Janina Dill

You mentioned helpless civilians caught in the crossfire. One issue that characterizes this conflict—various UN and civil society organizations have highlighted this—is the rapidly increasing food insecurity of the civilian population. Eliav, can you elaborate on what you think Israel's concrete obligations regarding humanitarian relief are right now?

Janina Dill

Let us move on to the obligations of third parties in the delivery of humanitarian aid. Ardi, could you speak to the role of UNWRA in this context, its legal mandate and factual importance?

Janina Dill

What do you think is the legal situation that third states face at this moment regarding how they approach UNRWA?

Ardi Imseis

Normally, UNRWA's funding structure is voluntary, it is not based on assessed funding, states are free to give whatever they wish to give to the agency. Things, however, changed on January 26 with the provisional measures order issued by the ICJ. Once you have the finding of a plausible violation of the Genocide Convention, third states are put on notice that there may very well be a substantial risk that genocide is taking place. They must prevent it as per their standing as parties to the Convention. What does that mean in concrete terms? It does not mean what happened. I often thought it was rather odd that on January 26, the same day that the ICJ issued its provisional measures order, less than twenty-four hours later, allegations of wrongdoing by twelve staff members of UNRWA, alleged to have taken part in the heinous events of October 7, resulted in several Western states pulling their funding, the key donors of the agency.

These states are all party to the Genocide Convention. They have positive obligations to prevent, as triggered by the January 26 order, and yet they pulled the funding. This struck me as rather Orwellian, and I am glad to say that now several states have come back, the Canadians, the Japanese, and others. Just a few days ago some six hundred legal luminaries in the United Kingdom set out to make the connection between third states’ duty to prevent under the Genocide Convention and the provision by those third states of financial aid to UNRWA and its mission. It is the only tool in town to help mitigate what the ICJ suggests is a plausible genocide.

Janina Dill

I would like to zoom out to the political context and its legal relevance and go into Israel first. We have not yet spoken about the conduct of hostilities. How people evaluate Israel's actions from afar often depends on their attribution of intent and their understanding of the purpose of Israel's actions in Gaza. This is certainly true for the allegation of genocide, but it is equally true for whether you see an evacuation of civilians or a forced displacement, an unprecedented effort to warn civilians about impending attacks or a campaign terrorizing them. How should we assess intent when it comes to state action, particularly given that in Israel there are obviously different factions pulling in different directions? Eliav, can you help us understand Israel's intent and purpose in Gaza?

Eliav Lieblich

There are many fascinating doctrinal questions here about who is considered a state organ and where does the “intention” of the state lie in terms of the law of attribution, but I want to say something more general: October 7 followed a year in which the Netanyahu government tried to weaken key state institutions (the so called “legal reforms”). In my view, this government has so thoroughly undermined state institutions and decision-making structures—including military chains of command—has shown such contempt to professionalism and accountability, is acting so chaotically internally, that it is almost impossible to understand what they want to achieve beyond immediate political survival—whether in relation to the hostages, the strategic goals of the war, or the future of Gaza. Each minister has their own idea, some are completely unhinged, while Netanyahu refuses to outline or even discuss his own objectives (beyond the very generic “victory”). This is the political background, which also complicates our ability to understand what the state “wants.”

Intent plays a central role in many of the legal questions here. In targeting it can separate between harm which is tolerable under IHL and a war crime; there is of course additional “special intent” require for violations of the convention against genocide; and so on. To me one important case concerns the displacement of people from North Gaza. IHL might permit evacuation of civilians as a type of advanced warning, or in occupied territories when necessary for their safety or for imperative military considerations. Now, what separates such evacuations from the war crime of forced displacement is the intent. If it goes beyond the specific grounds recognized in IHL, it is a war crime. Now, the IDF was explicit that the evacuation was temporary and for the safety of civilians; but then we see the question of their return surfacing in media reports about negotiations on a hostage deal, as leverage to pressure their release. We do not know the full details, but you cannot have it both ways: something cannot be at the same time a legal obligation and subject to negotiation. To me, this casts doubt on your intent, at least at a certain point in time.

