International law – a handy excuse

In Gaza suchen Menschen verzweifelt nach sicheren Räumen
Gazans were told to move to the southern part of the Strip, but they are not safe there either (image: Abed Rahim Khatib/Anadolu/picture alliance)

In the shadow of war, the Israeli government is becoming increasingly radicalised. Is the German government aware of this trend and the risks it poses? There are no signs that it is. Germany doesn't even have a Middle East policy

Essay by Stefan Buchen

The Israeli army has extended the war throughout the entire Gaza Strip. Aircraft, drones and artillery keep up a barrage from a distance, while tanks and foot soldiers shoot at close range. They have advanced into formerly inhabited areas and entrenched themselves inside or amongst the ruins of seized buildings. The former residents are forced to huddle together in other areas of the Gaza Strip, especially in the south. But it is not safe there either. 

Until now (11.12.2023), the Israeli campaign can still be readily justified based on international law. It constitutes a counter-attack in response to the Hamas assault of 7 October, in which more than 1,000 Israelis, most of them civilians, were massacred and more than 200 abducted. 

The military counter-attack can be reconciled with the law, particularly as Hamas is still firing rockets into Israeli territory two months later. Even the violent occupation of hospitals and other civilian facilities can be justified as "legal" if they have served as bases for shooting or other military use. 

A overloaded car, its roof packed high with luggage and a man perched on its bonnet, drives along a street in Khan Younis. A donkey cart transports people in the other direction
Desperately searching for a safe place: in Khan Younis, Gaza Strip, people have been fleeing further south towards Rafah and the Egyptian border (image: Mohammed Dahman/AP/picture alliance)

International law is of no use in this case

Certainly, counter-arguments could also be cited under international law. Above all these relate to the number of civilian casualties in Gaza: many more than 10,000, many of them women and children.

Furthermore, vital aid supplies, such as food and medicine, have been temporarily cut off or limited in the embattled region, where more than two million people are trapped – and this not just since the war. 

The debate on international law is, we may suspect, sterile. It does not help. It doesn't lead anywhere, but goes round in circles. Nor is there effectively any judge or court with jurisdiction. But this is precisely why international law may serve as a welcome refuge in this conflict for agents who are at pains to conceal their powerlessness, such as the German government. 

What use are the references to Israel's "right to self-defence under international law", as cited by German Chancellor Olaf Scholz and Foreign Minister Annalena Baerbock, for example? What is the point of exhortations to please observe international law when waging war? 

At an EU summit in Brussels on 26 October, Scholz said he had "no doubt" that Israel would act in accordance with international law in its campaign. "Israel is a democratic state guided by very humanitarian principles," he explained. This is a safe way to make oneself seem small and insignificant and to relinquish any claim to playing an active role. The political price that the German government is paying for this stance is a disconnect from reality. 

Headshot of German Chancellor Olaf Scholz as he speaks into a bundle of colourful press microphones
Disconnect from reality: German Chancellor Scholz stated at an EU summit in Brussels on 26 October, he had "no doubt" Israel would act in accordance with international law in its campaign. "Israel is a democratic state guided by very humanitarian principles" (image: Kenzo Tribouilliard/AFP)

Power at any price

The Middle Eastern reality is meanwhile largely controlled by the Israeli government, which is as ultra-nationalist as it is irrational and which, having failed for all the world to see, is relying on demagoguery to stay in power. War is known to provide fertile ground for any form of demagogy. 

Netanyahu has pronounced permanent military rule over the Gaza Strip. He claims quite openly that he is the only politician in Israel who can prevent the establishment of a Palestinian state. If he succeeds, the German government's appeals for a two-state solution, regularly voiced by Scholz and Baerbock, are nothing but empty words. 

Avi Dichter, Minister of Agriculture in Netanyahu's cabinet, has promised a "Nakba 2023" for the Palestinians in the Gaza Strip, i.e., a repeat of the mass expulsion of 1948. The TV station "Channel 14", which propagates Israeli government policy, regularly calls for the expulsion of Palestinians from the Gaza Strip to Egypt. 

The panel guests featured on "Channel 14", mouthpieces for the religious-nationalist leanings of the regime, appeal on an almost daily basis for the re-establishment of Israeli settlements in the Gaza Strip. Those settlements were cleared in 2005 under Prime Minister Ariel Sharon, whose aim was to concentrate all settlement activities in the West Bank.

Israel's National Security Minister Itamar Ben-Gvir (left) and Finance Minister Bezalel Smotrich sit together in the Knesset
"The Middle Eastern reality is meanwhile largely controlled by the Israeli government, which is as ultra-nationalist as it is irrational and which, having failed for all the world to see, is relying on demagoguery to stay in power," writes Buchen. Pictured are National Security Minister Itamar Ben-Gvir (left) and Finance Minister Bezalel Smotrich (image: AMIR COHEN/REUTERS)

Sawing away at the branch of coexistence

After the murderous Hamas attack on 7 October, the opposition leader in the Knesset, liberal Yair Lapid, considered joining the war cabinet, but only on condition that the two far-right ministers Itamar Ben Gvir (National Security) and Bezalel Smotrich (Finance and Settler Affairs) be dismissed. Netanyahu refused to do so. As the war wears on, Netanyahu is revealing just how much he relies on the fascist fringe in his government to ensure his political survival. 

