The Disastrous Relationship Among Israel, Palestinians and the U.N.: Interview with Aslı Ü. Bâli on May 17, 2024 (July 2024)

Aslı Bâli, professor at Yale Law School specializing in international law, articulates a number of key points about international law and the context it provides when studying Israel/Palestine.

Ezra Klein, New York Times, introduces the interview by way of reference to the May 10th U.N. General Assembly vote to recognize Palestine as a full member of the U.N. While this is a singular moment in the U.N.’s recognition of Palestine, Klein reminds that this will only happen if the Security Council approves the General Assembly’s resolution.

According to Bâli, the deterrent effect of international law is quite different for a superpower like the U.S. which is "the author of most of the rules" than for "an average-sized country with an average military capacity and an average economy." U.S. exceptionalism—legal immunity in practice, i.e., being above the law—is an important but not unsurprising aspect of the international order in the real world of international politics. This seems obvious, but as Bâli notes, we do tend to project from the U.S. perspective to the rest of the world, i.e., assume that the rest of the world flouts the U.N.’s authority as well. She, however, is inclined to believe that international law, in the main, does tend to dissuade countries from acting as if sanctions or international adjudication were of no consequence. Most countries will weigh the international fallout of breaching international norms.

Bâli argues that the apparent exceptions of Yemen and Syria as violators of international law stem from the fact that there are external actors, e.g., the U.S. in Yemen and Russia in Syria, who wield considerable power over political and military realities and, as holders of U.N. Security Council veto, exercise their own disregard of international law. Responding to the cases of Ethiopia, Eritrea and the African Great Lakes region, she argues that their exceptionality is attributable to their being too inconsequential to U.S. strategic interests than countries in Europe or the Middle East and thus hardly worth the attention of aggressive U.S. foreign policy.

Then, with respect to Yugoslavia and Rwanda in the 1990s, Bâli holds that after its debacle in Somalia in the early 1990s, the U.S., though the sole superpower in what was a unipolar world at the time, was reluctant to engage in another unmanageable conflict zone. Eventually though, under the guise of NATO, the U.S. did intervene in the Balkans with the 1999 bombing campaign launched against Yugoslavia.

According to Bâli, the post-WWII international order was established to prioritize peace and security over justice, as WWII had brought about the deaths of upwards of 30 million people and avoiding a 3rd world war that would likely result in similar catastrophic levels of death and destruction was paramount. This is a cynical view as it is premised on the notions that deadly violence and injustice are the primary realistic alternatives in international relations. She notes that the Security Council veto was given to the five permanent members of the Council, the victors in WWII, to ensure that the Great Powers at the time were all locked into the U.N. and the architecture of the new world order, so as to avoid such a 3rd world war. Again, for Bâli, the U.N.’s principal function is to work towards peace and security, justice among large and small states being desirable but nevertheless more negotiable. While not cited in her interview comments, the Cold War offers abundant evidence of the prioritization of peace and security at the expense of justice, e.g., human rights and democratic institutions.

One noteworthy implication of this ranking of international outcomes is that the Great Powers (the U.N. Security Council’s five permanent members) and potentially their client states are given wide latitude to go rogue on occasion. In other words, they are exempt from injustices committed as long as they act in a manner that does not threaten inciting a war among the Great Powers. This nearly happened during the Cuban Missile Crisis in 1962 when the U.S. and the U.S.S.R. faced off over Soviet deployment of nuclear-armed missiles. In the world of 2024, the U.S. and Russia are tiptoeing near the abyss in the Russia-Ukraine War. There continues to be a tacit understanding between the U.S. and Russia that the U.S. financing and arming of Ukraine is not an act of war—not yet. In Israel/Palestine, it appears unlikely that any of the Great Powers will set off the trip wire that would expand the War in Gaza to a global conflict. A reasonable inference from Bâli’s remarks in the interview is that Israel is essentially a client state of the U.S. and enjoys considerable immunity—aside from verbal and written criticisms—from the broader global community on account of its special relationship with the U.S.

Regarding the nexus between the international order and the creation of Israel, Bâli states that the post-WWI world of fragmenting empires created the need for Europe to manage the lands of the former Ottoman Empire as these territories were not considered capable of self-government at the time—this being the consensus among the victors of WWII.

When Britain abandoned the mandate and left the U.N. to take responsibility for Palestine, this set the stage for Israel/Palestine becoming an example of the U.N. priority of peace over justice. In fact, Bâli maintains that Britain's failure in administering the Palestine Mandate created the conditions that led to the rejection of the U.N. partition plan and the ensuing war that gave birth to the state of Israel. She also claims that the U.N. was never committed to a successful partition that would result in two sovereign homelands—U.N. forces were never deployed to the Mandate territory to enforce the partition—and she suggests that the 'game' was rigged from the beginning by the extant rules of the international order pre-WWII, which essentially justified European colonialism in what was to become known as the Third World and subsequently the Global South. The rules of the ‘game’ reserved decision-making for the various European metropoles and thus denied self-determination and even autonomy.

