Nick Leiber

The current situation in Gaza is horrifying and dire, even more so than it has been over the last several decades. Following Hamas militants killing over 1,200 people in Israel and taking roughly 240 people hostage on Oct. 7, Israel’s military has killed more than 12,000 Palestinians, NPR reported. United Nations experts are warning of “a genocide in the making.” The history of Israel’s occupation of Gaza and the West Bank adds crucial context.

CUNY Law Review’s central mission is to publish legal scholarship to “address the consequences of structural oppression, and to challenge these structures.” As a CUNY Law Review editor helping to realize this mission, I see it as aligning with Palestinian self-determination and opposition to the occupation and Israel’s warfare. With this in mind, and to help me understand the promises and the failures of domestic and international law in addressing the atrocities and their aftermath, the work of legal scholars and practitioners has been helpful.

While legal advocacy is just one of many tools to effect change, exploring experts’ views of the legal context may be useful to other students at a time when law professors across the U.S. are warning about damaging efforts to chill student speech about the crisis. What follows is a non-comprehensive list of analyses, lawsuits, and other work from human rights attorneys and legal scholars addressing the ongoing reality in Palestine. This is not a definitive list–it is a starting point I offer in an attempt to inform conversations about available legal tools. The law review’s future work will attempt to add related scholarship, and it encourages submissions.

Item 1: “Gaza in Context”

“Israel pursues a settler-colonial project. It removes Palestinians and replaces them with Jewish Israelis. And it does so through dispossession, displacement, and concentration towards all Palestinians regardless of where they live or what legal jurisdiction governs their lives. Israel achieves its goals using civil law in Israel, martial law in the West Bank, a mix of martial and administrative law in East Jerusalem, and all-out warfare in the Gaza Strip.”

This 20-minute 2016 documentary, co-directed and co-written by human rights lawyer, associate professor at Rutgers University, and author Noura Erakat, offers historical and legal context to today’s crisis. It is available to stream for free on YouTube; its footnoted script is available here. Erakat emphasizes the need for a political solution to the crisis in her Oct. 13 interview with Boston Review.

Item 2: “The Harvard Law Review Refused to Run This Piece About Genocide in Gaza”

“Some may claim that the invocation of genocide, especially in Gaza, is fraught. But does one have to wait for a genocide to be successfully completed to name it? This logic contributes to the politics of denial. When it comes to Gaza, there is a sense of moral hypocrisy that undergirds Western epistemological approaches, one which mutes the ability to name the violence inflicted upon Palestinians. But naming injustice is crucial to claiming justice. If the international community takes its crimes seriously, then the discussion about the unfolding genocide in Gaza is not a matter of mere semantics.”

“The UN Genocide Convention defines the crime of genocide as certain acts ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ These acts include ‘killing members of a protected group’ or ‘causing serious bodily or mental harm’ or ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.’”

This Nov. 21 article in The Nation offers analysis from Rabea Eghbariah, a human rights attorney completing his doctoral studies at Harvard Law School.

Item 3: “More Than Genocide”

“Regardless of any legal question of genocide, Israel’s supporters find themselves tacitly condoning the ongoing slaughter of thousands of Palestinian civilians. A considerable portion of their publics understandably reject this outrageous state of affairs. They are unimpressed by legal hairsplitting about the [United Nations Convention on the Punishment and Prevention of Genocide] UNGC requirement that people are killed ‘as such,’ meaning solely on the grounds of their identity—the genocidal intent of destroying the enemy—rather than by the military logic of defeating them. For the fact is that whether Israel is committing genocide or erecting a new ‘iron wall’ of defense, masses of Palestinians are being killed and possibly expelled. It is a distinction without a difference for the victims.”

“Seen in this light, the protest movement’s allegation of genocide can be understood as a symptom of the ‘utter failure of international law in responding to war crimes and crimes against humanity (including apartheid),’ as legal scholar Itamar Mann has observed. The claim also reflects the ‘truth’ of the victim’s perspective. Since genocide is a synonym for the destruction of peoples, whether the killing and suppression of their culture is motivated by destruction ‘as such’ or by deterrence, the experience is the same: a destructive attack on a people, and not just random civilians. But the UNGC does not reflect the victim’s perspective. It protects the perpetrators: states that seek permanent security.”

