The Legal Fallout of Gaza: An Interview with UN Special Rapporteur Ben Saul

Professor Ben Saul is the UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism and holds the Challis Chair of International Law at the University of Sydney. He has taught at Harvard, Oxford, and other global institutions, and he has been a visiting scholar at prestigious centers such as the Max Planck Institute. Among the 20 books and over 100 articles he has authored, his key works include Defining Terrorism in International Law and The Oxford Guide to International Humanitarian Law. He has advised the UN, governments, and NGOs, and has worked on counter-terrorism with UN bodies.

In 2022, the number of people forcibly displaced due to conflict, violence, and human rights violations surpassed 100 million. With this number continuing to grow, how would you assess the current global state of human rights?

There are huge pressures and strains on the protection of human rights globally, both in armed conflicts and situations of emergency—including counter-terrorism, but more broadly in societies at peace [as well]. There’s a lot of backsliding on the protection of human rights. There’s increasing authoritarianism in a number of countries, and the geopolitical situation currently—with the conflict involving Russia and Ukraine [and] the politics of the war[s] in the Middle East—[is] really undermining multilateral human rights protections and systems. I encourage all governments to contribute more positively and constructively to the protection of human rights globally, including by criticizing [their] friends and allies when they violate human rights.

Last Thursday [on October 10, 2024], Israeli forces committed a strike on Beirut that killed 22 people. A recent Hamas drone attack [on October 13, 2024] has also recently killed four Israeli soldiers in a retaliatory attack. How have both sides violated international law in this conflict, and which violations do you consider the most serious?

Both sides have committed very serious violations of international humanitarian law, including a whole host of war crimes, attracting individual criminal responsibility since 7 October last year. It starts with Hamas committing a series of war crimes, like murder, hostage taking, attacks on civilians, launching indiscriminate rocket[s], torture, [and] mistreatment of the dead. All of those things are war crimes, and some of them are crimes against humanity under international law as well.

Israel’s response, unfortunately, in some ways—like the US response immediately after 9/11—was a massive overreaction and itself has involved really serious violations of international law. Of course, Israel has to protect its people from attacks on civilians, like those that Hamas committed. From the early days of the war, it became apparent that Israel wasn't going to play by the rules. [They] immediately start[ed] denying access to humanitarian relief. Starvation is a war crime if it's deliberately perpetrated against civilians. Over the past year, Israel has not done enough to enable humanitarian relief. In the last few weeks, almost no aid has gone into the north of Gaza, which is taking it to a new [extreme].

In terms of the most serious Israeli violations, [there is] prolific evidence of both indiscriminate attacks—launching attacks which fail to distinguish between civilians who are protected and legitimate military targets, particularly by using high explosive munitions bombs in densely populated urban areas where the nature of those weapons can't distinguish as required by [international law]—and launching disproportionate attacks. That means attacks expected [to] cause excessive civilian casualties. I think there's some evidence of deliberate attacks on civilians and civilian objects as well.

It's not just Gaza; it's also what's going on in the West Bank and the treatment of prisoners in Israeli military prisons, some of which is clearly torture and inhuman[e] treatment, [including] conditions of detention, mistreatment of dead bodies, [and] outrages on personal dignity. There's a whole host [of violations for which] the International Criminal Court prosecutor is seeking arrest warrants for both Hamas and Israeli leaders. Lots of UN reports, including the Commission of Inquiry on The Occupied Territories, have documented these crimes on both sides, so all states have an interest in enforcing humanitarian law and in investigating and prosecuting any of these crimes [under universal jurisdiction].

In July, the International Court of Justice (ICJ) issued an advisory opinion stating that Israel’s actions constitute breaches of international law related to racial segregation and apartheid. What role do you think international law and the global community should play in holding states accountable for these violations?

The positive news is that there has been a mobilization of legal tools to bring pressure to bear on both sides and to hold them accountable for violations. [There are] significant votes in the General Assembly condemning Israeli violations and legal actions launched in the International Court of Justice, including a case concerning genocide, a case on arms transfers, [and] an advisory opinion on the larger legal issues underlying the situation. Lots of countries have stopped exporting weapons to Israel. It's only really two countries that continue to export weapons in a major way: the United States and Germany, which account for 99 percent of arms exports. There have been actions in national courts of various kinds, [and] efforts [by] the UN Human Rights Council.

Of course, the negative is the Security Council is paralyzed because the United States is essentially shielding Israel from any serious consequences. The Security Council is the only part of the United Nations that has binding powers to force states to do things, and if the U.S. is threatening to exercise its veto power, the Council can't do very much, and that's a serious indictment on the United States for not doing its job and enforcing international peace and security.

[The United States is], in my view, violating its own obligations under humanitarian law not to export weapons to a state where there's a serious risk that those weapons would be used to violate humanitarian law, as is the case in not only Gaza, but also Lebanon, given the indiscriminate nature of some of the Israeli operations in that conflict as well.

There's more room for states to use sanctions. Even without the Security Council acting, countries can unilaterally impose sanctions on any other country, as many countries, including the U.S., have done on countries like Russia and Iran. Given the severity and frequency of Israeli violations, more states should impose targeted sanctions on the responsible political and military leadership of Israel.

