ISRAEL OCCUPATION OF PALESTINE AND GAZZA MASSACRE WITHIN THE CONTEXT OF LAW OF WAR

*Prof. Dr. Ahmet YAMAN

Even though the phrase of “Gaza massacre” is used more often since the date of October 7, 2023, the history of Israel’s crimes of occupation and massacre on Palestinian lands dates back to much older times.  Moreover, this history goes back to older than the establishment of the State of Israel by Jewish National Council assembled in Tel Aviv on May 14, 1948 and led by David-Ben Gurion, in fact, to the 1850s.

Between the years of 1856 and 1860, the first Jewish settlement outside Jerusalem walls named Mishkenot Sha'ananim was established; afterwards other Jewish settlements were founded with the support of Baron Abraham Edmond Benjamin James de Rothschild (d. 1934) who was one of the most avid supporters of Zionism. Over time, thousands of Jews from all over the world were brought to Palestine land with the great effort of Zionists who took the opportunity which arose thanks to the winners of the First World War; consequently, nearly a million Palestinian were forced to immigrate in 1940s. Later, the Palestinian land was divided between Jews and the real owners Muslim Arabs with a Plan adopted by the UN General Assembly on 29 November 1947. Afterwards, Zionists increased the terror attacks and committed mass murders, in other words, massacres. According to recordings, Zionist terrorists who were the members of Irgun and Lehi paramilitary organizations attacked the village of Deir Yassin near Jerusalem on April 9, 1948, and killed more than 100 civilians whereas the Alexandroni Brigade of Israel army attacked the village of Tantura near Haifa on the night of 22–23 May 1948 and killed more than 200 civilians. The murders of Muslims, civilian massacres and land invasions in Palestine continued to increase until today (1).
 

(1) See Hasan Karaköse, “Filistin ve Kudüs Meselesine Genel Bir Bakış(XIX. Yüzyılın Ortasından XX. Yüzyıl Ortalarına Kadar)”, Ahi Evran Üniversitesi Sosyal Bilimler Enstitüsü Dergisi (AEÜSBED), 2018, c. 4/2, p. 150-165; Lutfullah Karaman, “Filistin”, TDV İslâm Ansiklopedisi, https://islamansiklopedisi.org.tr/filistin (24.02.2024);https://www.bbc.com/turkce/haberler-dunya-44128837 (24.02.2024); Derin Tarih, sy 140 (Kasım 2023), p. 42 vd..

So much so that Amnesty International published a report titled “Israel’s apartheid against Palestinians: Cruel system of domination and crime against humanity” on February 1, 2022, and in this report, the Israel’s crimes against Palestine were defined as “apartheid” which means a systematic and racist discrimination and a genocide, by extension (2). The events on 7 October 2023 were the consequence of these massacres and invasions.

All of these attacks, invasions, occupations and massacres of Israel and Zionist ideology are fundamentally against the international law. In addition to the fact that it is completely unlawful to establish an artificial state by occupying Palestine land and, since the fundamental problem started at this point, the real owners of these lands have the right to protect themselves and their values, it compels us to focus on the following aspect as the actual state of Israel settlement is recognized by nearly all countries under the United Nations Resolutions. Within the framework of the hereby compulsion, it is possible to suggest these arguments as follows:

The aggressive and inhumane attitude of Israel since 1948 is radically against the rules of current international law (public international law), let alone Islamic law. Namely (3);

(2) https://www.amnesty.org/en/documents/mde15/5141/2022/en/ (24.02.2024).

 (3) For the information see Charles Crozat, Devletler Umumi HukukuI-II, trc: Çelik, Edip F., Istanbul 1950; Edip F Çelik, Milletlerarası Hukuk I-II, Istanbul 1987; Ca’fer Abdüsselam, Kavâidü’l-alâkâti’d-devliyye fi’l-kânûni’d-devlî ve fi’ş-Şerî’ati’l-İslâmiyye, Kahire 1981; Hüseyin Pazarcı, Uluslararası Hukuk Dersleri I, Ankara 1989;Bozkurt, Enver, Türkiye’nin Uluslararası Hukuk Mevzuatı, Ankara 1992; Ahmet Yaman, İslam Devletler Hukuku (Uluslararası ilişkiler), Ankara 2020; M. Yasin Aslan, “Savaş Hukukunun Temel Prensipleri”, Türkiye Barolar Birliği Dergisi, issue 79 (2008), pp. 235-274.