This Nov. 14 Boston Review article by A. Dirk Moses, international relations professor at the City College of New York, editor of the Journal of Genocide Research, and author of the 2021 book The Problems of Genocide: Permanent Security and the Language of Transgression, digs into the contested term.

Item 4: “Palestine and the Limits of the Law”

“The problem here is that for those of us like myself, who would like to use the law as a way of bringing about change–and I had dreams when I went to law school of, you know, working in the human rights field and making the world a better place–you slam kind of hard into the realities of power, and the fact that sometimes power doesn’t listen even if you try to make a principled argument.” 

“So, for example, there is a law in the United States named after the senator who spearheaded it: The Leahy Law, which says that weapons sent abroad by the U.S. military to other countries’ militaries should not be used in the violations of human rights. That’s never been applied against the Israelis. Ever.”

In this public lecture on Nov. 7, Wadie Said, a professor at the University of Colorado School of Law, describes Palestine’s legal battles across decades of conflict. (Wadie Said is the son of the literary critic Edward Said, whom he references during the lecture.)

Item 5: “Palestinian Groups Ask ICC to Arrest Israeli PM Benjamin Netanyahu for War Crimes & Genocide in Gaza”

“And so, here we are pushing the [International Criminal Court] to either hold Israel to account in what is an ongoing genocide, where the leaders of it have told us very much that they have the specific intent to destroy a Palestinian people, in whole or in part, and demonstrated the specific underlying acts in order to effectuate it, or demonstrate for us that this is actually a moment where the ICC demonstrates . . . that it’s not effective, that it is actually part of punishing a Global South and letting Western countries move forward with impunity.”

On Nov. 10, Democracy Now interviewed Erakat about a lawsuit filed with the International Criminal Court on Nov. 7 that seeks to hold Israel accountable over the war in Gaza.

On her website, Erakat describes her 2019 book, Justice for Some: Law and the Question of Palestine, as narrating “the Palestinian struggle for freedom as told through the relationship between international law and politics during five critical junctures between 1917-2017 to better understand the emancipatory potential of law and to consider possible horizons for the future.”

Item 6: “Israel’s War in Gaza Is Not a Valid Act of Self-Defence in International Law”

“[A]pproaching Israel’s current military action in Gaza as if it is an isolated incident of the use of force, and asking whether Israel has a right to self-defence in international law justifying this action, is to fundamentally mischaracterize the situation. Israel’s current action is actually a re-configuration of the existing use of force it has exercised, in the form of the blockade (with episodic bombing and land incursions) and before that in its original boots-on-the-ground, and settlements, manifestation, adding new means and methods. To say that Israel has somehow a right to do this new, amplified form of an existing use of force in self-defence because of violent acts of resistance to the earlier form of the same use of force, even when such acts are illegal because they target civilians, and/or are indiscriminate attacks that risk harming civilians, and/or involve the kidnapping of civilians, is circular logic.”
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“None of this means that the deliberate targeting of civilians, or indiscriminate attacks that risk harming civilians, or the taking of civilian hostages, are legally justified; as indicated, these are illegal. But such illegal actions do not justify, legally, the continuation and, within this, the ratcheting up, of Israel’s use of force in the Gaza Strip and the West Bank, given that this use of force is illegal.”

In this Nov. 9 analysis, Ralph Wilde, a member of the Faculty of Laws, University College London, University of London, shares his perspective on various self-defense arguments.

Item 7: “What is the rule of proportionality, and is it being observed in the Israeli siege of Gaza?”

“Under [international humanitarian law], civilian objects – such as homes, apartment blocks, hospitals and schools – cannot be directly attacked. This is because they, unlike munitions factories and command and control centers, do not effectively contribute to military action.”

