Part II continues Part I’s interrogation of the contemporary international legal system.
When Does Warfare Become Genocide?
Some might insist that the UDHR and the Geneva Conventions are simply the wrong legal sources to confront the challenge of what is happening in Gaza. Since Palestinians do not have a military, some view the laws of war as unsuitable. Given that the UDHR is ignored during war and the Geneva Conventions misrepresent asymmetrical war, some believers in the promise of human rights point to the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter, the Convention on Genocide). By coining the term and concept of genocide, lawyer and law professor Raphael Lemkin contributed to the human rights movement. Signed in the ominous year of 1948, the Convention on Genocide defines genocide as violence that is “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.”
Many people view the term “genocide” as a sign of their opposition to the annihilation of civilians. The refusal to use the word “genocide” to describe what is happening in Gaza often reflects a wide-ranging stance. Those who object to the classification of genocide usually are excusing the mass murder of civilians for the “right” objective. Zionists allege that the “right” objective is self-defense. And the mass murder of civilians is, in their eyes, “collateral damage,” a constantly expanding category. To disprove the claim of self-defense and meet the Convention on Genocide’s stipulation of intent, South Africa presented to the International Court of Justice (submitted December 29, 2023) significant evidence that Israel deliberately targets and collectively punishes Palestinian civilians in Gaza. Gathering evidence to prove the obvious—what is manifest in photos and videos of large-scale destruction—reinforces the underlying conundrum in the legal definition of genocide. One day, people may look back at the Convention on Genocide and wonder why there was a struggle to prove intent, as if it were even possible for the mass killing of civilians to be unintentional. What do human rights mean if a state can drop the equivalent of multiple atomic bombs and still claim that the resulting mass civilian deaths were unintentional?
Insisting on evidence of intentionality is absurd not only in the specific incidents of civilian massacres in Gaza, but more broadly in the context of settler-colonialism. In settler-colonies, colonizers arrived not only as part of the occupying army, but also as part of the settler infrastructure designed to replace indigenous peoples. To settle—and not only dominate—colonizers murder or displace the indigenous. Intent was clear in the massacres and forced exile of Palestinians from their homes and lands in 1948. The intent to exterminate Palestinians was clear in the transformation of Gaza into a concentration camp—with forced malnutrition through restrictions on entry of goods—that long preceded the siege and massacres that began in 2023.
What do human rights mean if a state can drop the equivalent of multiple atomic bombs and still claim that the resulting mass civilian deaths were unintentional?
Under settler-colonialism, the social, strategic, and economic considerations that inspire laws of war and limit warfare effectively do not exist. Settler-colonizers often view annihilating the indigenous population as their duty. They are unconcerned with reciprocity because indigenous peoples do not have the ability to retaliate with an equivalent amount or type of violence. And the potential economic benefits of exploiting the labor of indigenous peoples is superseded by the settlers’ goal of replacing the indigenous. Settler colonialism’s extermination of indigenous peoples may be incremental (as in the West Bank) or concentrated (as in Gaza), but in all cases, the Convention on Genocide was not designed to deal with it. While the Convention on Genocide recognizes that genocide may occur during warfare or peace, it does not acknowledge or prohibit settler-colonialism, which is incremental genocide against an indigenous population. Indeed, in the case of Zionist settler-colonialism, the logic of extermination for the preservation of the state is so strong that it now applies to settlers themselves. Israel’s use of the Hannibal directive (to kill Israelis rather than allow them to be captured or ransomed) and prolonged refusal to negotiate a prisoner swap shows that the state is willing to kill its own settlers to maintain its settler-colonial domination.
Perhaps there was a book about the Convention on Genocide in the fire of lies that a Palestinian lit. Approximately one year prior to that book burning in Gaza, in February 2024, Aaron Bushnell self-immolated in front of the Israeli embassy in Washington, D.C., in protest of the atrocities in Palestine. A member of the U.S. air force, Bushnell undoubtedly saw intent in the voracious bombing of Gaza. He may have felt that his inability to intervene meant that he too had broken the promise of “never again.” In his will, he asked for his “ashes to be scattered in a free Palestine.”
