Israel’s military campaign in Gaza has killed over 26,000 Palestinians and displaced over 1.9 million since October; those who have survived are at risk of starvation and rampant disease, according to the United Nations. This level of destruction has caused many to ask why international law has been unable to restrain Israel and protect the lives of the Palestinians. According to Beckett, associate professor of law at the American University in Cairo, this failure of international law is because the United Nations was built to enable Israel, not constrain it. 

“The formation of Israel was the last formal settler-colonial project in international law, thus, it enjoys protection from international law,” says Beckett.

He points to the preamble of the United Nations, which promises “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. Yet, it was this same organization that facilitated the creation of the state of Israel, an explicitly colonial state that denied the equal rights of the native Palestinians.

 According to Beckett, this contradiction from the UN can be understood through the long and troubled history of its predecessors in international governance, beginning with the brutal European subjugation of the New World, through the failed League of Nations after World War I, and finally to the creation of the UN after World War II. 

The Spanish conquistadors, who came to the Americas in the late 15th century, wanted to enslave the indigenous population without the fear of eternal damnation. “International law was formed as a solution to that paradox: how do you do horrible things and still get into heaven?” says Beckett. “What the Spaniards decided, as the basis of our current international law, is that Native Americans were inferior to Europeans and could only overcome this deficiency through conversion.”

As time progressed, the motivations to rationalize the subjugation of native peoples became less religious and more political. Scholars of liberalism in the 17th century, like John Locke, suggested that native people were deficient because they did not take full advantage of their land. 

“Locke argued that God gave the earth to everyone but only those who work to improve the earth deserve ownership rights over the land,” explains Beckett. “If a people aren’t improving a land, then the land will be given to the more industrious.”

Founded in England, test-ran in Ireland, then exported to the Americas and India, this idea of ‘lazy natives’ was used across the globe to dispossess indigenous people of their legal right to their own land. Belgium used it during its brutal treatment of the Congo, as did the Netherlands in Indonesia, South Africa, and New Guinea. France resorted to it in Algeria, as did Germany in Rwanda, and so on. “Every major writer on international law from the time employed some version of this rhetoric,” Beckett says.

He tracks the story of colonialism through the 19th century as the Europeans began expansion into Africa, carrying with them the rhetoric of the White Man’s Burden—the belief that white men have a moral duty to civilize the world. This grand plan came to a grinding halt with the outbreak of the Great War in 1914, ushering in a very unusual moment for Europe’s legal history.

“The end of World War One was the first time that a war had been declared unlawful in European history,” explains Beckett. “Before that, states had the right to use force in their national interests as they wished. But this time, the losers were punished.”

To the Victors …

What does “punishment” look like? The German, Ottoman, and Austro-Hungarian empires were stripped of their territories and colonies, which were then turned into mandates to be divided between Britain and France.

Beckett explains that the mandates perpetuated this long-standing belief in the inherent deficiencies of natives, now sold and justified under the name “self-determination”. According to this framework, the natives were incapable of self-governance and needed to be tutored and controlled by Britain and France in order to attain self-determination. 

This is where Palestine enters the story, a former territory of the Ottoman Empire now being claimed by several international forces due to a convoluted British plot after World War One. In the midst of the war, the British produced three documents, each of which promised the land of Palestine to a different group. 

“The first was the exchange of letters called the McMahon-Hussein Correspondence, in which the British promised the Palestinians self-governance if they rebelled against the Ottomans during World War One,” explains Beckett. “At the same time, the British were devising the Sykes-Picot agreement, which would split the Ottoman Empire, including Palestine, between the British and French after the war. The third document was the Balfour Declaration, where the British government indicated its support for a Jewish homeland in Palestine.”

At the conclusion of the war in 1918, three empires had fallen and two—the French and the British—were now bulging with new territories. With such rapid expansion, how were they to fulfill (or rescind) the many promises they had made during the war? Enter the League of Nations, the now-defunct predecessor to the United Nations, which was responsible for the initial stages of Zionist expansion into Palestine.

“The League of Nations was an openly colonial project,” says Beckett. “During the 1920s and 30s, Britain heavily encouraged Zionist immigration to Palestine. The idea was simple: European Jews would establish a settler community in the name of civilization. This would give the British a reason to stay in Palestine, now as the protectors of the self-determination of the Jewish-European community.” 

The beginning of the Second World War would usher in a new era of international dynamics. “World War Two was a war between the British Empire and Germany, with the goal of preserving the British Empire while the United States and the U.S.S.R were beginning their own imperial projects,” Beckett states. 

The United Nations was formed out of the ashes of the failed League of Nations and the former’s self-contradictions are woven intricately into its foundation. Beckett points to the preamble of the UN Charter, which passionately defends the inherent dignity and equality of all men in the wake of two devastating world wars. It was written, in large part, by Jan Smuts, who is known for introducing apartheid into South African law during his tenure as prime minister, and for being a staunch supporter of establishing the State of Israel in the land of Palestine. Equality, it seems, was never truly in the cards for the colonized. 

“Speaking personally,” Beckett says, “ I believe that the creation of the State of Israel was a just compensation for what happened in the Holocaust. What I disagree with was how the compensation was paid. The Jewish people who were most affected were Europeans and mostly had no interest in leaving Europe. The state could have been made out of a significant portion of Germany.”

