Judging Warfare, Judging Territory: Jus in Bello, ‘Greater Israel,’ and the Conversion of Palestine into ‘Pirate States’

Judging Warfare, Judging Territory: Jus in Bello,‘Greater Israel,’ and the Conversion of Palestine

into ‘Pirate States’Eric Loefflad

I. Introduction

Perhaps no single space in human history has been

the subject of as many imagined futures as Israel-Palestine. For

some it is a long-awaited homeland for a people nearly exterminated

that must be defended at any cost while for others it represents a

brutal form of settler colonial domination the rest of the world has

since renounced. It is the setting for sacred events for three major

religions and also a likely catalyst for the Apocalypse. Bearing all

this in mind this essay shall explore what reality is actually being

produced based on the Israeli Supreme Court’s decisions on the law

of armed conflict while sitting as the High Court of Justice [‘HCJ’]

in the Occupied Palestinian Territories (‘OPT’).Part II of this

essay shall describe the idea of Israeli expansion, deemed ‘Greater

Israel,’ and analyse how the principles of occupation, distinction,

and proportionality, as informed by the often ignored historical

biases of the law armed conflict, operate against this background.

Part III shall explore how these principles conjunctively operate

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when view in their totality and theorize what type of future this

may ultimately create for Palestine.

II. ‘Greater Israel’ and the Laws of War

A. An Unfinished Territorial Narrative

The seemingly intractable nature of the Israel-

Palestine Conflict can be seen as rooted in Israeli territorial

claims to areas it exercises power over that, in the view of

international law, ultimately belong to the Palestinians.1 While

this is a facially simple notion, when viewed through the lens of

sovereignty deeper complexities emerge. According to Paul Kahn the

determination of a state’s territory within its sovereign borders

does not exist through an exercise of reason but a narrative of

political will2 where ‘‘[t]he border literally proclaims the

existence of the community as a quantum of power.’’3 As such a state

exists as dual spatiality occupying both an internal domain of

property governed under law and a territory presented against the

world that requires no greater justification.4 Such a view is

supported by the traditional law of statehood which seeks to

determine a state’s existence based on objective factors as opposed

1 Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html [accessed 3 April 2014] [hereinafter ‘Construction of a Wall’].2 Paul Kahn, ‘Imagining Warfare’ (2013) 24 EJIL 199, 203-04.3 Ibid 203.4 Ibid 208-09.

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to normative considerations.5 This is further supported by a view of

the effective control doctrine that generally accepts outcomes of

territorial disputes based on violent ‘trials by ordeal.’6 While

this may be contrary to rule of law notions it cannot be said better

alternatives have emerged.7 Such issues occurring trans-border are

generally constrained by international law’s strong presumption of a

state’s territorial integrity8 and are governed by use of force

provisions when they occur.9 However the case of Israel-Palestine

presents a unique configuration of these issues in that it involves

an established sovereignty with internationally recognized borders,

but undeclared national borders, pursuing an expansionist project,

involving settlement construction; resource exploitation; and

infrastructural integration that creates conditions of a de facto

annexation, at the expense of an unrealized sovereignty with a

recognized right to self-determination.10 For the purposes of this

essay this unfinished narrative of Israeli sovereign territory shall

be referred to as ‘Greater Israel.’11

5 Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934).6 Brad Roth, ‘Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ (2010) 11 Melbourne JIL 393, 394.7 Ibid 439.8 Charter of the United Nations (signed 26 June 1945, entered into force 24October 1945) 1 UNTS XVI (UN Charter) Chapter I, Article 2(4).9 Ibid Chapter VII.10 Construction of a Wall (n 1) ¶122.11 See Avi Shlaim, The Iron Wall: Israel and the Arab World (W.W. Norton & Co. 2001).

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Any attempt at analysing this notion of Greater Israel

in the scope of the Israel-Palestine Conflict would necessarily

invoke jus ad bellum or reasons for having a conflict. Integrating

these understandings into a discourse on jus in bello, or rules on

conduct of hostilities, would conflate the two notions against the

strong presumption they remain separate.12 This separation is

traceable to the notion that the rules meant to reduce the suffering

of war should apply regardless of the reasons for the war.13 However,

despite this proclaimed neutrality and symmetrical application jus in

bello carries with it the biases of the contexts in which it was

created and, furthermore, exists not to eliminate violence but to

permit it’s application in certain conditions by certain people in

contrast to others.14 In the pursuit of Greater Israel, Israel

maintains distinct advantages that derive both from the separation

of jus ad bellum/jus in bello and jus in bello’s very nature that become

present upon analysis of HCJ case law.