Doesn’t International Law Prohibit Occupation?
With liberating Palestine in mind, some might insist that the UDHR, the Geneva Conventions, and the Convention on Genocide are inappropriate legal sources for confronting Zionist settler-colonialism. The law of occupation (based on the Hague Regulations and the Geneva Conventions) may be the most comprehensive international legal framework. The international law of occupation prohibits permanent or perpetual occupation, meaning formal or informal annexation. Yet these laws do not prohibit the initial moment of occupation, but rather the prolonging of it. This is why it was only in 2022 that a UN report found that Israel’s occupation is permanent and unlawful; the ICJ affirmed that finding in 2024—75 years after the UN recognized and legitimated the Zionist settler-colony.
Consistent with other international legal sources, the international law of occupation is based on the perspective of an occupying state, rather than occupied people. Article 42 of Section III of the 1907 Hague Convention (regulations concerning the laws and customs of war on land) defines occupied territory as territory “placed under the authority of the hostile army.” The text thus distinguishes territory from people, who are referred to as “inhabitants of territory.” Colonized peoples are not simply “inhabitants,” or people who dwell in a place; they are the people whose lives are inseparable from the land. From the perspective of the colonized person—rather than the colonial state—the international law of occupation is a sterilized and procedural disguise of the brutal reality: every Palestinian in historic Palestine is a prisoner. High-security prisons are torture centers; the medium-security prison is Gaza; the low-security prison is the West Bank; the minimum-security prison is ‘48 Palestine. And every Palestinian in historic Palestine is subjected to some form of violence: murder, torture, rape, starvation, amputation, psychological abuse, harassment, threats, and degradation. This type of continuous, comprehensive, and agonizing control over a colonized population was not prevalent—possibly not even logistically possible—when the international law of occupation was developed.
The contemporary international legal system was not intended to challenge neocolonialism, the form of colonialism that became dominant in the post-WWII era, alongside the false promise of human rights. Civilian targeting was normalized during WWII and continues under neocolonialism, which is more hidden, destructive, and pervasive than earlier forms of colonialism. Neocolonialism is the institutionalization, legalization, and mystification of earlier forms of colonialism. Contemporary international legal sources facilitate neocolonial abuse of power and devaluation of human life—all while using the jargon of human rights. The international legal system serves neocolonialism by replacing moral considerations with technocratic legal reasoning, as this essay demonstrates. Neocolonial states perpetuate their reputations by falsely claiming—like their colonial predecessors—that they abide by international law and that their anticolonial resistors (often slandered as “terrorists”) do not. The social, strategic, and economic considerations that historically shaped laws of war changed under neocolonialism.
Strategic considerations that motivated the laws of war in the past are largely irrelevant today. Neocolonial states have sophisticated technologies—unimaginable in the mid-twentieth century, when the promise of human rights was articulated—that have greatly expanded the breadth and depth of state violence. The gap between the military ability of a neocolonial state (particularly aerial bombardment) and the resistance ability of anticolonial groups is far greater than in the past. The spatial and situational distance between the neocolonial state’s killers (soldiers) and targeted victims (colonized peoples) are significantly greater than in the past. Neocolonial states have weapons of mass destruction and surveillance tools that effectively eliminate concerns about reciprocity. In the practice of neocolonial warfare, there are no civilians, only combatants and potential combatants.
The gap between the military ability of a neocolonial state (particularly aerial bombardment) and the resistance ability of anticolonial groups is far greater than in the past.
