The present era of counter-terrorism wars has severely damaged what, in hindsight, looked like a solid international consensus about which forms and levels of violence are “legal” in war and what “humanitarian” limits are imposed on such violence. The counter-terrorism paradigm of “with us or agains
The present era of counter-terrorism wars has severely damaged what, in hindsight, looked like a solid international consensus about which forms and levels of violence are “legal” in war and what “humanitarian” limits are imposed on such violence. The counter-terrorism paradigm of “with us or against us” in which the latter—and all that is proximate to it—is regarded as targetable upends the important distinction in international humanitarian law (IHL) between civilians and combatants and inflates the norm of proportionality to justify indiscriminate violence. This paradigm is the dominant strategic approach in the US “war on terror” and Israel’s “war model” approach in the Occupied Territories, as well as among regimes like Syria and Saudi Arabia. A vivid example of this paradigm at work among regimes of various stripes is the rampancy of hospital bombings in areas located amidst “against us” enemies—in Afghanistan, Gaza, Syria and Yemen. [1. Jonathan Whittall, “Treating Terrorists,” Jadaliyya, August 19, 2016.]
There is, however, a way in which regime type matters. The criterion is not the nature or amount of the violence used but rather the way in which some governments derive a sense of their own legitimacy and license to kill on the basis of the rules and norms of IHL. While the violence inflicted on Gaza in the summer of 2014 may resemble the violence being inflicted on Aleppo or Sanaa today in terms of carnage and destruction, the difference is in the intellectual labor that more “law-conscious” governments expend to frame their violence as legal. The implications of these interpretative efforts bear upon the future of humanitarianism itself.
The concept of humanitarianism emerged in the nineteenth century and is part of the history of social and political transformations that turned people into humans. This process involved the creation of a universal category—human beings—that would come to include all people. A key episode in the process was the transnational abolitionist movement to end chattel slavery in the Americas. Abolitionists were “norm entrepreneurs” because they pioneered the concept of humanitarianism, which could be defined as identifying with the suffering of strangers because of a recognition of shared humanity, and acting upon that recognition to change the conditions that cause such suffering.
The transformation of the laws and customs of war into IHL began in the late 1800s. It, too, was motivated by a politics of recognition and goal-oriented transformation, in this case the recognition of the humanity of enemies and efforts to forge new rules to balance the inevitable harms of warfare with the obligations on war-makers to refrain from causing “unnecessary” and “excessive” harm, especially to those who are not actively engaged in war—that is, civilians or enemy soldiers who have been injured or captured. The first Geneva Conventions were promulgated in the late nineteenth and early twentieth centuries to give legal force to more humanitarian rules for war. After World War II these balancing obligations were vastly expanded and elaborated with the promulgation of the four Geneva Conventions of 1949.
The four main principles of IHL are: 1) distinction—the obligation to distinguish between combatants and legitimate military targets on the one hand, and civilians and civilian objects on the other, and the related obligation to avoid purposefully attacking the latter; 2) proportionality—the obligation to use force that is proportional to the military objective or target; 3) necessity—the obligation to limit attacks to what, where and who constitute necessary and legitimate military objectives; and 4) humane treatment—the obligation to protect rather than assault civilians in militarily occupied territories as well as injured or captured enemy combatants. Consequently, while war remains legal, deliberate violations of these principles can constitute war crimes.
Given the fact that the nature of war changes, for example with the invention of new kinds of weapons or new forms of conflict, how do these norms and rules remain relevant and binding while being adaptive to changes? One very important way is the role of state practice—particularly the practice of powerful states—in promoting what is or should be legal in the context of war and armed conflict. Customary IHL, according to the International Committee of the Red Cross, “derives from ‘a general practice accepted as law’…and that the international community believes that such practice is required as a matter of law.” Another way in which IHL rules are clarified or modified is through the enforcement of international criminal law. Although this body of law has existed since the end of World War II, it only began being put into use and developed after the end of the Cold War. International criminal law pertains to war crimes, crimes against humanity, torture and genocide.
Israel deserves a certain pride of place as the preeminent “innovator” in producing interpretations of IHL that depart from well-established international consensus but are nevertheless thoroughly engaged with its rules and norms. Israeli officials have gone to great lengths to frame as legal and ethical the war-model response to the second intifada that started in 2000, the first of the current spate of counter-terrorism wars roiling the Middle East.