B. Occupation

In viewing the legal architecture of the

occupation one must look to the twin aims of sovereignty

preservation under The Hague Regulations and humanitarian protection

12 See Robert Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’ (2009) 34 Yale JIL 47.13 See Nathaniel Berman, ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Columbia JTL 1, 11-12.14 Ibid 5-6.

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under Geneva IV. In assessing sovereignty preservation, which is

declared as fundamental under Article 42 of the Hague Regulations,

it must be remembered that the convention’s archaic nature has led

to a view that the old formalism it represents must yield to a

functional pragmatism especially given the unique circumstances of

the OPT.15 This is compounded by the contextual biases of 19th century

international law that did not fully apply to non-Europeans and

presumed a formal equality of belligerents.16 Since Palestine never

existed as a sovereign state under this international legal order

defining the nature of any sovereign claims are inherently

speculative and have minimal chance in argument against strong

pragmatic policy justifications.17 Additionally, the longer and more

transformative the occupation the more convoluted this idea of

sovereignty becomes.18 These issues are manifested when it comes to

declaring Palestinian private property as ‘state land’ should

security justifications override the interests of the local

population. The provision for land requisition to serve the needs of

the occupying army under Hague Regulation 52 has been interpreted by

the HCJ as allowing this action to serve the security needs within

15 Martti Koskenniemi, ‘Occupied Zone-A Zone of Reasonableness?’ (2008) 41 Israel LR 13.16 Ibid 30-31 (footnote 65).17 Especially under the view that sovereign territory cannot be deduced through reason. Kahn (n 2) 203-04.18 See Orna Ben-Naftali, Aeyal Gross, and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley JIL 551, 605.

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both the OPT and Israel Proper.19 However, in subsequent cases the

Court ordered that such security interests must be narrowly

construed without reference to broader ideological aims.20 Yet,

according to David Kretzmer, the broad justification of security as

a means to requisition land was able to survive when viewed in

conjunction with Hague Regulation 43 which provides a duty to the

occupier to maintain ‘public order and safety.’21 It because of this

broad latitude for land seizure the spatial conditions for the

settlement policy are present.

The HCJ possesses additional avenues for

flexibility under Geneva IV due to rejection of the convention in

its totality to the OPT but selective application of its

humanitarian provisions.22 Thus the court, whether consciously or

unconsciously, has the power to shape the aggregate situation by

exercising discretion concerning what issues are subject to judicial

scrutiny and how they are contextualized. The situation created is

an interest balancing of numerous beneficiaries23 that includes the

human rights of Israeli settlers which ultimately increases the

scope of competing claims and thus reduces space for rights 19 HCJ 606/78 Ayyub v. Minister of Defence, (1978).20 HCJ 390/79, Dweikat et al. v. Government of Israel et al. (1979); HCJ 393/82, Jami’atAscan et al., v. IDF Commander in Judea and Samaria et al. ¶ 13 (1983). 21 David Kretzmer, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ (2012) 94 International Review of the Red Cross 207, 217-19.22 Ibid 209-11. 23 Guy Harpaz & Yuval Shany, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’ (2010) 43 Israel LR 514, 535.

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assertions by the Palestinian population who, unlike other groups,

are protected persons under Geneva IV.24 Additionally, the Court’s

evasion of the fundamental question of settlement legality has

allowed the policy to continue under an interpretation by the

Israeli government declared unlawful by the ICJ.25 It can be said

that this selective under-application, as well as over-application,

concerning humanitarian principles under occupation has come at the

expense of Geneva IV’s ultimate purposes.