Janina Dill

Let us move on to the capacity of third states, specifically the United States, to influence how Israel conducts hostilities. The legal question here is what concrete obligations states have under Common Article 1 of the Geneva Conventions to ensure respect for IHL and to what extent these obligations depend on third states’ leverage over belligerents. Yesterday, for the first time, the United States did not veto a Security Council Resolution demanding a ceasefire. Vivian, should we expect a change in the position of the United States in terms of conditioning support for Israel on compliance with IHL, what do you think the United States’ legal obligations are in this context?

Vivian Salama

I think that we are seeing a change, but this change is going to happen very slowly, and let me tell you, if we were not in an election year, we would be having a different conversation. There is no question about it. I spend most of my day with politicians, and it is discouraging at the very least, if not devastating, to talk about the influence of international law in the face of politics and how limited the capacity of the rule of law is. Everyone should be held accountable, and no one is above the law, but politics is very powerful here.

Still, we are seeing a shift. We saw it at the UN Security Council yesterday though it was largely symbolic that the United States abstained from a vote which Israel felt very strongly about. Still, it said something about shifting perspectives. Are we going to start hearing the Biden administration talking about violations of international law? I do think we will at least hear them start talking about their concern, of course, a lot of people on the ground need more than concern, especially the civilians who are not getting humanitarian aid and the humanitarian aid workers being killed as they try to deliver aid.

Are we going to see conditioned aid? President Biden has already made it very clear that that is going to be minimal. The Iron Dome is not going to be touched. President Biden feels very strongly that Israel, regardless of everything that is happening, should have the ability to defend itself, and America will always support that right. We will see some minor changes, whether these affect the course of the war or force it to a stop, I do not think it is going to happen overnight.

As we get closer and closer to the election, you will start to see measures taken because, the Biden administration's reelection bid is starting to take a big hit. For the first time in over a decade, foreign policy is on the ballot, and it is because of what we are talking about right now. There are people within the administration who are advocating and pushing very strongly for a change.

Janina Dill

Various European states that transfer arms to Israel now face challenges before their domestic courts. These proceedings strengthen the legal argument that states transferring arms to Israel risk violating their obligations under international law. If that position becomes more widely accepted, is there a concern that the Biden administration, which in other armed conflicts more decidedly insists on compliance with international humanitarian law, will face an allegation of double standards?

Vivian Salama

The question of double standards has already arisen. I have even posed questions to the White House publicly about whether there is a double standard. The administration was very quick to condemn the actions of Russia in Ukraine. And you had the envoy for international law, Beth Van Schaack, out there talking about U.S. efforts to investigate and hold accountable Russia for its violations of international law. The administration is very obviously hesitant to do the same in relation to Israel. There is a different tradition and relationship with Israel.

The Biden administration says that this is different because Israel is defending itself, but this raises the question whether this conflict just began on October 7? Of course, this is the view that is being taken by the administration: Hamas launched this brutal attack and Israel is defending itself. No one is arguing that. But when you look at everything that came before and after October 7, it becomes a bit more complicated. Questions about this become more pointed. I offer some praise to my colleagues who are at the White House and the State Department with me because we have tried to hold the administration's feet to the fire. It is not always easy, but it is something that we continue to work on to see if we can get clear answers from them.

Janina Dill

Another agent holding the feet of politics to the fire are the courts. This conflict is before the courts as it unfolds. We have mentioned domestic courts, we have mentioned the ICC investigation and the contentious ICJ case, but there is also a request for an advisory opinion about the legality of Israel's prolonged occupation before the ICJ [editorial note: the panel took place before the ICJ's Advisory Opinion]. Ardi, could you shed light on what, if anything, we may learn from the Court's pronouncements, once they are rendered, for the current conflict in Gaza?

Ardi Imseis

The request for an advisory opinion asks, whether Israel's continued presence in the occupied Palestinian territory, that is the West Bank, including East Jerusalem and the Gaza Strip, is lawful some fifty-seven years on. As we know, occupation is meant to be temporary, and the occupying power can, by law, never be sovereign in that territory. However, during this fifty-seven-year period, the occupying power has been very public, open, with its intention to maintain exclusive control over the occupied Palestinian territory. Israel's actions match these expressed intentions. Eliav mentioned the debate in Israel whether Gaza was occupied before October 7. In much of the world this was not a debate. The international community as a whole asserts that Gaza remains occupied, this includes the General Assembly and every principal organ of the United Nations, the International Committee for the Red Cross, various special rapporteurs and most academics.