Because Israel is a powerful state, one question at hand is whether these Israeli state practices may become “the new custom” for wars against stateless enemies. It is indisputable that the Israeli model has been very influential upon the US “war on terror,” especially in regard to torture and targeted killing. And the Israeli-inflected US model has been influential upon other countries, including Britain, which, for example, authorized the targeted killing (conducted by US forces) of two British citizens in the multinational military campaign against ISIS in Syria.
To understand Israel’s role as an innovator, it is worth quoting the words of Daniel Reisner, who headed Israel’s International Law Division (ILD) of the Military Advocate General’s unit until 2005. Reisner offers an exceptionally frank explanation of the dynamical relationship between Israel’s violent state practice and legal interpretation. Referring to targeted killing, Reisner says: “We defended policy that is on the edge…. In that sense, ILD is a body that restrains action, but does not stop it.” [2. Yotam Feldman and Uri Blau, “Consent and Advise,” Haaretz, January 29, 2009.] He continues:
What we are seeing now is a revision of international law…. If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries…. International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later it is in the center of the bounds of legitimacy.
It is also worth recalling that the war-model paradigm for Gaza and the West Bank is inherently flawed because the territories remain occupied as Israel retains “effective control.” [3. See Shane Darcy and John Reynolds, “’Otherwise Occupied’: The Status of the Gaza Strip from the Perspective of International Law,” Journal of Conflict and Security Law 15 (2010); Noura Erakat, “No, Israel Does Not Have the Right to Self-Defense in International Humanitarian Law Against Palestinian Occupied Territory,” Jadaliyya, December 5, 2012; and Lisa Hajjar, “Is Gaza Still Occupied and Why Does It Matter?” Jadaliyya, December 5, 2012. Under international consensus-based interpretations of IHL, it is illegal for an occupying state to use massive military force against occupied territories—whose civilian population is categorized as “protected persons.” By the same measure, indiscriminate violence and the targeting of civilians by militants from an occupied population are also illegal, although there is a right to fight against foreign occupation if done in accordance with the laws of war. This right to fight is set out in the 1977 Additional Protocol I of the Geneva Conventions, which has more than 160 state-party signatories and is widely regarded as a contemporary articulation of customary international law for asymmetric wars. Israel is not a signatory to the Protocol and rejects the principle of occupied Palestinians’ right to fight.
In order to justify its own claimed right to wage war in Gaza, Israel has staked out a position that this region is “no longer occupied.” The historical roots of this interpretative “de-occupation” date to 1967, when Israeli officials asserted that the newly captured Gaza and West Bank were not “occupied” but “administered” territories in order to claim that the military was not bound on a de jure basis by the rules and requirements of the Fourth Geneva Convention. Although this interpretation never obtained international credibility, it became the cornerstone of Israel’s doctrine on the state’s rights in the West Bank and Gaza. Israel’s position took a new course in the 1990s in response to political changes resulting from the Israeli-Palestinian negotiations, notably the military redeployment from Palestinian population centers and the establishment of the Palestinian Authority (PA). As a result of these changes, officials asserted that areas under the semi-autonomous control of the PA (Area A) had become differently “foreign.” This rebranding became highly significant following the breakdown of negotiations in July 2000 and the start of the second intifada in September.
Israel characterized Palestinian protests at the start of the intifada as acts of aggression and its own actions as national self-defense. The military’s rules of engagement were loosened, and heavy weapons, including tanks and helicopter gunships, were deployed against unarmed protesters. The justification for this war model was premised on assertions that the law enforcement model (i.e., policing and riot control tactics) was no longer viable because the military was “out” of Palestinian areas, and because some Palestinians possessed arms and thus constituted a foreign “armed adversary.” Officials described the second intifada as an “armed conflict short of war,” [4. See Asher Maoz, “War and Peace: An Israeli Perspective,” Constitutional Forum 24/2 (Winter 2005).] and asserted Israel’s self-defense right to attack an “enemy entity,” while denying that those stateless enemies had any right to use force, even in self-defense.
Over the ensuing 16 years, several events provide snapshots of the trajectory of Israeli state violence and innovative legal interpretations. The first of these is the “legalization” of targeted killing. In November 2000, the Israeli government for the first time acknowledged its targeted killing policy following the assassination of a Fatah leader, Husayn ‘Abayat, in a missile strike that also killed two women “bystanders.”
