Philosophy, Law, and the Palestinian Question: The Fragility of Justice in Genocide Prevention

Part 1 - The Crossroads between International Law and Western Philosophy

The aftermath of destruction in Gaza, layered with the colours of Palestinian resistance — a stark visual of what international silence enables."

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Abstract

This essay aims to discuss the ongoing use of force in Gaza by Israel following October 7th 2023 where Palestinian resistance troops penetrated the colonial borders with force, from the vantage points of International Law and Philosophy. Two mechanisms will be utilised to provide an insight into this incident: the Just War Theory and the crime of Genocide. The overarching argument presented is that the framework of genocide works accurately as a theoretical mechanism, but the barrier which prevents it from being practically effective is a post colonial consciousness which is enmeshed within the International Legal System due to philosophical reasons. It will be argued that an alternative is required where the current system suffers from a Bystander Syndrome through inaction, particularly in genocide prevention. Therefore, in order for radical resolution, a Leviathan is required which acts as an independent, politically different mechanism to establish justice through the Rule of Law.

This essay utilises an empirical and historical methodology, using real time and historical evidence to prove the premises postulated. This research is unique and important because it offers an insight into a major world event from the remits of both Philosophy and International Law which has not been effectively done before, especially given the current climate in Gaza. As such, it serves to expose a major flaw in the International System and a possible alternative.

Contents Page:

• 1.1 Introduction.

• 1.2 The Dark History of Western Philosophy.

• 1.3 Within the Remnants: International Law and Palestine.

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1.1 Introduction:

This essay will discuss the international mechanisms designed to respond to the use of force, and whether such mechanisms are consistently applied. This is especially relevant in the current climate, given the situation unfolding in Palestine, more specifically in the Gaza Strip. Since a military offensive by Palestinian armed forces on October 7th 2023, Israel has launched an unprecedented attack ranging from missiles, drone attacks and heavy artillery bombardment on the inhabitants of Gaza.1 Following this, I have been confounded by the Bystander Syndrome suffered by the collective International Community, who are armed with rhetorical gestures instead of a bona fide reaction.

Philosophy is relevant for this study because it serves to identify the root causes of any given action; dealing with the remit of thought and intent. International Law is relevant because it serves to show how such thought translates into action. This research hopes to draw the crossroads between intent and action through these two disciplines.

1.2 The Dark History of Western Philosophy:

If one were to peruse through the archives of Western philosophy, footprints of a polarity between Western civilisation and the Other would be found scattered throughout history. The terminology used to express this difference changes, but the concept remains; from the ‘Barbarian’ and the ‘Greek’ in the Hellenistic Period, to the ‘Uncivilised’ and the ‘Civilised’ in the Renaissance Period and finally the ‘Terrorist’ and the ‘Free World’ in the Contemporary Period; there is a constant distinction between the West and the Other, where the latter is deemed as inferior.2 The overarching argument to be made is that it is because of a survival of this colonial dichotomy of the Orient and the Other that we are currently faced with silence from the International Community (IC) in the case of Palestine. Two examples will suffice from key thinkers, namely Francisco De Vitoria and Immanuel Kant to portray how deep this philosophical dichotomy truly runs in Western thought.

Francisco De Vitoria’s Predicament:

Vitoria is seen as the father of global political philosophy and of international legal thought3: as such, if we were to attempt to find the dichotomy of the Orient/Other within the history of Western thought, this would be an appropriate place to begin with.

Through his revivification of Jus Gentium4 and his encounter with the ‘Indians’5, Vitoria tackles the issue of who belongs within the category of Sovereign Nations. After contemplation, he decides that whilst ‘the Indians’ may have the capacity to act as sovereigns, they are not: whilst they are ‘possessing a universal reason’, they are ultimately ‘backward, barbaric and uncivilised’ and as such ‘it is precisely whatever denotes the Indian to be different’ which results in ‘justifying war’ for the purpose of ‘effacing Indian identity and replacing it with the universal identity of the Spanish’.6 In essence, the ontological fact of being culturally different to the Orient meant that such people were uncivil. This in turn justified waging war against them, thus stripping away any autonomy that they may possess as a sovereign people.

Immanuel Kant’s Phobia

Kant took this dichotomy two steps further as the philosopher who contributed the most to the framework in which the IC currently operates. He justified going to war on the basis of the mere existence of a people who ‘lack a legal civil state’.7 The Kantian imperative of destroying those who threaten Western civilisation through their mere existence can be seen at its best as racism and at its worse; the blueprint of genocide.

Not only were those who were ‘uncivilised’ deserving of being confronted with a colonial subjugation, but they acted as a threat to civilised nations and as such war should be waged against them to neutralise the threat that comes about from their mere existence. This phobia describes the philosophical doctorhood of what genocide requires: the Dolus Specialis,8 which is the radical intent of destroying a particular group because they belong to that group. This clearly demonstrates the philosophical Otherness subjugated to other peoples through two key thinkers in Western thought.