Why does it matter that Gaza is occupied, and whether this occupation is still lawful? Because the occupation and its status have ripple effects on the legitimacy of what is happening now. We cannot look at Israel's actions in Gaza only through the lens of the conduct of hostilities. Israel is an occupying power that covets the land on which it is fighting. Members of the Israeli cabinet speak openly about taking that land for Jewish settlement in line with what they have been doing in the occupied Palestinian territory for over a half century. The existential existence of the Palestinian population in Gaza is in play.

The Advisory Opinion has put hard questions before the Court. But unlike in the case that South Africa has brought where contested facts need to be established and the legal answer is unclear, the UN record on Israel's position in the occupied Palestinian territory and its actions over a half century make clear that Israel is violating three peremptory norms derogation from which is not permitted: first, the self-determination rights of the Palestinian people who exclusively have the right of self-determination in the whole of the occupied Palestinian territory, second, the inadmissibility of the acquisition of territory through threat or use of force and, third, the prohibition on the imposition of a regime of racial discrimination that some might say amounts to apartheid.

Janina Dill

Let us stay on the topic of the implications of court proceedings for a moment. Social scientists tell us that in most countries, when you tell ordinary people that a policy of their government violates international law, this policy becomes less popular at least to some extent. There is some evidence that this relationship between information about international law and public opinion does not fully hold in Israel. Eliav, can you tell us what you expect Israel's government, which is accountable to the public, to make of various proceedings before international courts that concern this conflict?

Eliav Lieblich

This is of course a very complex question and it is hard to foresee what will take place, but if you view international law as a process, you know that what matters is not necessarily the content of the operational parts of these decisions, but the narratives they establish. For example, in South Africa versus Israel, to me the language of the provisional measures is not as important—in terms of real-world effects—as the finding of “plausibility of rights” under the Genocide Convention, since even this provisional finding will surface in domestic courts, in public discussion, and will be used to ratchet up international pressure. I do not have empirical data regarding the effects of international law within Israel—although I am not optimistic here—but these decisions definitely loom over and have some effect, for instance, on petitions to the Israeli Supreme Court.

Janina Dill

Let us turn to jus ad bellum. Hardly any public statement about this conflict does not begin with an assertion of Israel's right of self-defense, which is politically uncontroversial but legally complicated. Ardi, could you speak to what the complications are with the argument that Israel has a right to self-defense under Article 51 of the UN Charter? If it does have such a right, what are the limits on Israel's right of self-defense? If Israel does not have a right to self-defense under Article 51, how should we think of the legal basis for the ongoing conflict?

Ardi Imseis

The place to start is paragraph 139 of the 2004 advisory opinion in the Wall case, where the court says very clearly that Israel cannot rely on Article 51 of the United Nations Charter as a justification for its erection of the wall in relation or in response to attacks that emanate from within the occupied territory, because that territory is controlled by Israel. By virtue of the fact that Israel continues and has continued uninterruptedly to occupy the Gaza Strip since 1967, the attacks that emanate from Gaza do not give rise to a right to use force in self-defense, under Article 51. This position of the court, as many of you know, attracted a great deal of criticism, particularly among Western international lawyers, so I am not oblivious to that, and we can speak about that in a moment.

According to the position of the Court Israel has a duty to maintain public order in the territory it occupies and can use force to that end. The next question is the proportionality and necessity of an occupying power's response to the events of October 7 where Palestinian paramilitaries attacked both legitimate targets, military positions and combatants, on the border of the Gaza strip but also engaged in attacking, evidently, civilian objects and civilians illegally, committing war crimes and killing some 1,100 persons and taking 250 hostage. To repel this attack, is it proportional or necessary to do what Israel has done since? Some 32,000 killed Palestinians, possibly many more if you count those buried under the rubble, 1.7 million people forcibly transferred, etc.

Even if you thought Israel had a right to resort to force under Article 51, you would still have to ask about the proportionality and necessity of defensive force and you would end up in the same place: what we are watching now is not in any way, shape, or form proportional or necessary to repel the attacks of October 7. There is not a sentient being in the land, in my respectful view, that would take that position seriously.

