has a civilian arm, it’s not just a militant organization. By determining that the protests were not civilian in nature, the court permitted the army to decide when it could use lethal force. They deferred to military discretion rather than limiting the force that can be used to counter civilian or peacetime unrest.

Meanwhile, during its military operations in Gaza over the past decade and a half, Israel has changed the laws of armed conflict by creating a new category of laws of war. In the laws of armed conflict, if a civilian picks up arms to fight in irregular warfare, that civilian is a direct participant in hostilities. During the time that they are carrying those arms, they become a legitimate target. However, when they set those arms down, they are no longer a legitimate target. But the Israeli Supreme Court decided in Public Committee Against Torture in Israel vs. the Government of Israel that Palestinians who pick up arms and put them down are not actually ever putting them down, they’re just resting, so they have a continuous combat function, and therefore are always legitimate targets—whether they’re carrying arms on an actual battlefield or sleeping alongside their families. Israel can target them while they sleep and kill everyone else around them.

Another way Israel has changed the laws of war has to do with military ethics, with something called “force protection.” In laws of war, the principle of proportionality balances harm incurred against the enemy alongside the military advantage achieved. The military advantage includes how many soldiers’ lives you protect and save. In that calculation, the lives of enemy civilians are worth more than the lives of your soldiers. But what Israel did in its calculation is to flip that and say that the lives of enemy civilians—Palestinians—are worth less than the lives of their soldiers who fight in battle, because it’s Hamas’s fault that they have to fight in the first place. This is part of their formal reasoning—that because Hamas started this, all casualties are Hamas’s responsibility. This allows Israel to kill more civilians and still meet the equation of proportionality.

All of these different mechanisms together add up to what I describe as the “shrinking civilian,” shrinking who counts as a civilian among Palestinians, which means that you can inflict a lot more harm. If these Palestinians don’t count as civilians, you can use a lot more force and call it proportional, even if it’s causing a tremendous amount of harm and damage. This is precisely what we saw in Jenin and what we see systematically inflicted on the Palestinians trapped in the Gaza Strip.

AK: When you say Israel changed the laws of war, what do you mean?

NE: The laws of war are composed of treaty doctrine—the Hague Regulations as well as the Geneva Conventions and their additional protocols—as well as customary law. Customary law is composed of what states think is legal and what states do. Laws of war change not just through treaty, but also through practice. If a belligerent state violates a law, often they insist that that violation is actually within the bounds of what they can do. The violation becomes a proposition for the creation of new law. Whether or not it’s accepted as a legitimate new law depends on how other states respond, and how other entities respond. If they respond in protest, they’re rejecting the proposition for the new law. But if they respond tepidly, or worse, if they begin to recreate that violation themselves, they’re basically planting the seed for the creation of new law.

Israel has been doing this since the Second Intifada, and continues to do so to this day. For example, it carries out extrajudicial assassinations of Palestinians in the West Bank that it insists are “targeted killings.” This assertion was initially rejected by all states, until the United States adopted the policy itself in its global war on terror, thereby planting a seed for this new law that allows the extrajudicial assassination of civilian or military targets off the battlefield. It’s been 20 years now, and nobody has been held to account for any extrajudicial assassinations. Israel is degrading the rules of engagement for warfare around the world. It has set in motion a trend in which other states are adopting and normalizing the same policy, making everyone less safe.

AK: International law hasn’t exactly been a deterrent for Israel. Do you think international law can be utilized to address Israel’s repeated invasions of West Bank cities and the extrajudicial killings that accompany those incursions? In other words, why are we even talking about international law?

NE: The law has done more harm to Palestinians than it has done good. Israel has used it very strategically to advance its interests, which is precisely why we’re now in the 56th year of the occupation and the 75th year of the Nakba. It’s not impossible that law can be used on behalf of Palestinians. But it requires an incredible amount of strategic thinking. Unfortunately, I do not think that is the way that the Palestinian leadership has used international law. Instead of appreciating the relationship between law and power, the Palestinian Authority places excessive faith in the law to bring about justice. For example, it has submitted claims to the International Criminal Court (ICC), but it is not engaged with political movements to build support for those arguments. Rather than using the submission to highlight the imbalance of power and the politicized nature of the ICC, it is “playing by the rules,” hopeful that justice will be served. This is a short-sighted approach in light of the fact that the ICC itself is a politicized tribunal that has enshrined European supremacy and structural inequality. It’s not just about the strength of one’s case or the facts, but about a balance of military, economic, political, and moral power that shapes how a tribunal will interpret those facts.

The short answer is, of course I think the law is useful, but it depends on how you use it. If you’re a movement attorney, as I am, you have to use the law strategically. And that requires having no fidelity to it. Use it when it’s helpful, abandon it when it’s harmful, manipulate the strengths of your adversary into weaknesses, and leverage your weaknesses in this asymmetric situation into strengths. For example, I’ve been using the law to illuminate how harmful Israel’s most recent assault on Jenin was, and how we need to upend their discourse of terrorism by highlighting that Israel has no right to self defense against these territories, period. Here, I’m using the law as a discursive tool to undermine what the Israeli adversary is trying to make us believe. They insist that they’re being attacked. Rather, Israel is systematically attacking a people that has been left defenseless by the international community.