When these various individual matters under the

neutral framework of jus in bello are taken in their totality the

isolated deployments of rationality breakdown against the backdrop

of ‘Greater Israel’ which, as a territorial narrative, is pursuit

set apart from rationality.26 Thus the project of reasonable

adjudication ultimately serves the forces outside of reason for the

increasingly complex regime of rights/interests in the OPT

ultimately justifies increased discretion by the Military

Commander.27 This has taken on a new dimension in the Mara’abe case

where responsibilities for rights of the local population are

essentially delegated to a Military Commander who ultimately is a

direct agent of the sovereign pursuing a project fundamental adverse

24 See Aeyal Gross, ‘Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation’ (2007) 18 EJIL 1.25 Construction of a Wall (n 1) ¶120.26 Kahn (n 2) 203-04.27 See Harpaz & Shany (n 23).

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to the ‘protected person’ within that population.28 Additionally, the

process by which Palestinian properties are converted into Israeli

settlements is ultimately a series of pragmatic legal moves that

operates according to Kahn’s property/territory distinction.29 For

here Palestinian private land (under a domain of ‘property’) is

declared public ‘state land’ for security purposes (under a

rationale of sovereign ‘territory’) then given to Israeli citizens

for private usage (and within the internal domain of ‘property’

under a new sovereign). Even the notion of balancing any interest

against security itself is problematic if viewed as presuming a

sovereign which by right places an ultimate premium on its own

existence and only accommodates anything else as ancillary to this

Grundnorm.30 Under this construction all independently reasonable

security measures ultimately collapse into the occupier’s sovereign

will that possesses the power to subordinate any competing claim of

humanitarian protection, let alone incompatible sovereignty claim,

by the occupied population. Unless there is some space for these

countervailing interests to be asserted as an overriding value it is

difficult to see how this arrangement will cease. This raises the

issue of the HCJ irreducibly being an organ of Israeli sovereignty

28 HCJ 7957/04 Mara’abe v. The Prime Minister of Israel, ¶¶24, 29 (2005); See Koskenniemi (n 15) 17-18.29 Kahn (n 2) 208-09; for the mechanism behind this see Ben-Naftali et al. (n18) 582-83. 30 For a view that this is fundamental within Liberalism see Mark Neocleous, ‘Security, Liberty and the Myth of Balance: Towards a Critique of Security Politics’ (2007) 6 Contemporary Political Theory 131, 134-40.

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which may explain why the ICJ, free of such constraints, was able to

transcend the logic of security and find countervailing interests.31

Whether due to sovereign will, inherent advantages in the laws of

war, or a failure to confront such asymmetries in the interests of

justice in the end involvement by the HCJ as neutral pronouncer of

occupation norms has, at best, failed to halt Greater Israel and, at

worst, served to legitimize it.32

C. Distinction

Another principle that is fundamental to jus in

bello, yet endlessly problematic in the Israel-Palestine Conflict, is

distinction between persons and objects with the respective statuses

of combatants, who can be targeted, act with impunity (except for

war crimes), and are entitled to prisoner of war status,33 or

civilians who are immune from targeting.34 While such distinctions

were relatively simple under conceptions of warfare that pitted the

armed forces of sovereign states against one another on easily

delineated battlefields35 they have been endlessly strained by the

31 Koskenniemi (n 15) 24-25. For analysis of differing approaches by the HCJ& ICJ see Aeyal Gross, ‘The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structureof Occupation’ (2006) 26 LJIL 393. 32 See Nimer Sultany, ‘Activism and Legitimation in Israel’s Jurisprudence of Occupation’ (2014) Social and Legal Studies 1. 33 Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949. 34 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Articles, 50-52. 35 See Frédéric Mégret, ‘War and the Vanishing Battlefield’ 9 Loyola University Chicago ILR 131 (2011).