Netanyahu and his entourage appear to be downright disappointed that the Arab citizens of Israel, making up around 20 percent of the population of the territory within the borders from 5 June 1967, are demonstrating loyalty to the State of Israel. Spokespersons for the Arab population, such as Knesset Member Mansour Abbas, have condemned the massacre committed by Hamas on 7 October in no uncertain terms.

This sends a clear signal that they want to preserve hope for a humane future, from the river to the sea. The sense of responsibility and the sheer courage that this stance requires today has been recognised by many Jewish Israelis and seen as a glimmer of hope in dark times. 

And that is precisely what seems to bother the Netanyahu government. It has therefore set about sawing away at this last branch of coexistence. The Minister of National Security, Itamar Ben Gvir, who has been convicted of racist hate crimes, is pushing ahead with the distribution of weapons to "the citizens" under cover of war. 

There can be no doubt as to whom the government intends to target with this new private firepower: the Arab population and Jewish Israelis critical of the government. In a press conference on 2 December, the head of government explicitly backed the mass distribution of firearms to civilians: "I support this move." There would certainly be "a price" to pay, said Netanyahu, but "that's life".

A newly constructed Israeli settlement – rows upon rows of neat white houses – in the Palestinian West Bank
Despite criticism from its ally, the USA, Israel continues to build settlements in the West Bank: Prime Minister Benjamin Netanyahu has openly stated that he is the only politician in Israel who can prevent the establishment of a Palestinian state (image: Muammar Awad/XinHua/dpa/picture alliance)

Pressing political issues

A well-known comedian quipped: "No, Mr. Prime Minister, that is not life. That is death," in the satirical TV show "A Wonderful Country" (eretz nehederet). The black humour paints a clear picture for anyone who hasn't yet understood what is going on: a civil war is smouldering right beneath the surface. 

What does the German government know about this? And what about the United States, Israel's most important ally by far? What role do these facts play in their Middle East policy? Evidently not a major one. Washington and Berlin have given the Netanyahu government carte blanche for a retaliatory war in the Gaza Strip, all of course "within the framework of international law". 

Certainly, without legal principles, it is not possible for people to live together in harmony, especially across national and international borders. But the law also relies on certain conditions that it cannot create by itself. The suspicion may well arise that Israel's allies are misusing the mechanical reference to international law as a pretext to avoid pressing political issues. They are hiding behind it. In this way, Washington and Berlin are aiding and abetting the lack of intervention in the war. 

The conduct of the German government is in good part about the repercussions of the historical German mass murder of Jews. The common interpretation is well known: Israel's security is a German reason of state. And Scholz, Baerbock and the entire German political establishment too readily equate Israel with the current Israeli government. It is not without good reason that the Israeli historian Moshe Zimmermann pointed out on 26 October how "dangerous" this government is for the continued existence of the State of Israel. 

Zimmermann had already commented on 13 April 2023 that: "A government that is far-right cannot be a partner for a German government that relies on learning from history." A thorough grounding in history forbids cooperation "with racists", he said. For a scholar of contemporary history like Zimmermann, there is no doubt that Netanyahu's government, which has been in office since 29 December 2022, is a government of racists. 

The character of that government is best illustrated by the fact that, in some ways, 7 October 2023 was not a turning point for it. Even before the brutal Hamas attack, Netanyahu had begun to abolish democracy by eliminating the independent judiciary

Since the outbreak of war, his government has continued to dismantle democracy by other means. The distribution of weapons to government supporters, the backing of settlers in the West Bank who harass and expel Palestinians, the ban on anti-government rallies while at the same time allowing demonstrations of power by religious nationalist provocateurs on the Temple Mount in Jerusalem – all of these actions are indications of undemocratic politics. 

This manifests itself most strongly in the desire to prolong the war. Because, along with the "complete destruction of Hamas" and "total victory" (in the words of Benjamin Netanyahu), the war also (and perhaps above all) provides a way to shirk accountability for the failure of 7 October. On that day, "Mr. Security", as Netanyahu liked to call himself, failed to protect his own citizens. 

Where is Israel heading?

Netanyahu leaves no doubt that he wants to remain in power. He was "elected" and had a "mandate", he stressed at a press conference on 2 December, rejecting calls for his resignation. Netanyahu likes to refer to his democratic legitimation. And yet, many have a nagging suspicion that the prime minister could be seeking a permanent state of emergency in order to consolidate his own power and that of his party, regardless of democratic legitimacy. 

The Israeli journalist Zvi Bar'el has described the situation in a tone that provides food for thought: with self-pity couched in sarcasm: "In Gaza, people can still hope for a positive turnaround after the end of the war," he writes in the anti-government newspaper Haaretz. "We Israelis, on the other hand, will return to the stinking bosom of a government that brought this catastrophe upon us." 

And what about Scholz and Baerbock? They are at a loss for how to deal with a democratically elected government that embraces obviously undemocratic ideals. All the talk about "sharing the same values", the "two-state solution" and "international law" has caused the German government to lose touch with reality. 

Stefan Buchen

© 2023 

Translated from the German by Jennifer Taylor

Stefan Buchen author studied Arabic language and literature at Tel Aviv University from 1993-95 and then worked as a journalist in Israel and the Palestinian territories until 1999. He is fluent in Hebrew and Arabic. He now works as a television journalist for the ARD magazine programme Panorama.