“There is a caveat, however. If enemy forces take up positions in these civilian structures, then they become military objectives and can be lawfully bombed if the raid would yield the attacking party a definite military advantage.”

“That said, the stipulation does not allow unlimited license to attack such structures. The civilians located in those buildings are not lawful targets. As such, they retain the benefits of what is known as “the rule of proportionality” as it relates to collateral civilian casualties – that is, deaths that are not intended by the attacking party but nonetheless result from their actions.”

In this Nov. 9 explainer, Robert Goldman, an expert on international humanitarian law at American University Washington College of Law, shares his insights on the “rule of proportionality” and the “laws of war.”

Item 8: “Palestinians Sue Biden for Failure to Prevent Genocide, Seek Emergency Order to Stop Military and Diplomatic Support for Israeli Government’s Assault on Gaza”

“The United States has been obligated, from the time it learned of the specter of genocide of the Palestinian people, to exercise its clear and considerable influence on Israel to prevent this grave crime from unfolding. The President and the Secretaries of State and Defense have not only been failing to uphold the country’s obligation to prevent a genocide, but have enabled the conditions for its development by providing unconditional military and diplomatic support – disavowing any constraint or “red lines” on Israel’s military campaign even in the face of numerous Israeli governmental statements reflecting a genocidal intent. Defendants have refused to even initiate internal processes to assess whether there is a genocide unfolding in Gaza, or to monitor how U.S. weapons are used there.”

In this lawsuit filed filed by the Center for Constitutional Rights in Northern California federal district court on Nov. 13, the organization alleges the U.S. is complicit in genocide, among other allegations. In a press release the same day, the CCR noted that courts have identified “the providing of weapons and other materials to the perpetrators of genocide as a form of complicity. To be culpable, the provider need not share the recipients’ genocidal intent.” CCR senior attorney Katherine Gallagher, CUNY Law Class of 2000, spoke to Democracy Now on Nov. 16 about the lawsuit’s demands and reasoning.

Item 9: “The UN Human Rights Council Tried to Silence Craig Mokhiber, He Resigned”

“As a human rights lawyer with more than three decades of experience in the field, I know well that the concept of genocide has often been subject to political abuse. But the current wholesale slaughter of the Palestinian people, rooted in an ethno-nationalist settler colonial ideology, in continuation of decades of their systematic persecution and purging, based entirely upon their status as Arabs, and coupled with explicit statements of intent by leaders in the Israeli government and military, leaves no room for doubt or debate. In Gaza, civilian homes, schools, churches, mosques, and medical institutions are wantonly attacked as thousands of civilians are massacred. In the West Bank, including occupied Jerusalem, homes are seized and reassigned based entirely on race, and violent settler pogroms are accompanied by Israeli military units. Across the land, Apartheid rules.”
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“Decades of distraction by the illusory and largely disingenuous promises of Oslo have diverted the Organization from its core duty to defend international law, international human rights, and the Charter itself. The mantra of the “two-state solution” has become an open joke in the corridors of the UN, both for its utter impossibility in fact, and for its total failure to account for the inalienable human rights of the Palestinian people. The so-called “Quartet” has become nothing more than a fig leaf for inaction and for subservience to a brutal status quo. The (US-scripted) deference to “agreements between the parties themselves” (in place of international law) was always a transparent slight-of-hand, designed to reinforce the power of Israel over the rights of the occupied and dispossessed Palestinians.”

In his Oct. 28 resignation letter to the New York Office of the High Commissioner for Human Rights at the United Nations, human rights attorney Craig Mokhiber (the Office’s former director) detailed criticisms and offered 10 “essential points” for the United Nations to regain its ability to meaningfully protect human rights and international law. Mokhiber’s Nov. 10 interview with the Foundation for Middle East Peace expands on some of his ideas.

Again, this is not a definitive list–it is a starting point I offer in an attempt to share perspectives from human rights attorneys and scholars to inform our ongoing conversations. I hope to encourage related work that expands on this list as time goes on.

Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.