Janina Dill

For our assessment of the overall death toll in Gaza, the proportionality ad bellum or in bello, to what extent should we take account of the fact that Hamas is not obeying international law itself and arguably commingling deliberately with the civilian population? There is a long-standing allegation that Hamas is using human shields.

Ardi Imseis

You start from the basic proposition that reciprocity does not matter in IHL. Just because one side is violating, allegedly or truthfully, their IHL obligations does not relieve the other party of its own obligations. So let us take the claim that Hamas has embedded itself within the civilian population thereby rendering 2.3 million civilians “human shields”; this does not relieve Israel from its obligation to distinguish between civilians and civilian objects on the one hand and combatants and military objectives on the other hand. It is that simple. Is it reasonable to argue that a whole population in the most densely populated place on earth is a “human shield” and therefore killable either as collateral damage or targetable if they happen to just be unable or unwilling to leave northern Gaza? No. An attacking party has a duty to distinguish and to justify their attack bullet by bullet, bomb by bomb and you cannot just throw a blanket over the whole space and say they are all human shields.

Vivian Salama

When you talk to the administration about this question, should Israel in the conduct of the war be held to a higher standard than a terrorist organization, the answer I received, especially in the earliest weeks, is that it is a sovereign decision how Israel carries out their response to October the 7. When we think about September 11 and the emotional response, we had that led to the military response, no one could have told us to respond differently. We were going to respond with force and to show that we had the situation under control. Now six months later, we still see the civilian death toll rising and there is an occupation and a famine, so questions of this response are getting harsher. But technically the position is, we cannot stop them because it is their sovereign decision.

Janina Dill

Of course, demanding compliance with IHL does not mean holding Israel to a higher standard but holding it to the legal standard it has agreed to in virtue of its sovereignty. The flip side to the notion of holding Israel to a higher standard than Hamas is the idea of giving Israel the benefit of the doubt as a democracy. This is a very prominent argument in the European discourse that we should be confident, indeed faithful, that Israel is obeying international law while we do not even have to look that closely at Hamas to know that it is not.

I would like to turn to Eliav and think about the resort to force “on the other side,” so to speak. Given doubts about the legality of the occupation, do Palestinians have a right of resistance? Could you speak to how claims to resistance fit into the law on the resort to force which obviously was designed with states in mind, states that resort to force against other states?

Eliav Lieblich

First of all, as a point of departure, in my view the current Israeli government does not even try to hide the fact that it does not respect the right to self-determination in the occupied territories and is openly hostile to it. We can look at the current coalition's founding documents which mention “exclusive” collective rights for Jewish People including in the West Bank; we can look at the appointment of an extreme right-wing figure to be in charge of civil affairs in the West Bank including settlements; we can look at annexationist policies, settler violence, the ex post regularization of unauthorized outposts and so on, which have nothing to do with self-defense or security. The government is not even pretending anymore that the occupation is temporary.

But, on the other hand, it is also quite clear that armed groups like Hamas are not in fact fighting for the right to self-determination—it is not the discourse they are using, it is not their stated goal, it certainly is not reflected in the methods they are using, as the atrocities of October 7 reveal. When people are invoking self-defense, security considerations, or self-determination to justify this or that action, I think we should ask wait is this really what you are doing?

Now regarding resort to force in furtherance of self-determination there are two well-known areas of vagueness in jus ad bellum—one concerns resort to force by states against non-state actors whether in their own territory, in occupied territories, or in third party states; and resort to force by non-state actors against states, both internally and in self-determination contexts. If we are looking at the current war, to an extent both parties claim that jus ad bellum does not apply in terms of law (albeit for different reasons)

Now, international law recognizes that people have a right to struggle for self-determination, and that it is prohibited to suppress such struggles by force. But for clear reasons of real politik, relevant UN resolutions have been vague about whether and the extent to which such struggles can involve armed force (and this has been subject to Third World Approaches to International Law critiques), and of course the entity struggling should be a representative of the people entitled to self-determination.