That idea was unthinkable at the time. There were seven potential locations put forward for the State of Israel and none of them were in Europe; every option was in a colonized territory. No matter where the State of Israel would go, it would follow the colonialist system, with the help of UN Charter Chapters 11 and 12, which explain how to legally run a colony, Beckett states. 

Chapter 11, which explains the legally-acceptable way to “assume the administration of territories whose peoples have not yet attained a full measure of self-government”, was drafted as a way to allow empires like France and Britain to maintain control over their colonies and mandates in a legal manner. Israel, founded from the territory of the Palestine Mandate, was the UN’s last formal colonial project.

Is it Illegal?

Given the West’s long history of legal oppression of the Third World, Beckett suggests that the legality of Israel’s current actions may not matter. “The Israeli occupation of Palestine is a product of international law, regulated and recognized by international law. Despite the occupation, international law allows Israel to be a full member of the UN, to engage in preferential trade agreements with the European Union, and receive military aid from the United States,” explains Beckett. “We can bleat about Israel being illegal, but at the end of the day, as long as foreign multinational corporations are allowed to invest heavily there, nothing will be done.”

That has not stopped the international community from attempting to use international governance to restrain Israel. In December 2023, South Africa accused Israel of committing genocide in Gaza under the Convention on the Prevention and Punishment of Genocide in December.

Is it fair to accuse Israel of genocide? Beckett believes, yes. He reads from the convention, “‘Killing members of the group’? Check. ‘ Causing serious bodily or mental harm to members of the group’? Check. ‘Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’? Check, check, Check.”

But will the court agree with him? While it is far too early to tell if the allegations can be proven, which may take years, the court in late January did agree to take on the case and issued several provisional measures against Israel. 

These measures include the requirement to prevent the commisison of any acts considered genocide, to prevent and punish the incitement of genocide, to take immediate measures to allow humanitarian assistance, to take immediate efforts to prevent the destruction of evidence, and to submit a compliance report regarding these measures within one month. Will these requirements have any real effect?

“The provisional measures will not have a direct impact on Israel’s engagement in Gaza, especially since they did not call for a ceasefire,” Beckett states. “You can’t say ‘increase the humanitarian aid’ without saying ‘stop the bombing’.”

The court’s provisional ruling, Beckett says, basically tells Israel to follow the rules of the Convention because Israel is a party to the Convention. Israel, however, argues that they have been following the rules the whole time. As a result, it is unlikely Israel will institute any changes to the strategy it has implemented since the beginning of its campaign. Since the provisional measures offer little solace to the Palestinians, is there any hope that Israel will be found guilty of genocide in the coming court procedures?

In a podcast with the The Cairo Review of Global Affairs, Beckett explains the problem is proving intent. “The tricky legal question is whether Israel intends to be genocidal,” he states. “Israel’s argument is that they have no intention of destroying the Palestinians or the Gazans, their only intention is to destroy Hamas.” 

Israel may have a hard time proving that argument, especially when government officials have made comments that seem to indicate a desire to remove the Palestinians entirely. For instance, Knesset member Amit Halevi stated that there should be two goals for Israel’s victory, to ensure “there is no more Muslim land in the land of Israel … [and] after we make it the land of Israel, Gaza should be left as a monument, like Sodom”, referencing the town of Sodom obliterated with sulfur and fire by God in the Old Testament.

“The problem is, Israel can claim that all these individuals were not speaking for the state,” Beckett explains. “Since the court ordered Israel to punish the incitement of genocide, at most, some of these people may be convicted symbolically. Beyond that, it is very difficult to prove that the government’s official policy was genocidal.”

Even if the ICJ did find Israel guilty of violating the convention, which Beckett believes is incredibly unlikely, it would be too late to help the Gazans suffering now. He explains that the only UN body capable of initiating economic sanctions against Israel immediately would be the Security Council. However, any decision made in the Security Council can be vetoed by the United States, which has offered perpetual immunity to Israel. 

Ineffective and Unenforceable 

Meanwhile, the UN Human Rights Council is equally ineffective. “Even if there were definitive proof of human rights violations committed by Israel, nothing decided in the UN Human Rights Council would be enforceable,” says Beckett. 

There is one slight beam of light in the darkness for the legal fight against Israel’s human rights violations, but it is barely flickering. The International Crime Court, which has been investigating the situation in Palestine and Gaza, could charge any Israeli individuals who had been proven to commit a violation and issue a warrant for their arrest.

“But who would arrest them?” asks Beckett. “In theory, any state that is party to the ICC has the obligation to arrest them if the individual lands on their territory, but Israel won’t arrest their own people and the United States isn’t party to the ICC, so these people could travel freely as long as they stay out of Europe.”

There is a slight chance, according to Beckett, that the ICC will investigate the crimes of apartheid and genocide, but it’s unlikely. “It’s always worth emphasizing that the ICC has never prosecuted anyone who was not a black man,” Beckett reminds. 

Palestinians Haven’t Died Out

In a world that wishes to shake off the last reminders of colonialism, why has Palestine remained such a sticking point? According to Beckett, it’s because the Palestinians are one of few native groups that have survived this long. 

“The United States doesn’t have to maintain control over the natives because there are practically none left, same with Canada, Australia, and New Zealand,” states Beckett. “The only real difference between Israel and the rest is that the Israeli genocide of the Palestinians hasn’t worked yet.”