On Palestine, international law ‘closer to power than justice,’ former U.N. Special Rapporteur says 

Law professor and U.N. expert Michael Lynk speaks about Israeli impunity, the role of the International Criminal Court, and the difficult path to accountability in Gaza.
Cover Image for On Palestine, international law ‘closer to power than justice,’ former U.N. Special Rapporteur says 

Palestinian children play in a poor neighborhood in Beit Lahia in the northern Gaza Strip, on September 9, 2022.

Majdi Fathi/NurPhoto via Reuters Connect

Just three days after Hamas’s fateful attack on southern Israel in October last year, Israel’s Minister of Defense Yoav Gallant had spelled out his government’s response in unequivocal terms: “Gaza won’t return to what it was before. We will eliminate everything.” 

Since Israel’s siege began, experts have sounded the alarm over the proportionality of its response. As a constant stream of virulent rhetoric pours from Israel’s political leadership, with one member of the Knesset calling for “force, force and more force,” the Israel Defense Forces has turned these words into action.

In the nearly six months since, Israel’s systematic campaign of aerial bombardment and its ground invasion of Gaza has killed close to 30,000 Palestinians to date. Early this year, Oxfam International reported that the daily death toll in Gaza was higher than any other major 21st century conflict, with 250 Palestinians being killed each day. At this rate, Israel had exacted the cost of Israeli lives lost in Hamas’s attack — an estimated 1,200 — within the first week of its military assault on Gaza. 

Despite overwhelming evidence, Israel has not faced any real pressure from its international allies to put an end to the carnage unfolding in Gaza. Again and again, the U.S. has vetoed U.N. Security Council resolutions calling for a sustained ceasefire, instead supporting a temporary ceasefire. 

Is international law merely a political ploy in the hands of power? Can international law hold perpetrators to account? Analyst News spoke with former U.N. Special Rapporteur Michael Lynk. An associate professor of law at the University of Western Ontario in Canada, he served from 2016 until 2022 as Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967. 

The political challenge to the law remains the greatest hurdle to the law’s efficacy, Lynk tells Analyst News. While it is championed as one of the only tools to ensure international accountability, he says, when it comes to Palestine, we see a clear case of “the law for thee but not for me.” This interview has been edited for length and clarity.

From the perspective of international humanitarian law, how would you characterize the catastrophe unfolding in Gaza?

Let’s first remember something about international law. International law really is the highest expression of humanity’s moral compass at any particular time. It’s the codification that is meant to govern our behavior towards one another, and meant to govern the behaviour of states towards one another and towards their own citizens.

That’s international law at its very highest. Alas, international law doesn’t have the police or the army or the courts that a domestic legal system would have, and therefore it is largely meant as a guide, as opposed to an imperative.

International law only works well when it is married with international initiative. Law and politics at the international level are always closely intertwined, and what that means is trying to ensure that the gap between the promise of international law and the performance of international law is as narrow as possible. When it comes to the issue of Palestine over the past more than 75 years, this is probably the area of law where, on the one hand, there have been more resolutions, more pronouncements on international law and more written about with respect to the application of international law than any other human rights crisis in the world over that period of time. And yet, when it comes to Palestine, international law is much closer to power than it is to justice.

We can see the proclamations of hypocrisy that have been made particularly coming from the Global South towards the Global North in general, and the United States in particular, with respect to what they choose to enforce or proclaim, as relevant international law. It’s a case of the law for thee but not for me.

We have been in an enormous deficit when it comes to trying to moderate or govern Israel’s behavior in compliance with international law.

So, turning more closely to Israel and Palestine. We have been in an enormous deficit when it comes to trying to moderate or govern Israel’s behavior in compliance with international law — starting with the right to return that was adopted in the United Nations General Assembly Resolution 194 to issues over the illegality of annexation, the illegality of collective punishment, the illegality of the denial of self determination, the denial of enforcement by the police and the absolute prohibition on civilian settlements in occupied territory.

Forgotten throughout this discussion since Oct. 7 is that this is not the first assault on Gaza. This is rarely mentioned in terms of context in the West. On three of those assaults – in 2009, in 2014 and after the Great March of Return in 2018, the U.N. Human Rights Council created and commissioned independent international commissions of inquiry to examine whether the laws of war and occupation and international humanitarian law had been breached by both sides. 

The first two reports, the Goldstone Report in 2009 and the Davis Report in 2015 found that there had been likely violations of international law and war crimes committed by both sides. Moreover, in its report in 2019, the commission had reasonable grounds to believe that the unarmed demonstrators were shot and killed or shot and maimed in violation of their right to life, and on the principle of distinction under international humanitarian law. Yet all three reports, as well as the report commissioned by the Human Rights Council with respect to the legality of settlements, went down the international memory hole. It is as if we are starting from zero again. All three reports also pointed out that there was a prevailing culture of impunity enjoyed by both Israel and Hamas. 