Neocolonial states obliterate the category of “civilians” because neocolonialism degrades civilian life. Instead of taxation, ransoming, or enslavement, neocolonial states and the military industrial complex aligned with them increasingly profit off testing warfare technology on civilians. While technology gradually makes many laborers redundant, the value of scarce natural resources is increasing and many people are viewed as obstacles to obtaining those resources. Human life may be less valuable today than ever before and states may be more powerful than ever before. We are witnessing scenes of this devaluation in Gaza today: children targeted by snipers and drones, mass graves of Palestinians buried alive, wild dogs feeding on decomposing corpses, and countless other horrors.
International laws of war disadvantage anticolonial resistance fighters in ways that reflect their colonial beginnings. This bias against colonized peoples is evident in the Hague Convention, as well as the Geneva Conventions and the Convention on Genocide. The international legal system’s sources are archaic and feeble. Given the enormous gap between the canonical texts of the contemporary international legal system and reality, it should not be surprising that those books were burned. In burning books for heat, the Palestinian book burner declared that the contemporary international legal system is complicit. The system that struggles to implement the promise of human rights has failed Palestinians and other neocolonized peoples repeatedly and consistently. In Jerusalem, Zionists confiscate books about human rights. In Gaza, Zionists burn books about human rights, the libraries that house them, the universities and schools that teach them, and the civilians who read them.
But What is the Alternative?
Some will insist that human rights-based approaches to violence—the Geneva Conventions, the Convention on Genocide, or the Hague Convention—are not false promises because they shape public opinion. From this standpoint, human rights-based international law is effective because it is the basis of mass mobilization across the globe. Many members of the public appreciate the symbolic role of the international legal system. For them, the International Court of Justice’s genocide trial against Israel and the International Criminal Court’s arrest warrants for Israeli leaders offer concrete indications of wrongdoing. Protestors rely on the discursive power of human rights to justify their demonstrations, marches, and other activities. For global North activists involved in direct action (such as Palestine Action in the UK or dock workers in the U.S. and Canada), international law provides justification for their efforts to intervene. As a rallying cry and a demand for justice, the promise of human rights—and the international laws built around them—serves a remarkable social-psychological role. This is why Zionists in the U.S. and Germany are punishing students for acting upon what they read in books about human rights. It is why the UK government arrested more than one thousand disabled and elderly people for holding signs supporting Palestine Action and condemning the siege of Gaza. It is why Israel took participants in the freedom flotillas hostage and treated them brutally. Zionists recognize that the promise of human rights has discursive power.
As with any form of power, there are advantages and disadvantages to wielding it. The discursive power of human rights is not only a defensive tool, but also an offensive tool. The human rights industry, as Alfred de Zayas explains, uses the promise of human rights to dominate and exploit, including through “humanitarian interventions.” Since the establishment of the human rights-based international order, the U.S. has used its economic and military power to torment the global South under the guise of enforcing human rights or protecting global security. With its dizzying complex of sanctions, hundreds of military bases, routine practice of regime change, and widespread indoctrination campaigns, the U.S. is the most destructive neocolonial state today. For example, the U.S.-led “war on terror”—conducted to “protect” security and human rights—has directly and indirectly led to the killing of approximately 5 million civilians. Similarly, U.S.-led sanctions (economic war crimes) result in approximately half a million deaths annually. The massacres and destruction in Gaza today are intensifications of earlier U.S. practices, conducted by the U.S.’s largest overseas military base and settler-colony (Israel). The U.S. military’s precedent of expanding the categories of combatant and collateral damage is being applied against Palestinians in Gaza.
The promise of human rights is not only a tool for defending people, but also a tool for oppressing them. Some critical defenders of the promise of human rights refer to it as a tool that should be used alongside other tools. It may not even occur to them that it is the wrong tool or that it is a tool that causes more damage than repair. As this essay indicates, the Geneva Conventions ignore that colonized peoples are systematically dehumanized; the Convention on Genocide disregards that settler-colonialism intends to eliminate indigenous peoples; the Hague Convention overlooks that neocolonized peoples are captives. The human rights-based international legal system does not create social, strategic, or economic incentives that could limit state violence. Moreover, the international legal system has a state bias that directly disadvantages neocolonized peoples. The contemporary international legal system—faulty from its very beginning—is a woefully antiquated and ineffective tool.