With that public acknowledgment of extrajudicial execution, which previously had been done and denied, officials including Reisner asserted its lawfulness on the following bases: 1) Palestinians were to blame for the hostilities, which constituted a war of terror against Israel; 2) the laws of war permit states to kill their enemies; 3) targeted individuals were “ticking bombs” who had to be killed because they could not be arrested; and 4) killing terrorists by means of assassination is a legitimate form of national defense. [5. See Amos Guiora, “Terrorism on Trial: Targeted Killing as Active Self-Defense,” Case Western Reserve Journal of International Law 36 (2004); and Asa Kasher and Amos Yadlin, “Assassination and Preventive Killing,” SAIS Review 25 (Winter-Spring 2005).] The deaths of untargeted civilians were termed, in accordance with the discourse of war, “collateral damage.” Between September 2000 and August 2014, approximately 440 Palestinians, of whom 278 were the targets, were killed during targeted killing operations. (This statistic excludes thousands of Palestinians killed by other means.)
The second example is the justification of indiscriminate violence. In late March 2002 Israel launched a far-ranging military campaign in the West Bank in response to a deadly suicide bombing by a Hamas operative in a Netanya hotel on Passover eve. Operation Defensive Shield, which at that time was Israel’s largest military operation since the 1982 invasion of Lebanon, signaled a change in Israel’s strategies of violence. The new strategy, termed “mowing the grass,” [6. Efraim Inbar and Eitan Shamir, “‘Mowing the Grass’: Israel’s Strategy for Protracted Intractable Conflict,” Journal of Strategic Studies 37 (2014).] was devised to inflict punishing levels of violence and destruction with the aim of both debilitating present capacities and deterring future violence against Israel. In practice, “mowing the grass” involved directing attacks not only at militants and suicide bombers and their abettors, but also at the broader infrastructure in their proximity. During Operation Defensive Shield, Israeli forces reentered many parts of Area A and laid waste to the infrastructures of the PA.
The battle of Jenin was the most decisive event in Operation Defensive Shield. Although many Jenin residents fled before the fighting began on April 2, over 1,000 remained, and Palestinian fighters from several factions prepared for the Israeli army’s incursion into the Jenin refugee camp. On April 9, 13 Israeli soldiers, all reservists, were killed in an ambush. This incident generated intense political pressure within Israel to take the camp quickly with no more soldier casualties. Consequently, instead of sending soldiers into buildings to capture or kill fighters, some buildings were shelled first or Palestinians were commandeered as human shields to precede and protect soldiers. [7. Yael Stein, Human Shields: Use of Palestinian Civilians as Human Shields in Violation of High Court of Justice Order (Jerusalem: B’tselem, 2002).] To finish the Jenin operation, the military deployed enormous armored bulldozers that flattened everything in their path. (Although the US government criticized Israel for excessive use of force in Jenin, a year later the Pentagon purchased some of Israel’s armored bulldozers and used them during urban operations in occupied Iraq.)
In retrospect, Operation Defensive Shield and especially the battle of Jenin was pivotal in the evolution of Israeli military strategy. At the time, the decision to use ground troops rather than aerial bombing was deemed more appropriately proportional. But urban operations are tactically difficult and more dangerous to the state’s own forces. The deaths of even a small number of soldiers highlighted the Jewish Israeli public’s extreme aversion to casualties. This casualty aversion inspired soldiers to use human shields to protect themselves, though the Israeli High Court of Justice subsequently prohibited that practice in a 2005 ruling.
The third example, grounded in the desire to wage war without the risk of soldier casualties, was the strategic shift toward greater violence projected from the air or from a distance. Bombardment, while less risky for soldiers, is less discriminating and proportionate to those in targeted areas. In a targeted killing operation on July 22, 2002, an F-16 dropped a one-ton bomb in the densely populated Gaza neighborhood of al-Daraj in order to assassinate Salah Shehadeh, a Hamas military commander. The bomb destroyed the apartment building where Shehadeh lived and eight nearby buildings, and partially destroyed nine others. In addition to Shehadeh and his guard, 14 Palestinians, including eight children, were killed, and more than 150 people were injured. In this instance, the military responded to public outcry about the size of the bomb, the targeting of a residential neighborhood and the high casualty rate by conducting an investigation. The findings of this investigation justified targeting Shehadeh as a perpetrator of terrorist violence while conceding that there had been “shortcomings in the information available,” namely the presence of “innocent civilians” in the vicinity of what was claimed to be Shehadeh’s “operational hideout.”
