Introduction
Israel has seen four inconclusive Knesset elections in the past two years. In April 2019, struggling to rally right-wing voters, Israeli Prime Minister Benjamin Netanyahu vowed to annex parts of the West Bank in a throwaway remark. This suggestion was later bolstered by the Trump administration’s seeming openness to the provocative move, and reversal of decades of American policy on the issue. Supporters of annexation viewed Trump’s January 2020 ‘Middle East Peace Plan’ as further momentum for the cause. Declaring the intention to altogether annex an already occupied territory under international law seemed steep. This had prompted us to write for Oxford Politics, arguing for the constructive re-animation of the moribund ‘Uniting for Peace’ resolution [General Assembly Resolution 377(V)] to allow the international community to act on the issue by bypassing the diplomatic cover provided by the United States of America (US) in the United Nations Security Council (UNSC). The annexation plan was ultimately not executed, officially due to the COVID-19 pandemic and possibly due to criticism coming even from some of Israel’s staunchest allies. Or perhaps, under pressure from its allies, even the US found it difficult to condone annexation in such definitive terms.
Analysts have explained the recent escalation in Gaza based on two immediate provocations: the Sheikh Jarrah expulsions and the Al-Aqsa compound clashes. In this article, we situate the current violence in a series of events over the past few years. We then argue how Israel’s change in rhetoric in this particular crisis – from a blatant breach of international law to a legal justification for violence, even if tenuous – has allowed the US to deflect international criticism and continue to shield Israel. Lastly, we address certain counterarguments that may be raised to our analysis.
Situating the Present Conflict
Inconclusive Elections
The Israeli elections in April 2019 provided no party with a clear majority, and coalition talks had failed. Plans for annexation were re-invigorated by Netanyahu in the run-up to the September 2019 elections. The political timing of the announcements was designed to cater to voter interests. After the failure of any party to form government after the September 2020 elections, the plan was placed on the agenda of the new Netanyahu-led emergency government formed after the third elections in March 2020. A deal between the coalition allowed proposals to move ahead with the annexation beginning 1 July 2020.
Middle East Peace Plan
In January 2020, the Middle East Peace Plan was announced by the then-US President Donald Trump alongside PM Netanyahu. The plan was denounced by Palestine as a “conspiracy” and received severe international criticism as being one-sided. This was because, although the plan purported to propagate a two-state solution, it encumbered Palestine with obligations and hardly challenged the present vision of Israel on the demarcation of boundaries. It promulgated that all territory to the west of the Jordan River, which would include the West Bank, belongs to Israel. Subsequently, the Americans also participated in a joint committee with Israel to discuss plans for annexation, which appeared imminent.
COVID-19 Pandemic and International Pressure
However, the COVID-19 situation officially delayed the plans of the annexation, with coalition partners wanting the government to focus on the virus before proceeding with the planned annexation. Internationally, Israel faced continuous international pressure with regards to its plans for annexation. At least 12 members of the UNSC and other major States, with the obvious exception of the US, condemned the planned move. The rising tensions in the Middle East in response to the plans also escalated the stakes involved. The cumulative situation led to the postponement, if not cancellation of the plans.
Abraham Accords
Subsequently, bilateral deals were negotiated for the Middle East to normalize diplomatic ties and formalize economic relations. These deals, jointly termed the Abraham Accords, were a set of agreements arrived at between Israel, the United Arab Emirates (UAE) and Bahrain (possibly allying over the threat from Iran), with the US acting as a facilitator to the agreements. Further normalization agreements were signed by Israel with Sudan and Morocco, respectively.
However, these deals were not representative of a major shift in relations in the region, as there had for long been silent deals and ties of Israel with Bahrain and UAE prior to the Abraham Accords. Saudi Arabia itself has been forthcoming in reaching an agreement with Israel. In fact, the present conflict has tangled the strategic interests of these Arab States in terms of their long-term cooperation and military deals with Israel on the one hand and Arab solidarity with Palestine on the other. The response of these Arab States to the current conflict has been diluted in terms of the language used and action threatened. One definite loser out of the deals brokered by Donald Trump seems to be Palestine. This is because the Accords were seen to be a weakening, if not a broader abandonment, of Arab support for the Palestinian cause. Concerning the annexation, Arab States have hoped that Israel would not want to disrupt their newfound amity by raking up by the proposed annexation.
Annexation in Abeyance?
The most important factor in putting annexation in abeyance has been the decrease in the power amassed by Netanyahu and his failure to form a majority government. The announcement of annexation was to solidify the status of the Israeli settlements in the West Bank, an objective of the far-right. However, the recent elections have demonstrated the necessity to soften the hardline stance to form coalitions inclusive of Israeli Arab parties as well, which have been protesting and lobbying against the annexation. This was compounded by the failed re-election campaign of Netanyahu’s supportive Republican-ally in the US and the onset of Joe Biden’s presidency who vowed to reverse Trump’s ‘undercutting of peace.’ While the US continues to stand by Israel in the present conflict supporting the right to self-defense, the Trump administration had postponed any American approval to the annexation plans with senior adviser Jared Kushner focusing on peace agreements in the region. Other factors in delaying annexation may have included – the unpredictable fallout from the move, erosion of Israel’s standing for a mere symbolic gesture, and damaging prospects of Arab alliances and peace in the already volatile region.
Fourth Inconclusive Election and a New Government
The emergency government formed in March 2020 collapsed in December 2020. This triggered a fourth election in March 2021. Currently, Netanyahu has failed to form government, and coalition talks are ongoing. Popular opinion was that the country would be heading for a fifth election. Given this political context, the question arises whether the present escalation was accidental? Netanyahu’s rivals scarcely think so. Utilizing force for self-serving political motivations is anyway not unheard of in Israeli politics. We do not suggest that Netanyahu anticipated, calculated or orchestrated the Hamas response, but domestic provocations were certainly nurtured. Regardless, it seemed likely that he would benefit from the present escalation.