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proliferation of guerrilla war in the 20th century with Israel-

Palestine being a quintessential example. In the Targeted Killings case

Israel announced its legal parameters for distinction as based on

provisions of Geneva Protocol I it considers to be customary

international law.36 The Court declared that the conflict was

categorized as an international armed conflict37 and members of

‘terrorist organizations’ were not combatants38 but rather civilians

who in certain circumstances could lose their protected status yet

could be prosecuted for acts committed pursuant to the hostilities

(unprivileged belligerents).39 This determination is subject to a

three part test assessing (1) ‘’Taking…part in hostilities,’’ (2)

‘’Takes a Direct Part,’’ and (3) ‘’For Such Time’’ on a case by case

basis40 Part (1) has been defined as any action intended to cause

damage to the army, the state, or the civilian population of the

state and does not require the use of weapons.41 Part (2) views a

‘direct part’ broadly as including not only those physically

participating in an attack but those who ordered, decided upon, and

planned the attack.42 Finally part (3) differentiates between

participation in a single instance where civilian status is 36 HCJ 769/02 The Public Committee Against Torture in Israel et al. vs. The Government of Israel et al. (2006) (available at https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/IsraeliTargetedKillingCase.pdf ) (hereinafter Targeted Killings).37 Ibid ¶18.38 Ibid ¶25.39 Ibid ¶30-31.40 Ibid ¶32.41 Ibid ¶33.42 Ibid ¶37.

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subsequently regained and membership in a ‘terrorist organization’

where civilian status is not regained between operations.43 In the

‘grey areas’ between these designations targeting an alleged

unprivileged civilian must be guided by (1) ‘’…well based

information…’’ they have become a legitimate target, (2) the

mandatory employing of ‘’…less harmful means…’’ if available, (3) an

independent investigation following such an attack, and (4) an

application of the proportionality test regarding harm to nearby

protected civilians.44

Yet when viewing this case it must be remembered

that the principle of distinction, through the combatant’s

privilege, idealizes users of violence as uniformed servicemen of a

sovereign state.45 The unprivileged belligerents defined in Targeted

Killings, subject to targeting and prosecution; occupy a space of dual

liability as enemy/criminal hybrids.46 This outcome is legitimized

ultimately by the culturally specific Western practice of a

sovereign entity maintaining distinguishable armed forces that exist

under a separate legal and social order as the legitimate employers

of violence.47 Such a discrepancy was present in the wars of European

43 Ibid ¶39.44 Ibid ¶40.45 Frédéric Mégret, ‘From ‘Savages’ to ‘Unlawful Combatants’: A PostcolonialLook at International Humanitarian Law’s ‘Other‘’ In: Anne Orford (ed.) International Law and It’s Others (CUP 2009) 304-05.46 See Paul Kahn, ‘Criminal and Enemy in the Political Imagination’ (2011) 99 Yale Review 148.47 Mégret, (n 45) 306-11.

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colonization where unrestrained force of the utmost brutality was

justified against entire populations that did not maintain any

analogous practice of distinction.48 This issue continues into the

Israel-Palestine Conflict in that the ‘terrorist organizations’ the

category of unprivileged belligerent seeks to address, with Hamas

being an example, often involve broader actions within their

community with an armed wing only representing a part of a greater

whole.49

In the present case Israel maintains a distinct

advantage in that its formation as an organized military and

political entity predates, and disrupted, any analogous Palestinian

process.50 As such Israel maintains a force jus ad bello’s idealized

combatants while Palestine is unable to produce an analogous

counterpart. While certain provisions of Protocol I would change

this by granting increased protections to guerrilla combatants

Israel has never adopted this Protocol and does not regard these

provisions as customary.51 Furthermore, any attempt at Palestinian

organization into an armed force that would fit the traditional

designation of combatant would likely fall under Targeted Killing’s 48 See Elbridge Colby, ‘How to Fight Savage Tribes’ (1927) 21 AJIL 279.49 This also raises problem concerning ‘part-time combatants.’ see Berman (n13) 50-52.50 See Giorgio Gallo & Arturo Marzano, ‘The Dynamics of Asymmetric Conflicts:The Israeli-Palestinian Case’ (2009) Journal of Conflict Studies ¶31-38; for an account of how Israel emerged as a strong state see Joel Migdal, Strong Societies and Weak States, State-Society Relations and State Capabilities in the Third World (Princeton 1988) 142-72.51 See Targeted Killings (n 36) ¶20.

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expansive definition of unprivileged belligerency and be subject to

suppression as such. This question of distinction has great

implications for the Greater Israel in that acknowledging lawfully

organized Palestinian forces would suggest a legitimacy of

Palestinian resistance that may imply an illegitimacy of Israel’s

actions.52 Such a change in jus in bello status could produce unavoidable

jus ad bellum consequences and the Targeted Killings approach may prove a

valuable tool for maintaining this status quo.

