Palestine must be free, with the law on it side

Ahmed Abofoul

We are facing a medieval-like siege and relentless, indiscriminate bombardment. Coupled with Israeli officials’ dangerous genocidal statements, Israel’s systematic targeting of protected civilians and protected civilian infrastructure – hospitals, ambulances, UNRWA schools, bakeries, food storages, water reserves – indicates a deliberate policy of starvation used as a method of warfare. The aim is to forcibly displace people from their ancestral lands, an openly announced ethnic cleansing, and push them into the Sinai peninsula. These are war crimes and crimes against humanity.

Even to those of us who have spent our careers documenting international humanitarian crimes, the destruction is like nothing we have seen before. It has profoundly impacted Al-Haq’s work on the ground: this is the first time since founding in 1979 that we can’t cover the situation properly. Our staff have had to flee their homes, have lost family members, are living in inhumane conditions. We are humbled by their determination to document what they can during this genocide. Due to the sheer level of criminality, destruction, widespread systematic attacks against civilians and tampering with evidence, however, the sad reality is that most of these crimes cannot be properly documented – so we might never know what actually happened.

Israeli detention centres – more accurately concentration camps – are a critical human rights issue. The number of Palestinians killed in detention is unprecedented. Torture and cruel and inhuman treatment are widely reported. Evidence also shows Palestinian prisoners apparently being used as human shields, consistent with years of similar documented incidents. The West Bank is not getting the same attention, but the situation there is also extremely worrying. Air raids target Palestinians’ homes with fighter jets, Apache helicopters and drones. There are ongoing, state-backed, military-protected settler attacks against Palestinian civilians and pogroms targeting Palestinian villages and towns. Palestinians in Jerusalem also face brutality from both the Israeli police and the settlers, including provocative raids of Al Aqsa Mosque and attacks against Palestinian churches in the city.

As the UN security general stated, the current situation ‘did not happen in a vacuum’. It follows 76 years of Zionist settler colonialism and apartheid imposed on the Palestinian people; 57 years of Israel’s longest-in-modern history, illegal, belligerent military occupation of the Palestinian territory. It is the result of Israel’s 17 years of suffocating blockade on Gaza, one of the most densely populated areas in the world – 365 square kilometres, home to 2.3 million Palestinians, half of whom are children. Over 70 per cent of them are refugees or descendants of refugees ethnically cleansed from their ancestral land by Zionist militias during the 1948 Nakba. Another Nakba is unfolding before our eyes. The failure of some states to stop sending arms to Israel is scandalous.

Ahmed Abofoul

They have the right to resist the occupation in accordance with the rules of international law and international humanitarian law – which governs the conduct of armed conflicts and hostilities and explicitly extends to any non-state actor engaged in armed conflict. As people under foreign occupation, they have that right. It is not an unlimited right – it carries obligations in accordance with international humanitarian law, including provisions such as not deliberately targeting civilians.

We see a clear double standard in how these rights are applied when western states, including the United Kingdom, rightly support and encourage Ukrainian people’s right to resist the Russian occupation but then label any Palestinian act of resistance as terrorism. This is an age-old tactic used to justify and perpetuate colonialism. We saw it in Margaret Thatcher’s infamous comments describing the African National Congress as ‘terrorists’ or in contexts like Ireland or Algeria.

Israel names any form of resistance taken by Palestinians an act of terrorism. Diplomatic efforts like the Palestinian Authority’s efforts to obtain full membership at the UN were called ‘pure diplomatic terrorism’. Peaceful Boycott, Divestment, Sanctions (BDS) efforts are ‘a new form’ of economic terrorism. Efforts to engage international agreements and mechanisms is ‘legal terrorism’ – and those who do such work are called ‘terrorists in suits’. Perhaps, for Israel, even conducting this interview with you is intellectual terrorism.

Ahmed Abofoul

The International Court of Justice (ICJ) deals with inter-state litigation and provides advisory opinions on specific legal questions upon request from UN members. South Africa brought a case to the ICJ under the Genocide Convention. The ICJ made three provisional orders determining Israel’s violation of the Palestinian people’s rights under the convention to be ‘plausible’. The measures that concern the conduct of hostilities have been brazenly ignored and violated. The ICJ ruled in July 2024 that the Palestinian territories constitute a single unit and that Israel’s 1967 occupation and its apartheid regime are illegal, ordering Israel to cease settlement activities and evacuate all settlers. Israel has been instructed to end its occupation as rapidly as possible and pay reparations to the Palestinian people. A previous case, from 2004, ruled the apartheid wall built through occupied Palestinian land in the West Bank and the regime associated with it (including settlements) was illegal.

The International Criminal Court (ICC) deals with individual criminal responsibility, with jurisdiction on four types of crimes: genocide, aggression, crimes against humanity and war crimes. Where a state shows an unwillingness or inability to investigate and bring justice to perpetrators of these crimes, the ICC – provided it has jurisdiction – can step in. Palestine is a state party to the ICC, so the court has jurisdiction over crimes committed in Palestine regardless of the nationality of the perpetrator – as well as over crimes committed by Palestinian citizens, regardless of where they are committed.

Palestine’s journey seeking justice at the ICC has been a long one. While the court has held jurisdiction over Palestine since 2015, it was only in May 2024 that the ICC prosecutor announced that he had applied for arrest warrants for Yoav Gallant, the Israeli defence minister, and Benjamin Netanyahu, the Israeli prime minister – as well as for as three Hamas leaders.

Ahmed Abofoul

International law emerged after the two world wars to ensure that states do not resort to force to solve international disputes – and that atrocity does not go unpunished. It is a tool that must be utilised by any liberation movement in their struggle. The current situation, however, makes it very difficult for us to convince people on the ground of its usefulness.

I grew up in Gaza. I always believed that the era of using the armed struggle to achieve liberation and decolonisation had passed; that we had to speak a language that the world understands and that was the language of international law. With peers in Gaza, I advocated for international law for three connected reasons.

First, because there is no symmetry between the Palestinians and Israel, one of the most heavily armed states in the world. Second, because with the murderous settler-colonial ideology, Zionism, and its record of bloodshed and genocide, that route would have catastrophic consequences for the Palestinian people. Third, because Palestinians, like any people resisting settlercolonialism, would be labelled terrorists.

I built a career in law and started working at Al-Haq. In 2021, the Israeli defence minister designated six Palestinian human rights groups as terrorist organisations, including Al-Haq, a baseless accusation aimed at silencing Palestinian voices. Israel’s recourse to such tyrannical measures reflected its failure to conceal its apartheid regime and to substantively challenge our work.

After the designation, many Palestinian friends and contacts said: ‘See, even with your legal methods, with your suits and case files, you are still called a terrorist by Israel. So what is the point?’ This is a result of western policy towards Israel. It pushes Palestinians towards a dangerous conclusion that there is no hope for them to use ‘peaceful’ or ‘legal’ means. It pushes Palestinians to believe that to achieve anything, you must use violence or armed struggle.

The solution to this, in my view, is to apply international law. There needs to be external pressure from the international community on Israel to end its occupation and apartheid. They must send the message to Israel that the Palestinians are not colonial subjects but free people who are entitled to the same human rights as citizens of any other state – beginning with their rights to self-determination and return.