1. The Covenant of the League of Nations which was accepted after the First World War, enforced that there will be no resort to war unless the matter is submitted either to arbitration or judicial settlement or to enquiry by the Council; it also explicitly declared that no member should resort to war for a settlement of an international dispute and if does so, “it shall ipso facto be deemed to have committed an act of war” according to the covenant adopted in 24 September 1927. The Geneva Protocol which was later signed defines the aggressor as the one that avoids the submission of the matter to arbitration or judicial settlement or violates the covenant despite accepting the judicial decision. According to these statements, Israel’s actions are an international crime.
    
2. The Kellogg–Briand Pact or Pact of Paris which was signed by fifteen states including Turkey on 27 August 1928, condemn recourse to war for the solution of international controversies except for the right of self-defense and not obliging the nation to enforce it by taking action against those who violated it. Within this context, it is confirmed that the occupying Israel’s acts of expansion of its lands, creation of Jewish settlements by expelling or eliminating the real owners are unlawful.
    
3. The Charter of United Nations bearing the date of 1945 starts with “We the peoples of the united nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.” and its several articles prohibit any threat or use of violence against another state’s territorial integrity or political freedom in international relations. Israel’s acts are a clear violation of these prohibitions. Unfortunately, United Nations, particularly Security Council, took on a protective role of these violations rather than put an end to them.
    
4. According to the Article 51 of the same charter which is based on the principle of the sovereign equality of all nations, if an armed attack occurs against a Member of the United Nations, it has the inherent right of individual or collective self-defense. Palestinians whose lands have been systematically invaded since 1948 and the State of Palestine which is recognized by 138 states and a non-member observer state in the UN reserve the right of self-defense as per this article.
    
5. Not only after 7 October 2023, but also since 1947, Israel continues to constantly break these following international treaties with its unlawful and inhumane actions:

• The Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, adopted in 1864,
• The Saint Petersburg Declaration of 1868 which regulates war methods and tools,
• The Hague Conventions of 1899 respecting the laws and customs of war on land,
• 1906 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field,
• The Hague Conventions of 1907 about laws of war,
• The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, adopted in 1929,
• The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments dated 1935,
• The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,
• The 1976 UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD),
• The 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.

Israel which does not follow any of these abovementioned fundamental international treaties, as an evident for this fact, stood trial on 29 December 2023 in front of the The International Court of Justice (ICJ) which is the highest judicial organ of United Nations. The case was brought by the Republic of South Africa which faced with similar oppressions in its own history, claiming that Israel violates the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. The International Court of Justice took the case and ordered Israel to take all necessary measures to prevent acts defined in Article 2 of the Genocide Convention, to prevent, hinder, and punish those calling for genocide against Palestinians in Gaza, to eliminate adverse living conditions by providing essential services and humanitarian aid, and to take effective measures to prevent the destruction of evidence showing the violation of the Genocide Convention against Palestinians and also, to submit a report on all the measures it has taken within one month from the date of the decision (4).

Despite of the fact that it was not a final decision, the present ruling revealed that Israel has committed the crime of genocide. United Nations Security Council Resolution 242 adopted on November 22, 1967, proves that Israel is currently an occupying state. The resolution which was sponsored by United Kingdom and adopted under Chapter VI of the UN Charter called for “a just and lasting peace in the Middle East”; and in order for that to happen, it stated the need for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict (Six-Day War in 1967)” and the “respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area (5).

While this is the situation within the context of positive international law which is recognized by international community, how can the situation be described within the context of Islamic law?

According to the majority of Islamic law experts, the essential reason for war is hostile attitude and not allowing the right to freedom of religion. That is to say, the fundamental reason for war is actual hostility towards Islam and Muslims and the restriction on freedom of proselytizing and living Islam. In addition to the several verses of the Holy Quran, specifically the first verse that allows for war by clearly stating the reason for war as the enemy’s attack on Muslims and the expulsion from their homeland (6), many verses which carry this message can be given as such: “Fight in the way of Allah those who fight against you but do not transgress”; “Fight against them ˹if they persecute you˺ until there is no more persecution, and ˹your˺ devotion will be to Allah ˹alone˺. If they stop ˹persecuting you˺, let there be no hostility except against the aggressors (7) ; “And fight the polytheists together as they fight together against you”(8); “Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes - from being righteous toward them and acting justly toward them […] Allah only forbids you from those who fight you because of religion and expel you from your homes and aid in your expulsion - [forbids] that you make allies of them. And whoever makes allies of them, then it is those who are the wrongdoers (9).