D. Proportionality

Another provision defined in Targeted Killings is the principle

of proportionality or the ‘collateral damage rule’ which allows for

a permissible number of civilian causalities when weighed against

achieving a military objective.53 Here the Court stated that ‘’…that

combatants and terrorists are not be harmed if the damage expected

to nearby civilians is not proportionate to the military advantage

in harming the combatants and terrorists…’’ and these determinations

are to be made on a case by case basis.54 However, what exactly this

covers is irreducibly broad and subject to constantly changing

circumstances.55 In determining these considerations, according to

Rotem Giladi, the legitimate advantage sought by the proportionality52 For an account of denial of Palestinian subjectivity as vital to Revisionist Zionist aims see Shlaim (n 11) 5. 53 Protocol I (n 34) Article 51(5)(b).54 Targeted Killings (n 36) ¶45-46.55 Amichai Cohen & Yuval Shany, ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case’ (2007) 5 JICJ 310, 316.

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balancing test must be expressed as purely military, not political,

to avoid jus ad bellum conflation.56 However, in applying Carl von

Clauswitz’s notion of war as just another avenue of policy he states

that ‘’[i]f legitimate military ends derive from political ends in

‘pure’ wars…., than at the analytical level, legitimating the

military means necessarily legitimates political ends.’’57 In

applying this to the Israel-Palestine Conflict, where fighting

‘terrorism’ was the justification for legal approach in Targeted

Killings, there is a problem in that ‘terrorism’ has never been

comprehensively defined under international law.58 While certain

actions under international legal instruments defined as ‘terrorist’

are doubtlessly relevant to, and often emerged in the context of,

the Israel-Palestine Conflict59 the proportionality test in Targeted

Killings bases its understanding of ‘terrorism’ not on this but on

broad, sui generis notions. Additionally, by collapsing the legal

category of unprivileged belligerent into the political notion of

‘terrorism’ jus ad bellum ends are accomplished through jus in bello

reasoning. As such this loose definition allows broad politically

infused discretion regarding ‘terrorism’ (& implications of Greater

56 Rotem Giladi, ‘Reflections on Proportionality, Military Necessity and theClausewitzian War’ (2012) 41 Israel LR 323, 326-28.57 Ibid 334.58 See Upendra Acharya, ‘War on Terror or Terror Wars: The Problem in Defining Terrorism’ (2009) 37 Denver JILP 653, 656-57.59 Ibid 659-60.

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Israel) to be reduced to a pure military objective when justifying a

proportionality determination before the HCJ.

III. Collective Results and the Future of Palestine

A. Occupation, Distinction, Proportionality: A Holistic View

According to Nimer Sultany a central problem of the HCJ

is its decontextualizing of the overall oppressive situation in the

OPT through limiting itself to selective review of specific

instances while ignoring the broader reality.60 This, he contends,

allows the court to re-contextualize the situation with Israel as

‘’…a defensive democracy and a well-meaning occupier that is faced

by incomprehensible and irrational violence.’’61 It is from such a

starting position that issues relating to occupation, distinction,

and proportionality can be framed as pragmatic case by case pursuits

aimed at balancing all relevant interests. However, while these

issues and sub-issues can be neatly isolated and presented for the

purposes of adjudication, on the ground the reality is they are

constantly influencing and reshaping one another with the spectre of

the Greater Israel remaining ever present.

In assessing how the law of occupation and

distinction interact in the prevention of Palestinian mobilization

into a more legally cognizable combatant force mentioned in Part

II.C has an additional justification under the Hague Regulations to

60 Sultany (n 32) 11.61 Ibid 11-12.

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maintain order and security in the occupied territory.62

Additionally, in this context the Targeted Killings court’s reasoning in

crafting an expansive ‘direct participation’ standard is problematic

in its citation to a view arguing that ‘’….a liberal approach [to

direct participation] creates an incentive for civilians to remain

as distant from the conflict zone as possible…’’63 Such a view

utterly fails to account for the present situation where the

occupation is actively facilitating a transformation of the area

through the construction, maintenance, and expansion of hostile

settlements. Under these circumstances it is not merely a matter of

civilians going to conflict zones but conflict zones being forced

upon civilians. Given this the de facto reality becomes one where the

civilians’ protection from targeting (and prosecution) is contingent

upon a reciprocal duty of passivity in the face of dispossession.