The promise of human rights is not only a tool for defending people, but also a tool for oppressing them.
Why do defenders of the human rights-based international legal system keep using the same tool and expecting different results? The stubborn, self-interested reluctance to let go of this tool makes many states, institutions, organizations, and people complicit. International law experts may establish careers as specialists on Palestine, but they have no right to confine Palestine and Palestinians within the neocolonial international legal system. Indeed, given that their careers are dependent on the contemporary international legal system, they have a conflict of interest and cannot judge the system accurately. By holding on to the ineffective tool of contemporary international law, too many are not identifying or creating different tools—ones that unquestionably dismantle colonialism, settler-colonialism, and neocolonialism. The contemporary international legal system is not a tool for liberation. It is a tool of distraction and pacification.
Having survived inhumane violence, the Palestinian book-burner is experiencing a harsh reality: no matter who does the interpreting, the sources of the contemporary international legal system do not articulate an unambiguous prohibition of large-scale extermination because they do not revoke the sovereignty of a settler-colonial (or neocolonial) state. While one hand writes books about human rights, the other hand points a gun at the global South. A father in Gaza not only burned books about human rights, he also burned the ostensible tool of human rights. Since the tool of human rights was not invented to liberate him, burning it may have even felt emancipating.
Replacing Burnt Books
Looking at the smoke of charred bodies and buildings in Gaza and Tehran, some commentators have suggested that the liberal international order is dead. The book burner in Gaza likely sees the situation differently: the liberal international order wasn’t alive to begin with because it was only a fairytale.
The fairytale of human rights is the silencing of other stories; it is the negation of the unsaid. What could be narrated when we look at sources other than international legal documents like the UDHR, the Geneva Conventions, the Convention on Genocide, or the Hague Convention? We should ask the Palestinian burner of human rights books what should replace those texts. He is seeing and experiencing a ruthless reality that informs him how to articulate alternatives to the contemporary international legal system. He might suggest that there is no military justification for the mass murder or starvation of civilians or destruction of civilian infrastructure. He might suggest that an international legal system that does not confront the U.S.—the state that causes the most global violence—is a system that enables brutal war crimes. He might suggest that there is no justification for the continued failure to enact the right of return and reparations of Palestinian refugees. Since Gaza is unlivable, Palestinians should immediately return to the homes and lands from which they were exiled in 1948. He might suggest that the UN General Assembly’s 1947 resolution to partition Palestine was illegitimate, a neocolonial act to divide a land that belonged to Palestinians. He might suggest that an international legal system not designed to liberate colonized people is part of their oppression.
Who is trying to implement the promise of human rights? The primary intervention in the spirit of international law’s responsibility to protect is the Yemeni attempt to stop shipments providing material support for Zionist atrocities in Gaza. In line with established practices, the U.S.—the global bully—responded by bombing Yemeni hospitals and killing Yemeni civilians. And the UN Security Council passed resolutions 2722 and 2768 condemning Yemeni attempts to implement the international legal responsibility to protect. Undeterred, the Yemenis do not base their intervention on the fairytale of human rights, but rather on a much older book. Additional support for Palestine comes from Iran, which is now being attacked by the U.S. and Israel for refusing to surrender to their neocolonialism.
The Palestinian father in Gaza, burning books for heat, might choose a replacement for the fairytale of human rights. If he tells a story to the approximately 50,000 orphans or 5,000 child amputees in Gaza, he will choose one that can inspire struggle in the context of an expected death toll of half a million. The story must be powerful enough to sustain Palestinians continuing to resist merciless settler-colonizers. Perhaps he will choose the tale of David and Goliath. And perhaps the same story will be told to children in Iran.