The analysis can change if Palestine is a state, and then there might be a more straightforward ability to apply jus ad bellum, but we will still run into factual complexities. Now, if the ICJ rules that the occupation is unlawful as a whole that would make it very difficult legally for Israel to say that it can use self-defense to maintain its presence in the territories per se—you cannot claim self-defense if you are defending an unlawful situation. But then of course some might claim that even within an unlawful occupation, a state can defend its citizens against unlawful attacks that might not be related to the occupation as such. Also, there could be the claim that occupation is also a continuous armed attack and then the question is whether there is a right to recourse to force in such situations (there has been much debate on this question in the Nagorno Karabakh context). Existing UN Security Council resolutions add up to this complexity, and it is impossible to do justice to it here.

Janina Dill

Does it become difficult for us to defend international law in this context? In the context of this conflict, are there questions to which international law does not provide clear or adequate answers? For instance, the question of what the Palestinian people is supposed to do, does it create pressure for the progressive development of international law?

Eliav Lieblich

Well, some might say that this type of vagueness is a feature of international law as a state-centered system. In my own scholarship I have suggested that at least in some cases of sub-state violence international human rights law can provide a framework through which to analyze recourse to force. But states have been historically wary of recognizing such doctrines, to say the least.

Janina Dill

This is when international law comes under pressure, when it seems not to have an answer to urgent political questions that also have a moral force and therefore get a lot of understandable attention. Another context in which the fitness of international law sometimes comes into question is the argument of some observers—and this may be factually incorrect—that IHL does not leave Israel a way to legally conduct operations in Gaza. How should we think of this conceptually: what if international law's demands amount to the demand that an actor abandons effective self-defense or another morally urgent legal aim?

Ardi Imseis

I think IHL is fit for purpose. The question is: what is the purpose? What are the war aims of the occupying power? Are they legitimate war aims? The IHL lawyer will tell you that the only legitimate war aim is to quash the other side's ability to use force against you and that is why you have principles of distinction and proportionality. It is an improper war aim to crush the other side politically, to cleanse them politically, to end their political parties. Then we must ask well what is Hamas? It is clearly part of the Palestinian political spectrum, a political party with a paramilitary organization that many states in the West regard as terrorist. It has been governing the Gaza Strip for some time. It has doctors, it has teachers, administrators, etc. And if the war aim by the occupying power is to crush Hamas, and if that war aim is regarded as lawful, then it colors how we look at the IHL questions of proportionality, precaution, and distinction. I do think that if we maintain a fidelity to the object and purpose of IHL and the law of belligerent occupation, and impose it strictly, and without fear or favor, regardless of who is the occupying power or who is the paramilitary or the terrorist—in short, if we apply IHL fairly, universally—it would be fit for purpose.

The problem here is not just the conduct of hostilities. The occupation of the Gaza strip has lasted for over a half century. Whatever does the occupying power want with this territory? They are telling you right now, right before your very eyes, they want it all. Palestine's written statement to the international court of justice on the advisory opinion documents the evidence of Israeli leaders telling you what they are doing and doing it. I would commend all of you to read that submission closely.

Janina Dill

Vivian, would you like to come in on the question of whether international law is fit for purpose?

Vivian Salama

I mentioned earlier that it is discouraging at times to see how easily politics can subdue the power of international law. I am just a spectator who has to approach these issues from a pretty objective point of view, but it is hard to see that law has limited capacity to prevent harm, for instance the attack on the world central kitchen workers this week. Of course, God knows where we would be without law, and so I think law will always come up against political headwinds, but that is partly why the work you do is so important, so thank you all.

Janina Dill

A striking number of questions that were asked by the audience [via an iPad interface] concerned the language we used and specific word choices during this discussion, for instance, why we used the term “war” rather than “genocide,” or is the term “starvation” appropriate? This is characteristic of the legal discourse particularly around this conflict. Word choice is taken as a signal for taking sides in the conflict. Of course, legal arguments must rely on carefully chosen terms, but one of the challenges that the legal community will have to grapple with going forward, is how to step out of a discourse that centers on taking sides, on being part of one or the other camp. Instead, we must come back to what international law, what law generally, is for. That is to let the arguments speak, to focus on the strength of the claim rather than the identity of the speaker. We must put law to facts without fear or favor and live with the consequences.