Bâli contends that Israel and South Africa were the two countries where decolonization post-WWII dragged on the longest and, with apartheid ended in South Africa, she considers Israel to be the last holdout for decolonization. Here, she observes that according to the U.S. narrative, decolonization is complete, an assessment with which she is in disagreement. And she finds that the U.S. narrative is also not accepted in the countries of the Global South that have themselves emerged from their colonial status as self-governing states. She concludes that support for Palestine from the Global South is largely based on a competing narrative that is rejected in the U.S. and of course Israel.

Concerning the Israeli sense that it has been unfairly singled out by the U.N. for negative resolutions, Bâli points out that Israel's actions in the post-WWII international order are indeed held to a higher standard than that of European colonizing countries prior to the post-WWII world order. But, she adds, Israel is operating in a different international regime than were the European countries. International law and the international order after WWII marked a decisive break from the pre-war world order. What Bâli fails to discuss though is whether the current global order would be sustainable if any of the five Great Powers from 1945 were held to the same standards as Israel. This leads to the view that the Israeli claim of Western hypocrisy cannot be dismissed so easily.

Regarding Israel's response to 10/7, Bâli believes that Israel has acted wrongly in the way it is prosecuting the war in Gaza. In addition to that, in her view, Israel failed to provide its citizens with the fundamental right to security. Furthermore, she regards Israel's goal of eliminating Hamas to be not only unrealistic but also dangerous. Here, though highly critical of U.S. foreign policy in West Asia post-9/11, she does present the U.S. war in Iraq in a relatively better light, recognizing that the U.S. was never committed to the extermination of Iraqi men but rather to the decapitation of the Iraqi leadership and the preservation of the administrative infrastructure for the ‘day after.’ She also contrasts the language of war used by Ukraine and Russia with the annihilation rhetoric of senior officials in the Israeli government. Israel, in its war with Hamas, is thus presented as an outlier among nations in the manner in which it wages war.

Klein brings up the point that while in March the U.S. abstained instead of vetoing the latest U.N. Security Council ceasefire resolution, the U.S. nevertheless was quick to declare the resolution nonbinding. Here, Bâli notes that there is precedent in the U.S. decision to call the early resolutions against South Africa 'nonbinding,' then she adds that it was pressure from the international community, particularly as manifested in the General Assembly’s overwhelming support for sanctions against South Africa, that tipped the scales. She submits that it was pressure from countries outside the U.N. Security Council’s permanent members who eventually caused the U.S., South Africa's last Great Power supporter, to change course. It is worth bearing in mind that on June 10^th, about a month after this interview aired, the U.S. voted in favour of the resolution U.N. Security Council that called for a ceasefire in Gaza. This event appears to confirm her confident belief in the power and influence of smaller, less powerful states when exercised in concert.

With respect to whether Israel has committed war crimes, Bâli states that "blocking humanitarian assistance, including food, medicine, fuel, water treatment, hospitals” constitutes the best evidence of Israeli war crimes. She adds that

[S]tatements that have been made on the record by Israeli military authorities and IDF spokespeople, together with the empirical record of enormous destruction of all civilian infrastructure in Gaza . . . make it relatively more straightforward than in other contexts to establish that the war crime of indiscriminate bombardment of civilian areas has occurred.

Furthermore, Bâli rejects the Israeli ‘human shields’ argument, maintaining that dual use targets cannot be treated as the equivalent of military targets.

It’s not simply that you warn a population of an attack, it’s that you provide them a meaningful opportunity to be evacuated from an area. You offer them safe passage, and you enable them to travel to somewhere where they will be safe.

A final thoughtful point that Bâli voices is that

[The laws of war] are not designed primarily for ex-post accountability and to be used in an international criminal setting. They’re designed for ex-ante incorporation in the military manuals and books and rules that govern armed forces, how they’re trained and what they’re told they can or can’t do."

In her view, the Israeli military has not been properly trained to follow international humanitarian law as it pertains to war.

Professor Bâli expresses assessments that neither the Netanyahu government in Israel nor the Biden Administration in the U.S. would accept. With the intransigent Netanyahu government, she has little or no agreement, but she considers the evolving view in the White House more favourably, though the American position is still too moderate for the reality in Palestine/Israel. Presumably, she would be more sympathetic to those analysts and scholars who have recently advanced the notion that the actual situation in Israel/Palestine is already a one state reality, where all the cards are held by one player—the State of Israel.