Israel-Palestine Conflict: the Narrative of War at Play

The creation of the United Nations constitutes, at least for the majority, a new world governed by peace. The global society thus agrees to make peace the status quo, at once reserving war into the perennial status of exceptionally admissible. Nevertheless, such a notion seems to not be the case when it comes to Palestine. After more than half a century of being occupied by Israel, Palestine is still under protracted armed conflict with their occupying power. Even though the Israeli Government and the United States (US) have often reiterated the need to respect the law of war, both have designated Hamas a terrorist group, a characterization which does not seem to find a firm basis in international law. The label “terrorist” marks a completely different regime of war than what is intended within international humanitarian law (IHL). Its consequences must be analyzed within “conventional war” vis-à-vis “global war on terror”. The former is governed by existing IHL or law of war while the latter is covered by a new and still unfolding regime which developed in the Second Intifada and reproduced after 9/11 onward. This article is not intended to determine whether the new narrative is valid but it will provide the development of a new narrative of war and its implication into the current conflict between Israel-Palestine.

Second Intifada: The New Narrative of War

The Second Intifada, triggered by Israeli opposition leader Ariel Shanon’s visit to Al-Aqsa had led to a massive Palestinian uprising with a more violent nature than the First Intifada. Responding to this violence, Israel changed its political and legal paradigm by shifting their approach from ‘police rules of engagement’ to the use of military force. Even so, the situation was characterized neither as an international armed conflict (IAC) nor a non-international armed conflict (NIAC). Military Advocate General (MAG) of Israel termed it as an ‘armed conflict short of war’. Once a narrative of war has been declared, the military’s privilege to kill is established. However, in Public Committee Against Torture in Israel v. Government of Israel, Israel changed their position and admitted that the conflict was an IAC. Regardless of such inconsistency, the important point is the way Israel rewrites the law of war when they insisted that terrorist groups are neither combatant, which even though may be legally targeted, retain several privileges under IHL, nor civilians that must be protected. Instead, they earned a new terminology with its peculiar character, i.e. “unlawful combatants”. This third category is comprised of members of terrorist organizations which not entitled to the rights of combatant under Third Geneva Convention and the Hague Regulations as they do not use distinctive signs and do not observe the law of war (as laid down in Article 4(A) of the Third Geneva Convention and Article 43 of Additional Protocol I). On the other side, they are not civilians either because they actively participate in the armed conflict. Therefore, Israel recognized this group as a legitimate target for attack that is without rights, where the state can arbitrarily determine who are unlawful combatants, and proceed to detain and torture them as if they have no rights under IHL.

9/11: United States’s Enhancement of Israel’s New Narrative of War

These moves of Israel were first refused by the US as international fact-finding established by President Clinton concluded that the Second Intifada was civil unrest and not war. Therefore, there needed to be an effort to distinguish between terrorism and protest. However, after 9/11, the US sent its delegations to Israel to learn how Israel developed and justified its “war on terror” policy. From this era, the US moved to exploit the loopholes and gaps within IHL (and even jus ad bellum) to modify the rules. There are three important points of US legal interpretation on IHL after 9/11 as follows:

First, relating to jus ad bellum. Jus ad bellum (right to war) is embodied in Article 51 UN Charter which upholds the states’ inherent right of individual or collective self-defense. Thus, the only condition states may resort to use of force is under this article. Nonetheless, this right must be exercised only in certain conditions. In paragraph 232 of Case Concerning Military and Paramilitary Activities in and Against Nicaragua, the Court emphasized that the exercise of individual self-defense is subject to the victim state. Hence, it can be exercised when an armed attack has already occurred. Furthermore, the Court noted that “armed attack must be understood as including the sending by or on behalf of a State of armed bands... which carry out acts of armed force against another State...”. In Case Concerning Armed Activities on the Territory of the Congo, the Court dismissed Uganda’s claim to have acted in self-defense by carrying out an attack towards the Democratic Republic of Congo (DRC) on the basis that the armed attack by ADF terrorist group could not be attributable to the DRC. Accordingly, the act of self-defense may be justified if the attack has occurred and is applied only in state-to-state relations.