The fourth example is the repurposing of the concept of “human shields.” The rhetoric of “innocent civilians” amidst “legitimate targets” in the wake of the Shehadeh assassination foreshadowed Israel’s new use of the concept to reframe “enemy civilians” as de facto human shields being used by the enemies against whom Israel was waging war in order to shift blame for civilian casualties caused by Israeli strikes onto the organizations being targeted. Moreover, the decision to use aerial technology—whether planes or drones—to bomb individuals rather than using manned operations to capture them illustrates the strategy of prioritizing the safety of soldiers.
The logic of this prioritization was promoted as “ethical” in an influential 2005 essay authored by Asa Kasher, a Tel Aviv University professor who serves as an ethics adviser to the Israeli military, and Amos Yadlin, a general in the army. They write:
Usually, the duty to minimize casualties among combatants during combat is the last on the list of priorities, or next to last, if terrorists are excluded from the category of noncombatants. We firmly reject such a conception because it is immoral. A combatant is a citizen in uniform. In Israel, quite often, he is a conscript or on reserve duty…. The fact that persons involved in terror…reside and act in the vicinity of persons not involved in terror is not a reason for jeopardizing the combatant’s life in their pursuit. [8. Kasher and Yadlin, pp. 50-51.]
This prioritization of the safety of one’s own troops runs completely contrary to the IHL principle of civilian immunity and it fabricates from whole cloth the “civilianization” of war-waging combatants. It also fundamentally contradicts the fact that IHL makes no room for distinguishing among civilians on the basis of national identity. Grégoire Chamayou, in A Theory of the Drone, describes this Israeli effort to promote the “hierarchization of bodies” and the “civilianization” of soldiers as “the principle of immunity for the imperial combatant.” [9. Grégoire Chamayou, A Theory of the Drone (trans. Janet Lloyd) (New York: The New Press, 2015), p. 130.] He minces no words in describing the implications: “The project is nothing less than the dynamiting of the law of armed conflict as it was established in the second half of the twentieth century: an evisceration of the principles of international law in favor of a nationalism of self-preservation.” [10. Ibid., p. 134.]
The fifth example is the asserted right to use vastly disproportionate force against the expansively interpreted “against us” enemies. The backdrop to this assertion was Israel’s 2005 unilateral withdrawal of ground troops from Gaza, which was preceded by the forced removal of Jewish settlers and followed by a total sealing-off of the Strip. Following the 2006 Palestinian legislative elections that brought Hamas to power and the subsequent factional conflict that led to the routing of the PA from Gaza in 2007, the siege of the Strip intensified. This sequence of events bolstered Israel’s claims that Gaza was a terrorist-controlled hostile entity populated by terrorist sympathizers and civilians used by Hamas as human shields. [11. See Neve Gordon and Nicola Perugini, “The Politics of Human Shielding: On the Resignification of Space and the Constitution of Civilians as Shields in Liberal Wars,” Society and Space 34/1 (2016), p. 7.] This official framing was comparable, in terms of legal discourse and military strategizing, to how Israel described Hizballah-controlled areas following Israel’s unilateral withdrawal from occupied southern Lebanon in 2000. The result was the “Lebanonization” of Gaza as foreign, hostile and attackable, and a place where the safety of civilians—even during an Israeli attack—was not Israel’s responsibility. As Neve Gordon and Nicola Perugini explain, “The post-hoc framing is crucial to this process [of legitimizing bombing that kills large numbers of civilians] since it allows Israel to claim that violence was used in accordance with international law and is, as a consequence, ethical.” [12. Ibid., p. 12.]
During Israel’s terribly destructive 2006 war on Lebanon, the military employed a strategy of deliberately disproportionate force. This strategy was termed the “Dahiya doctrine” in reference to the total destruction of the heavily Shi‘i southern Beirut suburb by that name. Maj. Gen. Gadi Eizenkot, who had been head of the Northern Command in 2006, revealed the existence of this doctrine in 2008. He stated:
What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on…. We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases…. This is not a recommendation. This is a plan. And it has been approved. [13. Ynet, October 3, 2008.]