One would hope that the formulation of the United Nations and the structure of postmodernism ensured that such a history was behind us and to judge other peoples by the metrics of their race and culture is itself a barbaric concept. Yet, this has been found not to be the case. This eurocentric bias has amounted to both positive actions and omissions which contradict the Rule of Law, even through the medium of a ‘peace making entity’9 such as the United Nations. This is most explicitly portrayed in the case of Palestine.

Palestinian ambassador to the United Nations Riyad Mansour addresses the United Nations Security Council at UN headquarters, on March 25, 2024, after a vote that passed a ceasefire resolution in Gaza during the Muslim holy month of Ramadan, its first demand to halt fighting [Craig Ruttle/AP Photo]

1.3 Within the Remnants: International Law and Palestine

In order to encapsulate the disparity between what the Law says in comparison to what it does, depending on the involved parties, an important framework that I found was coined by Dr Ardi Imseis who distinguished between the Rule By Law and Rule of Law10. The former is the practice of Realpolitik, where power makes the Law and ‘Might Makes Right’.11 The latter is the famous coinage found enshrined as a principle of Law, as popularised by Dicey in the 19th century12, designed to ensure that justice remains at the forefront of any exchanges of power.

The Rule By/Of Law distinction serves as an important portrayal of how power is used to exploit the Other. Moreover, it indicates how the civilisational imperative of peace and self determination exists only so long as the status quo of the IC, entrenched within a colonial legacy can retain its hegemonic status. Anything which jeopardises this control is to be removed even if it contradicts the Law, thus serving as Rule By Law.

In fact, Imseis conceptualised the distinction between ‘Rule By Law' and ‘Rule of Law’ based upon the way in which the United Nations regenerated the same concepts of racism with mere semantic differences.13 He argues that this is most clearly epitomised in the Palestinian struggle, which is supported by Goldberg through his concept of ‘racial Palestinianisation’14: the Barbarian and the Greek are lost in antiquity but the Hostis Humani Generis15 remains through armed resistance against colonialism.

Before delving into the relationship between the settler colonists and the indigenous people within Palestine, we must first examine the situation regarding the Law promulgated by the IC in the past, regarding Palestine. To establish a correlation between the history of the IC in Palestine and the current dilemma, such motions must be judged either as an adherence to the Rule of Law through establishing Justice and consistency or the Rule by Law through Realpolitik.

The argument that will be made is twofold: that the actions of the IC from the Balfour Declaration to the current day enforced a racial Palestinianisation, where the indigenous population of Palestine were treated as ‘Lesser’ both through legal edicts and Realpolitik. Secondly, that the Palestinians were treated with what Imseis has described as ‘legal subalternity’16 where their status as the Other has impinged their legal rights. Therefore, this history is what has led to a ‘Bystander Syndrome’17 in the current context, with no real action to prevent what may be a genocide

In regards to the history of Palestine, three clear examples of legal objects serve as a bolstering of the Other complex, insinuating a Rule By Law tactic, reinvigorating the colonial project.

A Palestinian flag flutters amid the rubble of buildings destroyed during the Israeli offensive in Rafah in southern Gaza. [Hatem Khaled/Reuters]

1. The Balfour Declaration:

The first is the Balfour Declaration itself which was issued to Lord Rothschild in 1917 serving to offer the services of the United Kingdom to establish a ‘national home for Jewish people’ in Palestine.18 This acted as Realpolitik: the declaration acted as another eurocentric exploitation of the Other, through upholding a British mandate which began in 1920, not yet creating a monotonous sovereign state where one already existed.

It seems that the Empire faced a similar predicament to Vitoria with the Indians. Should the Palestinians be included in the Jus Gentium, or the modern equivalent of the IC? The Declaration proved that they would not be included because of cultural differences which removed them from the class of sovereignty.

Arthur Balfour and the Balfour Declaration, 1917.

2. The Peel Commission:

This anthropological distinction, where peoples are designated to be collectively different which bolsters or diminishes their status in the hierarchy of States, was further demonstrated through the Peel Commission of 1936. This occurred near the end of the British Mandate and was designed to examine tensions that were boiling between the Arabs and the Jews in Palestine. Goldberg has described the report as bolstering ‘racial antagonism’19 between the two parties, where the Jews were described as ‘a highly intelligent and enterprising race backed by large financial resources’ and the Arabs were ‘a comparatively poor, indigenous community, on a different cultural level’.20

3. The United Nations’ Idea:

In 1947, the United Nations created Israel;21 an idea that was born out of the philosophical imperative that the Palestinians were the Other. As such they were lesser, uncivilised and ultimately undeserving of Statehood. This meant that Israel could be created: justified through a philosophical proclivity to imperial progress in the face of the Other who was merely there to do the bidding of the IC. If the Palestinians were to disobey and resist, they would be deemed as Hostis Humani Generis and if that were the case, the Kantian Imperative of destruction in the face of mere existence of ‘Otherness’ was justified.