(4) https://www.aa.com.tr/tr/dunya/uluslararasi-adalet-divaninin-karari-israil-i-hem-sevindirdi-hem-kizdirdi/3120287 (24.02.2024).

(5) Zühal Çalık Topuz ve Mohammad Arafat, “Birleşmiş Milletler Güvenlik Konseyi Kararlarının Filistin-İsrail Barış Sürecine Etkisi”, Ankara Üniversitesi Siyasal Bilgiler Dergisi Erken Görünüm, p. 5 (https://sbfdergi.ankara.edu.tr/dergi/erken_gorunum/1949---Zuhal-Calik-Topuz---Mohammad-Arafat.pdf) (24.02.2024).

(6) Al-Hajj 22/39-40.

(7) Al-Baqarah 2/190, 193.

(8) At-Tawbah9/36.

(9) Al-Mumtahanah 60/8-9.

In accordance with the abovementioned verses, only rightful wars are those that have the purpose of self-defense​​​​​​​ (10), are a continuation of a war interrupted without a truce, start when the peace treaty is broken by the enemy​​​​​​​ (11), are helpful to Muslims were wronged​​​​​​​ (12), are participated under the obligation of an international treaty​​​​​​​ (13), are for introducing Islam to other people and providing freedom of religion and conscience by extension (14) as the other type of wars are rendered as an attempt of corruption on earth and are condemned​​​​​​​ (15). Wars which carry the stated legitimacy are required to be finished and not cross the line​​​​​​​ (16).

Within this framework, we can arrive this conclusion that war is legitimate for Palestine as they have the right to self-defense and fighting is the only way for defense considering the fact that their lands are invaded; Palestinian Muslims are not given right to live let alone their fundamental human rights; their values are constantly insulted; they are regularly oppressed due to their beliefs; their children, women and sick are massacred. In the event of a war between Muslims in one region or country and a cruel enemy such as this, it falls under the obligation of other Muslims. Blasphemy is one nation as Muslims are one ummah (community).

The verse of “And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men, women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from Yourself a protector and appoint for us from Yourself a helper"? (17) displays us that the oppressed cannot be left helpless and thus, a fight should be taken into consideration if needed. Let us repeat, it is our duty to make an actual attempt to save Muslims who are oppressed, whose lands are occupied and whose fundamental rights are taken from. This actual attempt might be a war if it is convenient for the military, economic conditions and international conjuncture. As our prophet Muhammad (peace be upon him) said: “You see the believers as regards their being merciful among themselves and showing love among themselves and being kind, resembling one body, so that, if any part of the body is not well then the whole body shares the sleeplessness (insomnia) and fever with it (18).”;“A Muslim is a brother of another Muslim, so he should not oppress him, nor should he hand him over to an oppressor. Whoever fulfilled the needs of his brother, Allah will fulfill his needs; whoever brought his (Muslim) brother out of a discomfort, Allah will bring him out of the discomforts of the Day of Resurrection, and whoever screened a Muslim, Allah will screen him on the Day of Resurrection (19).”

Let us finish this essay with a prophet prayer: “O Allah! Save the weak faithful believers! (20)”
 

(10) Al-Baqarah 2/190, 194; Al-Hajj 22/39; Ash-Shuraa 42/41.

(11) At-Tawbah 9/12-13.

(12) An-Nisa 4/75; Al-Anfal 8/72.

(13) Şâfiî, el-Üm, Beyrut 1973, IV, 187.

(14) Ali 'Imran 3/110; Al-Ma'idah 5/67; At-Tawbah 9/41; Al-Hajj 22/78.

(15) Al-Baqarah 2/205; Al-Ma'idah 5/65; Muhammad 47/22; Buhârî, “Cihâd”, 15; Müslim, “İmâre”, 149; Ebû Dâvûd, “Cihâd”, 25.

(16) Ahmet Yaman, “Savaş”, TDV İslâm Ansiklopedisi, https://islamansiklopedisi.org.tr/savas#1 (24.02.2024).

(17) An-Nisa 4/75.

(18) Müslim, “Birr” 66.

(19) Müslim, “Birr” 58; Tirmizî, “Hudud” 3.

(20) Buharî, “İstiskâ”, 15; “Tefsir”, 4/21, “Ezan”, 128; Müslim, “Mesâcid” 294-295.

*NEU Faculty of Theology