Distinction and proportionality directly interact in

that an increased number of unprivileged belligerents correlate with

an increased scope of collateral damage acceptable when targeting

said belligerents.64 Furthermore, the occupation’s ‘splintering’

character65 accomplished by the requisition of land for security

62 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Article 43.63 Targeted Killings (n 36) ¶34 (quoting Michael Schmitt, Direct Participation in Hostilities and 21st Century Armed Conflict, In: H. Fischer ed., Crisis Management and Humanitarian Protection: Festshrift fur Dieter Fleck (2004) 505-09). 64 See Ibid. 65 Achille Mbembe, ‘Necropolitics’ (2003) 15 Public Culture 11, 28.

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purposes has the effect of concentrating a growing Palestinian

population into increasingly shrinking spaces. Under these

conditions proportionality arguments can justify ever increasing

collateral damage on the grounds there is simply no alternative

means of pursuing the legitimate military objective of targeting

combatants. Finally there is the issue of ‘post-occupation’66

societal disorder traceable to the long-term and transformative

effects of the occupation being responded to with the force

justified by a wide approach to distinction and proportionality that

can be freely untaken without any restraints of a trustee’s duty to

preserve existing conditions mandated by the law of occupation.67 The

high human cost of 2008’s Operation Cast Lead in Gaza showcases the

destructive possibilities of this arrangement.68

B. ‘Pirate States?’

In view of all this the question becomes ‘what is the

ultimate reality being produced?’ In this situation the only way the

narrative of sovereign expansion that is Greater Israel can succeed

66 While the presence or absence of occupation in Gaza remains contested theHCJ’s position is that it is not. HCJ 9132/07 Gaber Al-Bassiouni vs. The Prime Minister (2008). But see Iain Scobbie, 'An Intimate Disengagement: Israel'sWithdrawal from Gaza, the Law of Occupation and of Self-Determination.' In:E. Cotran & M. Lau, (eds.), (2007) 11 Yearbook of Islamic and Middle Eastern Law 3 (2004-2005). 67 For an analysis of the occupier’s trustee responsibilities see Ben-Naftali et al. (n 18) 575-78. 68 For a view this constituted a war crime see George Bisharat, Timothy Crawley, Sara Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, & Anna Sanders, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38 Denver JILP 41, .

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in the face of an irreconcilable counter claim of Palestinian self-

determination is to kill the counterclaimant’s hope of realizing

legal subjectivity. My argument is that a conceivable way of doing

this is by generating a system of self-perpetuating insecurity that

justifies such a high premium on security no normative counter

argument can ever be legitimate. Here notions of jus in bello shall act

simultaneously as the sword of destruction and shield of

legitimation all under the eyes of the HCJ.69 If successful, this

arrangement shall comport with the Schmittiam notion of the ‘state

of exception’ acting not as a suspension of the existing order,

envisioned by the law of occupation, but the formation of an

entirely new order.70

Thus enter the ‘Pirate States’ hypothesis. This name

emerges from Gerry Simpson’s view that the pirate, as an ‘enemy of

all mankind,’ represents the international legal order’s eternal

outsider that any recognized actor in that system has an inherent

interest in supressing.71 As such ‘Pirate States’ are not states at

all but rather collectives of individuals defined on the basis of

69 See Sultany (n 32). 70 Ben-Naftali et al. (n 18) 606-08 .71 Gerry Simpson, Law, War and Crime: War Crimes Trial and the Reinvention of International Law (Polity 2007) 161-62; The affixing of such a label to Al-Qaeda post-9/11 has allowed forces within Israel to portray Palestinian opponents, through association with ideologies and tactics, as a component of this greater threat and the Israel-Palestine Conflict not as a regional issue but the frontlines of a global ‘War on Terror’ where not just the security of Israel but humanity is at stake. See Derek Gregory, The Colonial Present: Afghanistan, Palestine, Iraq (Wiley-Blackwell 2004) 138-43.