However, pretences must be maintained and the Rule of Law had to be portrayed as the face of the IC, even though the idea was discreetly engineered through the Rule By Law. In order to give this action of colonial expansion a sense of legality, the United Nations General Assembly passed Resolution 181 in 1947, which ceded half of the land of Palestine to this newly founded entity named Israel without any Palestinian representative.22 It has been postulated that the Resolution was ‘a continued international rule by law inherited’ from the past and as such, ‘helped reify Palestine’s international legal subalternity in the newly formed UN system’.23

Moreover, within the Travaux Preparatoires24 of Resolution 181, the United Nations Special Committee on Palestine (UNSCOP) had certain members who seemed to ‘shed all pretence of impartiality.’ An example of this was the Guatemalan representative whose statement to the General Assembly was described as ‘racist and colonial’ stating that ‘the intransigent attitude of their leaders is the only obstacle to the attainment of liberty’.25 Liberty for whom? Certainly not for the Palestinians who were to be displaced from their homes as half of their country were to be conquered.

Yet the most blatant contradiction to democracy and the Rule of Law was shown through the repercussions of this idea. Could democratic rights be bestowed upon all citizens, where the newly founded Israel would have most of its constituents belonging to the subaltern Palestinian community? Further, how would the significant legal issue of the contradicting international principles (of Israeli sovereignty and Palestinian self determination) be balanced? This issue was attempted to be resolved by the first Prime Minister of Israel, Gurion, who suggested that there is an ‘overriding right’ of Israeli hegemony in the region: Palestinian democratic abilities and the right to self determination could only ever be considered when ‘Jews are in the majority’.26

Overall, this demonstrates how in the history of International thought there was a general endorsement of the ‘Other’ as being ‘Lesser’ and as such, Realpolitik may be subjugated upon them. Just as modern International Law was constructed due to a confrontation with the colonial encounter27, the Fons Et Origo28 of Israel was a colonial project29 reflecting the power of Western hegemony as an instantiation of Rule By Law. The Palestine case acts as a particular example which epitomises the dark reality of colonialism. The legal subalternity reinforced through these examples proves why there is a Bystander Syndrome from the IC when it comes to speaking out against Israeli actions against the Palestinians both prior and post October 7th: such inaction has been embedded within the consciousness of the IC. From a philosophical perspective, Roth has described inaction as ‘complicity’ in such crimes.30 Moreover, this dichotomy does not only accommodate for a deep racism, but according to Bernasconi, ‘a culture of genocide’.31

The next section will attempt to apply this philosophical dichotomy of the Other into the case study of October 7th through the concept of Just War and the legal right for a State to resort to violence.

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Notes:

1 Amnesty International, 'You Feel Like You Are Subhuman': Israel's Genocide Against Palestinians in Gaza (5 December 2024), Section 1

2 Robert Bernasconi and Tommy L Lott (eds), The Idea of Race (Hackett Publishing Company 2000), Ch 1

3 Anthony Pagden and Jeremy Lawrance (eds), Vitoria: Political Writings (CUP 1991) (Introduction)

4 The Law of Sovereign Nations

5 In reference to the indigenous population of the Americas

6 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge University Press 2004), Ch 1

7 Robert Bernasconi, ‘Kant as an Unfamiliar Source of Racism’ (Hackett Publishing Company 2000)

8 Colin Tatz, “The Doctorhood of Genocide,” in Genocide and Human Rights (eds) (Palgrave Macmillan 2005)

9 William A Schabas, Genocide in International Law (2nd edn, CUP 2009), Introduction

10 Ardi Imseis, The United Nations and the Question of Palestine (Cambridge University Press 2023), Introduction

11 Plato, The Republic (Robin Waterfield tr, Oxford University Press 2008) bk 1, 338c

12 A V Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan 1885), Introduction

13 Imseis, Chapter 1 (N10)

14 David Theo Goldberg, Targets of Opportunity: On Racial Palestinianization (Wiley-Blackwell 2009), Introduction

15 The Enemy of all Humankind

16 Imseis, Chapter 1 (N10)

17 John K Roth (ed), Genocide and Human Rights: A Philosophical Guide (Palgrave Macmillan 2005), Chapter 21

18 Arthur James Balfour, ‘Balfour Declaration’ (Letter to Lord Rothschild, 2 November 1917)

19 Goldberg (N14), Ch 1

20 Palestine Royal Commission, Report of the Palestine Royal Commission (Cmd 5479, 1937)

21 UNGA Res 181 (II) (29 November 1947) UN Doc A/RES/181(II)

22 Ibid

23 Imseis, Chapter 7 (N10)

24 Preparatory Documents

25 Ibid

26 Ibid

27 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005), Chapter 6

28 The Point of Origin

29 Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8 Journal of Genocide Research 387

30 John K Roth (N17) Ch 1

31 Bernasconi, (N2) Ch 1