However, half an hour before the deadline to form a new government was to expire, eight parties across the spectrum of ideologies came together to dislodge Netanyahu from power. This coalition is based on a power-sharing arrangement between right-wing leader Naftali Bennett and centrist Yair Lapid. Bennett will continue to be prime minister for the next two years, post which Yair Lapid will take over the role.
The new coalition government is based on an agreement between eight ideologically non-aligned members. Left-wing Israeli parties and an independent Arab party, Raam, form part of this coalition along with the right-wing parties that Bennett represents. The probability of instability in this government is far from unlikely. Just days into the creation of the new government, a rightist Jewish march was permitted through East Jerusalem, a move which received aggressive opposition from Palestinian leaders, threats of retaliation from Hamas and opposition from the leftists and Arabs in the coalitions. These responses were ignored and the march was allowed. Hamas carried out its threat of retaliation march by releasing incendiary balloons into Israel. The new government, in response, carried out air strikes against Hamas facilities in Gaza. The deduction that follows from the change in government is that these parties in Israel aim to set aside their differences, primarily to displace Netanyahu, and focus on bipartisan agendas such as the budget and the recovery of the country in the aftermath of the COVID-19 pandemic. Whether Bennett and the new government survive through the ideological differences and agendas is a question left to be seen.
Changing Narrative
The change in direction (whether temporary or not) that was adopted by Netanyahu, in moving from annexation to an aggressive self-defensive stand was not accidental. This narrative shift looked to repackage an indefensible transgression of international law to a murky area of law where historically, geopolitical interests have allowed for expansionist and conservative interpretations of the law. Make no mistake, the (political) objectives both times were to mobilize the right by igniting nationalist passions for electoral traction, distracting from domestic issues including indictment of the PM for corruption, and cultivating the image of a hero for the people. The difference is that Israel, backed by the US, utilized the language of the law to justify its actions on the international stage, while probably reaping domestic political gain for Netanyahu. In any case, actual violence over the threat of violence is a far more effective electoral tool, especially for politicians battling desperately for their political survival. This is because people tend to rally behind existing governments in the face of threats.
Existential Threat?
Israel’s repeated assertion of the right to self-defense, which has been viewed to be a weaponization of international law, is based on a perceived threat to its continuous existence. This has enabled it to receive fervent support from its allies. Is Israel truly exceptional due to its perpetual existential threat? Roger Cohen argued that the Israeli exceptionalism rhetoric is facile and far from accurate today. According to him, Israel could benefit from a ‘more prosaic, realistic self-image,’ approaching the issue as one of different balance of powers and stability, not existential threats or race wars. Moreover, commentators in the past have suggested that Israel is facing a perplexing paradox – as it grows stronger, its legitimacy is melting away. In other words, its right to self-defense is increasingly controversial. Questions as to the right of self-defense operating in a colonial rubric are also being raised. These concerns are not out of place, given that Israel has among the strongest militaries in the region and a nuclear stockpile – incomparable to capabilities of Palestine or armed group Hamas. However, Israel’s military might does not in itself mitigate its right to self-defence against the threat posed to its civilians by Hamas.
Alternatively, were Israel to lawfully exercise its right to self-defense, its defensive action would have had to be restricted in application. There is no contesting that the attacks launched by Hamas have been in violation of international law in terms of targeting civilian areas. However, this does not in turn merit a right to indiscriminate self-defense. Lawful self-defense is conditioned on proportionality as a customary international law requirement. Further, invoking self-defense does not eliminate the customary humanitarian law principles such as distinguishing between military and civilian objects, which are not optional in nature. The violation of these principles serves to weaken an inherently dodgy claim of the right to self-defense (see generally Goldstone Report, 2009 and Commission of Inquiry Report, 2014 for possible war crimes and crimes against humanity on both sides).
Further, it is indeed true that the right to self-defense has been invoked a number of times by Israel. Perhaps what distinguishes the instant situation is the political context. Failed attempts at forming government and a desperate Netanyahu like never-before. His attempts to tweak Israel’s electoral system to enhance his prospects signal the lengths he may be willing to go to for self-preservation.
Conclusion
There is no doubt that Israel is operating under the historical assurance of impunity. But this time, it may have surpassed its previous actions. Unwavering American support may be floundering for the Jewish State. The David (Israel) and Goliath (Arabs) narrative has stumbled, with Israel’s strength and prowess well seen and identified. A major difference in the impunity paradigm is the day and age it operates in today. With social media documenting facts on a minute level, youth across the West and especially in the US has risen in support of Palestine. Politicians in the US, ranging from youth-icon Alexandra Ocasio-Cortez to veteran progressive Bernie Sanders have spoken out against Israel. Perhaps support for the Palestinian cause coincides with the oppression faced by the minorities in the US, especially with the Black Lives Matter protests over the course of the past year, which has given rise to a sentiment of relatability. While the global attitude towards Israeli exceptionalism may be shifting, it would currently be rather far-fetched to imagine a change where it matters most, in US policy. Indeed, one thing is for certain – Netanyahu has on occasion utilized the threat of force for electoral objectives, whether domestic or otherwise. The present escalation was no different, however unsuccessful.
Pranav Agarwal is a law student at Rajiv Gandhi National University of Law, Punjab. He currently works as a Commissioning Editor at E-International Relations. He has formerly interned at Amnesty International India and the Commonwealth Human Rights Initiative.
Yagnesh Sharma is a law student at Maharashtra National Law University, Mumbai. He currently works as a Commissioning Editor at E-International Relations. He has formerly interned at Indian law firms like L&L Partners and Keystone Partners.