Gabi Siboni, a retired colonel and strategic analyst, elaborated upon the strategic logic of the Dahiya doctrine in October 2008 by describing it as
the principle of a disproportionate strike against the enemy’s weak points as a primary war effort, and operations to disable the enemy’s missile launching capabilities as a secondary war effort…. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritize damaging assets over seeking out each and every launcher…. Such a response will create a lasting memory…, thereby increasing Israeli deterrence and reducing the likelihood of hostilities against Israel for an extended period. [14. Gabi Siboni, “Disproportionate Force: Israel’s Concept of Response in Light of the Second Lebanon War,” INSS Insight 74 (October 2, 2008).]
Indeed, two months after the revelations about the strategic logic of the Dahiya doctrine, Gaza was subjected to similarly massive and disproportionate use of force when Israel launched Operation Cast Lead. The levels of extreme violence meted out upon Gaza between December 27, 2008 and January 18, 2009 made Operation Defensive Shield and the battle of Jenin pale in comparison.
In April 2009, the UN Human Rights Council authorized an international fact-finding mission, headed by South African jurist Richard Goldstone, to investigate Operation Cast Lead. The Goldstone Commission reported that both the Israeli military and Palestinian militants had committed war crimes and possible crimes against humanity. According to the report, Israel targeted the “people of Gaza as a whole,” not distinguishing between civilians and combatants and at times intentionally attacking civilians. Also, the report found that the targeting of civilian infrastructure was deliberate, systematic and part of a larger strategy.
The Goldstone report became an object of defensive and scornful propaganda issued by Israeli officials and other foreign supporters of Israel, foremost among them US politicians. While the report stands as one authoritative record of Operation Cast Lead, it did not lead to any consequences for those responsible for war crimes. In November 2012, Israel decided to wage another war on Gaza. Operation Pillar of Defense, which started with a targeted killing operation, was an entirely aerial campaign of bombing that lasted eight days.
The war on Gaza in the summer of 2014 was by far the most violent and destructive episode to date. Operation Protective Edge was claimed to be a response to rocket fire from Gaza but was more plausibly motivated by the Benjamin Netanyahu government’s desire to foil the Hamas-PA rapprochement that had taken hold in April. During this 51-day onslaught, Israel put to use all of the military strategies of intentional, extreme, non-discriminating amounts of violence.
In terms of the overarching objective of this war, Israel was “mowing the grass” to destroy not only present Hamas capacities but also the organization’s very existence and the possibility of a future recuperation. The bombing campaign included more than 6,000 air attacks, and the firing of about 50,000 artillery and tank shells, which, combined, has been estimated as a total of 21 kilotons of high explosives. The weapons included drones and US-made Apache helicopters firing US-manufactured Hellfire missiles and US-exported F-16s carrying 2,000-pound bombs. [15. Rashid Khalidi, “The Dahiya Doctrine, Proportionality and War Crimes,” Journal of Palestine Studies 44/1 (2014-2015), p. 5.] These levels of force and forms of weaponry are typically reserved for wars against foreign militaries.
There was clear evidence of the Dahiya doctrine—the intent to cause so much damage that it would require years of rebuilding. Israel targeted a vast array of infrastructure, including desalination plants, electrical grids, hospitals, schools and universities, as well as every structure identified with or alleged to be under the control of the Hamas government. Toward the end of the war, Israel bombed and flattened several of Gaza’s few high-rise apartment buildings and shopping centers.
There was also evidence of patent disregard for the lives and safety of Gazans who were trapped in densely populated areas with no means of escape. By the end of the war, more than 2,100 Palestinians had been killed and more than 11,000 injured, the vast majority of them civilians. Whole families were wiped out, and whole neighborhoods were razed.
The doctrine of prioritizing the safety of soldiers blended with some instances of reprisal attacks for Israeli casualties. During the assault on the Shuja‘iyya district of Gaza City, Palestinian militants put up a strong fight that resulted in the killing of 13 Israeli soldiers and the wounding of up to a hundred more. After that, the area was pounded with some of the heaviest weapons in Israel’s arsenal. Comparable levels of indiscriminate violence were meted out on other densely populated areas as well, including Bayt Lahiya and Khan Yunis.