On the other hand, the war on terror does not require a manifested attack by other states. Instead, its targets are non-state actors that were perceived (not always accurately) to endanger national security interests and operate in a particular place/region. Therefore, it expands the right of “self-defense” under Article 51 UN Charter in two perspectives: 1) self-defense can be carried out in preemptive/preventive manner and 2) the target of the use of force is not necessarily another state but may include non-state actors acting independently. In addition, the US interpreted the norm as conferring authority for states to use force against other states for tolerance of terrorist activity within their border which was exemplified by the Iraq War. Several scholars even moved further to establish jus ad vim (the just use of force) as the condition between jus ad bellum and jus in bello to serve as a theoretical basis in the war on terror.
Second, relating to the definition and scope of “war”. Unlike conventional wars with a determined enemy and battlefield, terrorism was characterized as a continuing and imminent threat that may be conducted sporadically, and thus the “old” rules do not apply. This vacuum of law allowed the US to accord broad executive powers authorizing violence in pursuit of self-defense or national security interest. The Authorization for the Use of Military Force (AUMF) gave the CIA the right to kill members of al-Qaeda in anticipatory self-defense virtually anywhere in the world.

Third, relating to the definition of “combatant” and its implication on parties’ obligation. As the term “unlawful combatants” stands between combatant and civilian, it blurs the distinction between the two. Moreover, there is a lack of definition of “direct participation” in IHL. Such ambiguous classification has led the administration to count all military-age males in a strike zone as combatants “unless there is explicit intelligence proving them innocent”. It is a complete reversal of IHL logic in which all individuals that do not fall within combatants category (as in Article 4 (A) of the Third Geneva Convention and Article 43 of Additional Protocol I) are categorized as civilians. In addition, it provides discretion (evading Geneva Conventions 1949) for the US to decide on the rights of unlawful combatants according to its interests. So it’s not surprising that war on terror programs such as targeted killing, extrajudicial killing, and torture are massive even until this day after four different administrations. The paradigm has not changed after all.

The Narrative of War on Terror and Its Implication into Recent Conflict

The validity of Israel's self-defense against Hamas depends on the way we frame this conflict. Is it an independence struggle against colonial domination? Or is it part of the global war on terror? While scholars have challenged the legality of Israel’s settlement and mutatis mutandis in its act of self-defense (see here), Israel keeps framing Hamas as terrorists. Accordingly, there are two implications of this:

First, the war on terror that has been started since the Second Intifada will never end. Traditionally, wars are finite. There is a clear and concise demarcation of temporal borders in war. It begins with a declaration, then followed by a concurrence of fighting and concluded with a peace treaty signing by the parties. Moreover, war is a time of exception when law and politics are directed in favor of state security. Along with this shift of focus, human rights are reduced to their minimalist form. Sometimes, violation of basic human rights, including the right to life, is permitted. Such violation is justified precisely because of the temporary nature of war. However, when it comes to the war on terror, there exists no finish point of war and consequently, the human rights abuses that are inherent in it. Terrorism is rooted in ideology and ideology will never cease to exist. As more Hamas members are killed, it incentivizes more people to join the group. Even if Hamas has been completely obliterated, other groups will emerge under the same ideology. Therefore, as admitted by the US, terrorism is conceived as a continuing and imminent threat. Under this paradigm, the war on terror will last until all Palestinians are wiped out of their territory. All Palestinian territories are Israel’s battlefield.

Second, the war on terror can be utilized as genocide towards Palestinians. As mentioned in the previous section, war on terror has been a grave violation of the principle of distinction. What is called by Israel and the US as terrorists are citizens with no distinctive sign and who blend in with innocent civilians. Consequently, Israel is targeting every Palestinian it perceives as Hamas. Furthermore, in the war on terror paradigm, the mere existence of terrorists endangers national security. Hence, someone does not need to engage in military action or carry arms openly to be counted as a terrorist. If there is sufficient intelligence (which of course, in this context, is Israel’s intelligence unit) information, everyone perceived as a terrorist may be targeted.

Conclusion

The Israel-Palestine conflict must be assessed within an objective framework. Which narrative we choose determines the validity of Israel's action towards Palestinians. However, it is important to scrutinize how the new narrative is controlled by Israel and the US and how it impacts the current conflict. We must not forget that the relationship between Hamas and Israel’s forces is not one of ordinary belligerents’ status. From Israel’s point of view, it is a relationship between a sovereign government and terrorist groups, placed against a war on terror background, which enables them to conduct a never-ending war and prolonged human rights abuses for the sake of national interest.

Nivia is an undergraduate student at the Faculty of Law of Universitas Gadjah Mada (UGM). She had just graduated and is currently serving as an executive editor for the student-based law journal Juris Gentium Law Review (JGLR). Her research interests cover topics such as Critical Legal Studies, International Environmental Law, International Human Rights Law, and International Criminal Law.

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