There is international law as proclaimed frequently and consistently and accurately, but it has been ignored throughout this. The most that we see coming from leaders in the Global North is a plea for Israel to obey the laws of war and humanitarian law and human rights law. None of them, with the honorable exception of a few such as Ireland, Belgium and Spain, have said that Israel is actually breaching international law in its conduct of the war.

The Israeli Supreme Court has in the past stated that the Israeli military has the discretion to decide what is proportional, notwithstanding rules of international humanitarian law. We seem to circle back to the political hurdle and political rallying appears to favor one view: Might is right. How do we break this gridlock? 

We’ve created the genesis of accountability through the International Criminal Court (ICC). There are all kinds of weaknesses with respect to the ICC. But the promise of the Rome Statute and the ICC is that it will end or curb this culture of impunity and this lack of accountability by holding legally accountable those who commit war crimes, crimes against humanity, crimes of aggression and genocide. 

The weakness of the court, I believe, is that in the 21 years of its existence, it has prosecuted and convicted exactly five war criminals, all of them from Africa, and has largely ignored crimes committed by the Global North. In its operations, and more specifically, when it comes to Palestine, it has shown an extraordinary lethargy. Palestine acceded to the membership of the ICC in January 2015 and began to file allegations of war crimes, and although there were numerous filings of evidence and allegations since then, it wasn’t until February of 2021 that the pre-trial chamber determined that the ICC has jurisdiction over the Occupied Palestinian Territory (OPT). 

The chief prosecutor then, Madame Bensouda, in March 2021 said that she was not going to open up a formal investigation to conclude that there was sufficient evidence on the preliminary investigation with respect to allegations of war crimes. She was succeeded later that year by Karim Khan and although he has paid visits to the region including Israel and the OPT, there have been significant questions raised as to his interest and attention to this particular file.

One of the tests I would use in examining the role of the ICC prosecutor’s office is that it is so self-evident that the Israeli settlements are war crimes under the Rome Statute. The language in the Rome Statute is exceptionally clear. One would have thought one could issue arrest warrants and proceed to trial on this issue, even as one was gathering other evidence. And yet, nothing has happened on this particular allegation with respect to war crimes. 

When the prosecutor has spoken with respect to the settlement enterprise, he has focused on the idea of arresting violent settlers, which is the theme we are now hearing from several European countries and from the United States. This, I must say, is below the lowest common denominators. We only have violent settlers because we have a permissive army. And we have a government which sees the settlement enterprise as the largest single economic and social enterprise in the history of the country. So the issue is not violent settlers; they are only symptoms. The issue is the settlement enterprise itself. 

With respect to accountability, the ICC would normally be the address for this, but this file has moved like molasses. It is unclear to me that even when the prosecutor decides to move on with respect to issuing an arrest warrant, whether it is going to be with respect to allegations of war crimes committed in the three previous major assaults on Gaza, as well as in 2023, or it is going to be some chicken-feed allegations at the very lowest level.

There is a sense of victor’s justice here and an international court that is married to Western foreign policy. Even if the United States and Israel were to recognise the ICC’s jurisdiction, it is hard to envision Netanyahu or Bush being tried for alleged crimes in Iraq, for example. How far does this notion of victor’s justice explain what is happening to the Palestinian file?

The question is using political courage in order to exact sum cost on Israel for its serial defiance of international law. It has never tasted that. That is primarily thanks to Europe and to the United States, to a slightly lesser degree. Europe, for Israel, is the largest trading partner, with 35 to 40% of its international trade taking place with Europe, at least as of a couple of years ago. 

Europe, through the EU remains very divided in its approach towards Israel. Therefore, at the end of the day, you are looking meekly to the United States for leadership on the Israel-Palestine file. In his very eloquent memoirs, Kofi Annan, the former U.N. Secretary General, said that on the question of Israel and Palestine, the U.N. Security Council has been in a perpetual state of paralysis, and that is largely because the United States is so possessive of the file. 

The incumbent U.S. Ambassador to the United Nations, Linda Thomas Greenfield, said in one of the debates in the last few months that while she welcomes the leadership of the Security Council on many issues, sometimes on the file of Israel-Palestine, it is better that it stays on the sideline and allow the United States to be able to manage this file – which is obviously a clear signal of the file as ours.

What would you like to see happen now? 

A ceasefire. This is the overwhelming popular and diplomatic opinion with respect to this crisis, which should then lead to a genuine attempt to enforce international law, enable the Palestinian right of self determination and come up with a formula that allows Israelis and Palestinians to live in equality, democracy with an adherence to international law. 

A two-state solution would have to be a genuine two-state solution, or it could be some confederation. But it has to be in compliance with international law. Anything else would be a mockery of law and a mockery of self determination. 

Ayesha Malik is a staff writer at Analyst News.