From the Community | Urging the president and provost to condemn atrocities in Gaza

Oct. 16, 2023, 1:44 a.m.

I was glad to read President Saller and Provost Martinez’s denunciation of the atrocities perpetrated by Hamas upon innocent Israeli citizens. They forcefully and unambiguously wrote in their Oct. 11 email to the Stanford community:

As a moral matter, we condemn all terrorism and mass atrocities. This includes the deliberate attack on civilians this weekend by Hamas. One of the advances in international law in the 20th century following the horrors of the Holocaust was the development of international humanitarian law prohibiting war crimes, crimes against humanity, and genocide. Such crimes are never justified. 

Their statement aligns with the Oct. 10 communication of the Office of the United Nations Human Rights High Commissioner, with the key exception that the UN is even-handed in its application of international humanitarian law:

The Commission has been collecting and preserving evidence of war crimes committed by all sides since Oct. 7, when Hamas launched a complex attack on Israel and Israeli forces responded with airstrikes in Gaza.

Reports that armed groups from Gaza have gunned down hundreds of unarmed civilians are abhorrent and cannot be tolerated. Taking civilian hostages and using civilians as human shields are war crimes.

The Commission is gravely concerned with Israel’s latest attack on Gaza and Israel’s announcement of a complete siege on Gaza involving the withholding of water, food, electricity and fuel which will undoubtfully cost civilian lives and constitutes collective punishment.

Lest there be any ambiguity with regard to collective punishment — “the prohibition of collective punishments is stated in the Hague Regulations and the Third and Fourth Geneva Conventions.”

Israel is heaping yet more suffering on the people of Gaza in order to punish Hamas. This act of collective punishment goes directly against the international humanitarian law that Saller and Martinez invoke to condemn Hamas. 

This collective punishment is being meted out against a captive population, 80% of whom are refugees, 60% of whom are under the age of 18. In 2010 British Prime Minister David Cameron referred to Gaza as a “prison.” The Washington Post has reported the death count of Israel’s collective punishment of Palestinian civilians — 1,537 killed, including 500 children and 276 women. Human Rights Watch has reported Israel’s use of white phosphorus on the Palestinian population — “White phosphorus … has a significant incendiary effect that can severely burn people and set structures, fields and other civilian objects in the vicinity on fire. The use of white phosphorus in Gaza, one of the most densely populated areas in the world, magnifies the risk to civilians and violates the international humanitarian law prohibition on putting civilians at unnecessary risk [emphasis added].” 

The illegality of collective punishment takes place within an illegal blockade that Israel has imposed for sixteen years, on top of an illegal occupation which has been in existence since 1967. Since Saller and Martinez predicate their statement on international humanitarian law, let us see what it says about Israel’s occupation of Palestinian territory.

Not all occupations are illegal. There are settled conventions and protocols for how an occupying state must behave if it has placed a people and their land under occupation. The International Red Cross provides this account:

The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (art. 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in certain provisions of Additional Protocol I and customary international humanitarian law…

The main rules of the law applicable in case of occupation state that:

  • The occupant does not acquire sovereignty over the territory.
  • Occupation is only a temporary situation, and the rights of the occupant are limited to the extent of that period.
  • The occupying power must take measures to restore and ensure, as far as possible, public order and safety.
  • To the fullest extent of the means available to it, the occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.
  • Collective punishment is prohibited.
  • The taking of hostages is prohibited.
  • The confiscation of private property by the occupant is prohibited.
  • The destruction or seizure of enemy property is prohibited, unless absolutely required by military necessity during the conduct of hostilities.

Israel has violated each of these provisions. Let us simply go down the list:

As far back as 2017, Israel passed a bill to annex Palestinian lands illegally, As a report from the BBC points out in its discussion of Israel’s annexation of Palestinian land, “Annexation is the term applied when a state unilaterally proclaims its sovereignty over other territory. It is forbidden by international law. A recent example was Russia’s annexation of Ukraine’s Crimea peninsula in 2014.” On that basis if we condemn Russia’s annexation of Ukraine we should likewise condemn Israel’s annexation of Palestinian land, that is if we are to be morally consistent.

Far from being “temporary,” the Occupation has been in effect since 1967. Rather than ensuring the safety and well-being of those under its occupation, Israel has deprived (via its illegal blockade) and is now in its actions of collective punishment depriving the civilian population of Gaza of hygiene, public health, food and medical care.

Palestinians under occupation are not tried in civil courts, but rather in military courts which deny basic constitutional rights to Palestinians, including children, who are not only prevented from quickly obtaining legal representation, but also often from seeing their parents, sometimes for crimes as minuscule as throwing rocks at military vehicles. This suspension of legal protections and the abuse of minors is a form of hostage taking for the purposes of silencing protest and resistance.

The unbridled appropriation of Palestinian property by Israeli settlers, armed and protected by the Israeli state, has existed for decades, but has increased exponentially under the rule of Israel’s far-right government, which tens of thousands of its own citizens have been protesting for months precisely because of its attacks on the Israeli court system.

While Israeli Jews have the right to protest when Netanyahu deprives them of their constitutional rights, Palestinians are beaten, incarcerated and killed for protesting the assault Israel has made on their lives and the rights guaranteed to them by international human rights law.

To silence the monitoring of violations of international humanitarian law, Israel has declared civil society human rights organizations “terrorist” organizations. To the grave concern of international law jurists it expelled former Stanford Law student Omar Shakir, who serves as Human Rights Watch’s director in Israel-Palestine.

In condemning the egregious violations of international humanitarian law performed by Hamas, but not acknowledging those of the other protagonist in the conflict, the statement by the president and provost, at the same moment it declares the importance of maintaining the University’s “neutrality,” effectively exonerates the State of Israel. This makes it impossible for the Stanford community to have any discussion or debate on this topic — those critical of Israeli state policies already run the risk of being labeled “anti-Semites.”

Saller and Martinez have made invisible precisely the basis for Palestinian claims to the rights guaranteed to them by international humanitarian law; they have exploited and desecrated the very law they use to advertise their moral goodness. 

Once again — whose lives matter?  Whose lives deserve justice?

This article was written by David Palumbo-Liu, who is the Louise Hewlett Nixon Professor at Stanford University, and a professor of comparative literature and by courtesy, of English.

This article was updated on the request of the author to directly substantiate their claim that Israel violated this provision: “The occupant does not acquire sovereignty over the territory” within the laws of occupation set out by the International Committee of the Red Cross.

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