On August 1, shortly after a 72-hour ceasefire went into effect, a reconnaissance unit of the Givati Brigades in the Rafah area encountered a Hamas unit and a firefight broke out. One of the Israeli soldiers was captured and taken into a tunnel. The commanding officer, Col. Ofer Winter, announced the implementation of the “Hannibal directive” over the radio, thus commencing a wholesale assault on the entire area. In the first three hours, 1,000 bombs were dropped, and over the course of that day more than 2,000 shells were fired—including into residential areas—resulting in a death toll of 135. It was the first time the decades-old, secretive directive had ever been employed; [16. The “Hannibal directive” was conceived in the 1980s following the capture of three Israeli soldiers by Hizballah in Lebanon. New York Times, August 7, 2014.] it entails responding to the capture of an Israeli soldier with huge amounts of force, even at the risk of killing the captive, in order to avoid a future situation in which the soldier would be used as a bargaining chip in a prisoner exchange. (In June 2016, it was reported that the directive had been canceled. [17. Haaretz, June 28, 2016.])
It is interesting to consider whether Israel’s strategic doctrines to use and justify extreme violence could become “the new custom” for asymmetric wars. Israel has engaged repeatedly in practices that contradict the bedrock rules of IHL with devastating consequences for those on the receiving end of the violence. Israel’s ability to articulate legal rationales for its own uses of extreme violence, however deviant from international consensus they may be, and thus far to avoid serious repercussions or accountability is certainly going to tempt other states engaged in asymmetric conflicts to follow similar courses and assert similar justifications. This is one way in which customary international law develops through state practice.
But other developments suggest that at least the justifications may be authoritatively undercut, even if there is no criminal accountability for specific individuals responsible for war crimes. In late 2014, the UN General Assembly recognized Palestine as a non-member state, and on January 1, 2015 the PA acceded to the Rome Statute to join the International Criminal Court (ICC). Later that month, the ICC prosecutor opened a preliminary inquiry into the 2014 war on Gaza. [18. Listen to the panel discussion entitled “Operation Protective Edge: Legal and Political Implications of ICC Prosecution,” Status Hour, October 20, 2014.]
An ICC prosecutor’s inquiry is not an investigation, although it may be a precursor to one. [19. Sarah Kanbar, “The ICC and Palestine: A Case of Doubtful Justice,” Al-Shabaka, July 1, 2016.] But the value of a high-level inquiry is to subject Israeli state practice to exposure and analysis about how it comports with or violates current rules of IHL. Indeed, the fact that this inquiry was launched (and to date is ongoing) is an apt illustration of the high-stakes battles over what is legal in war. In reaction, Prime Minister Netanyahu condemned the ICC prosecutor’s initiative and the government mobilized and supported a well-coordinated anti-ICC media campaign. At the same time, banking on the ICC treaty’s principle of complementarity (i.e., the court should be used only as a last resort when other avenues of justice are closed), Israel launched at least five criminal investigations of Operation Protective Edge.
Interpretations of what is lawful in war—especially in this century when counter-terrorism wars so dramatically disregard the rules—is a reflection of the politics of law. Therefore, on the transnational terrain where state practice and legal interpretation may or may not “ripen” into custom, there is room for other kinds of politics of law as well. These tactics involve the marshaling of evidence and empirical information about alleged war crimes and other gross violations, and judging it against consensus-based interpretations of law. There is, in other words, room for scholars and activists who are knowledgeable about IHL to participate and collaborate in the defense of rules and norms that seek to protect rather than deliberately harm humans caught up in war.
The importance of law-savvy intellectual work should not be underestimated. Among other things, it can provide substantive support for the rising tide of the boycott, divestment and sanctions (BDS) movement, which aims to draw international attention to Israeli violations of international law and has been fueled by the waves of extreme violence described above. The BDS movement does indeed, as its critics claim, seek to “delegitimize” aspects of Israeli ruling practices and use of force that violate Palestinians’ rights; those aspects should be understood as illegitimate, and international consensus-based interpretations of IHL are the basis for doing so. To the extent that those violations, including flagrant war crimes, are ignored by some and justified by others in defense of Israel, and that criticisms of gross violations by the Israeli state are falsely portrayed as manifestations of anti-Semitism, such postures should be seen as an assault on humanitarianism itself. Moreover, in light of an increasingly aggressive campaign directed by the Israeli government and supported by its fiercest defenders in the United States and other countries to stifle and even criminalize criticism of Israeli violations, the need for an empirically grounded law-based counter-narrative has never been greater.