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their exclusion from, and opposition to, a greater order.72 Perhaps

what makes pirates so repugnant to the international system is their

de-territorialized nature in defiance of an order defined by

separate spheres of territorial sovereignty.73 Thus in converting

Palestine into series of ‘Pirate States’ the strategy would be on

de-territorializing fragmentation facilitated by both the methodical

violence of occupation and the acute violence of hostilities conduct

(employing distinction & proportionality)74 all justified on

pragmatic/security grounds by the HCJ. Yet, with each violent act

the more intractable the fragmentation becomes, the more security

considerations involving extreme force are justified, and the

further the downward spiral is extended. Such effects of perpetual

conflict involving the IDF, Israeli settlers, and various

Palestinian factions against each other (as observed in the Gaza

disengagement and subsequent Fatah/Hamas clash), if multiplied

likely would negate any development of the effective control

required for statehood.75 At this point the conflict between Israel

and the ‘Pirate States’ could not be categorized as anything

resembling a struggle between sovereignties, even asymmetrically

72 Simpson (n 71) 167-69.73 Ibid 172, 174-77. 74 Such conditions have been described as advanced weapon/surveillance technologies applied under conditions of medieval siege warfare. Mbembe (n 65) 29.75 While traditional statehood criteria attempted objectivity recent approaches have emphasized normative considerations such as democracy and human rights that are difficult to expect under conflict conditions. See Martti Koskenniemi, ‘The Future of Statehood’ (1991) 32 Harvard JIL 397.

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opposed as ‘established’ and ‘unrealized,’ but rather an exercise of

‘’pest control.’’76

Also it must be realized that the Palestinian right

to self-determination belongs to Palestine as a whole and not any

sub-entity within it77 and this could be endlessly strained by

fragmentation. Even if Palestine was to be fully recognized as a

matter of pure principle despite everything78 there remains practical

issues of critical importance without established answers such as

which competing faction is the rightful government for the purposes

of international representation (i.e. a ‘credentials

controversies’).79 Against the totality of this backdrop efforts at

Greater Israel would be poised to intensify with security

justifications providing license to requisition land to be converted

into settlements. In the end any hope of achieving a viable

Palestine under ‘Pirate State’ conditions becomes a fantasy and the

Greater Israel has a path to continue unimpeded.

IV. Conclusion

Perhaps all this is the perfect example of ‘’….the

very preservation, not the abolition, of jus in bello’s ‘’rules and

76 Simpson (n 71) 175 (quoting Carl Schmitt, The Concept of the Political. George Schwab, trans. (U Chicago 1996)).77 See Scobbie (n 66) 23-25.78 Paul Eden, ‘Palestinian Statehood: Trapped Between Rhetoric and Realpolitik’ (2013) 62 ICLQ 225, 237.79 Montivedo Convention (n 5) Article 1(d); Brad Roth, Governmental Illegitimacy in International Law 255-60, 283-89 (OUP 1999).

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principles’’ ….[making] possible their deployment for strategic

purposes.’’ 80 Against the backdrop greater conflict it is difficult

to say applying discrete rules of reasonableness has the power to

make an unreasonable situation more reasonable. Perhaps this has

something to do with jus in bello’s historical biases, perhaps the

outcome would be the same regardless those biases, or perhaps a

completely reasonable application of jus in bello is impossible. Is the

ultimate conclusion of such though to surrender to endless

digression as to whether jus in bello is or is not justifiable?

However, in the context of the Israel-Palestine such a

retreat into the abstract universe of legal interpretation, whether

formalist; pragmatic; or critical, is to avoid the base realities of

a conflict where the darkest legacies of nationalism and colonialism

manifest themselves in everyday life with no end in sight. I

conclude by advocating the view that an analysis of law in this

context, jus in bello or otherwise, must be informed by imagining the

success of Greater Israel (whatever that is) and the endgame of

Palestinian self-determination, whether by the above pirate state

hypothesis or otherwise. By envisioning the consequences this would

have for Israelis & Palestinians, for the Middle-East, and for the

world, it is revealed just how high the stakes actually are.

80 Berman (n 13) 54.

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