That doesn't mean blanket sanctions on everybody, the whole country, or the economy. It certainly [does] mean those responsible for violations should be targeted through sanctions in the way that we target any other country that is seriously violating human rights. There's clearly a political problem that—for whatever reasons of domestic and international politics—various countries are not applying the law to Israel as we apply the law to other countries that seriously violate international law.

With this paralysis the Security Council faces, where do you see a path forward for the Security Council to act?

The Security Council did act. It did demand a ceasefire from the parties, and Israel did not comply with that. Unfortunately, in order to enforce Security Council resolutions, you need to take other steps, and the United States is not willing to do that. So [the United States and Israel are] really undermining the potency, credibility, and legitimacy of the Security Council. The Council is essentially allowing its own resolutions to be flouted without any consequence.

There's near-complete impunity, and lots of other states are trying to bring pressure. [Although,] when you're not only shielded but actively armed by the United States to continue committing war crimes, there's very little that other states, even collectively, can do. Nonetheless, it's absolutely important for the world to do its best to send those messages to Israel, to stigmatize its conduct, to denounce it, [and] to raise the political price on Israel [for] its behavior—like [what was done with] South Africa and [many] other countries who were allies historically, but who behaved badly, and we tried to influence them to do the right thing.

Currently, 142 of the 193 United Nations member states recognize Palestine. In your view, how might the aftermath of Hamas’ October 7 attack on Israel affect Palestinians’ pursuit of self-determination?

[Almost] everybody recognizes now [that] the status quo of many decades cannot simply continue because it's fueling this endless cycle of violence. The UN Secretary-General was right to say that [Hamas’ response] was not created in a vacuum. It's [a] response unjustifiable and inexcusable in terms of the way it [has] used violence, but it's clearly a response to the many decades of Israeli occupation with no solution in sight.

There's meant to be a negotiated solution. I'd say two things about that. [First], any political solution has to respect the red lines of international law. That includes Palestinian self-determination and Palestinian control over their own lands, territory, resources, etc. It’s clear that Israel has never been willing to respect that. The best proof of that is the establishment of 700,000 settlers living in the West Bank in direct violation of the Geneva Conventions. It's a war crime to establish settlements.

Israel is fond of blaming the Palestinians for not taking the chances of a two-state solution offered by Israel. Frankly, Israel has never offered a solution [that] respects international law, which evacuates all of the settlers from Palestinian land and [which] respects all of the rights of Palestine under international law. It's no surprise that many states want this [proposed solution] to be a game-changer.

That's why there's more support for recognition of Palestinian statehood within the UN and bilaterally. As long as the Israeli occupation continues and a possib[ility] [of] reoccupation of Gaza in the future [persists], then Palestinian self-determination and statehood will continue to be denied. It's only the United States that can change that because as long as the U.S. allows Israel [to act] with effective impunity, no one is in a position to challenge Israel.

We see ongoing conflicts in regions such as Russia-Ukraine, Ethiopia-Somalia, and Armenia-Azerbaijan. How do you think these issues in Israel-Palestine fit into this broader picture of global human rights challenges?

Unfortunately, the world seems to have a pretty limited attention span. There's been a lot of focus over the last year on Gaza [and] a lot of focus in the previous 18 months [to] two years on the Ukraine and Russia war. What that sometimes means is that there's a huge neglect of other conflicts [that] need international attention [and] intervention to not only facilitat[e] humanitarian relief for civilians in need, but for peacemaking, peacebuilding, [and] peace enforcement.

Sudan is a great example: a really horrendous conflict with millions displaced, in some ways a conflict on a much greater and worse scale than either Gaza or Ukraine, and yet it barely registers in the international media or in global diplomatic efforts and debates. That's replicated in so many other conflicts.

The sort of present geopolitics is unhelpful because [of] tensions with Russia and China. The West is increasingly fragmenting the world into blocs and making cooperation on finding common solutions to some of these problems, much, much more difficult and polarized. Countries really need to set aside those differences. Even if you have political disagreements or geopolitical tensions in your bilateral relationships, that needs to be set aside when it comes to multilateral solutions for problems [that] affect so many people on such a vast scale.

What do you see as the immediate priorities for peacebuilding and implementing these multilateral solutions?

Certainly, we should [not] give up on Security Council reform, because the current composition of the Security Council is clearly not reflective of the current balance of global power or the distribution of global interests. It's stuck in this time warp from who won the Second World War in 1945. A greater representation of Asia, Africa, [and] Latin America on the Security Council is an absolute priority.

In recent months, the U.S. has been raising the issue of Security Council reform again. It's positive to keep that on the table. That shouldn't be weaponized as a way of rigging the Council to put on people you like and [who] are most likely to side with you on issues. It has to be a true representation of global power. It's been positive that the General Assembly has been more active on peace and security issues precisely because of the failure of the Security Council. That's a positive because the General Assembly is a universal body. It is representative of everybody, and it's not paralyzed by the same kinds of veto politics on the Security Council.

The problem is, ultimately, [that] the General Assembly can only make recommendations. It can't force states to do anything, and so it has a moral authority and a political authority. At the end of the day, in peace and security situations, that's often not enough. That's why we need to keep pushing for not only reform of the Council, but also the more responsible use of the veto power [so] that the states who possess [that] right [are] not blocking collective action just to protect [their] friends when [their] friends are behaving badly and violating international law with impunity over many decades.

Black spoke with Saul on October 15, 2024. This interview has been lightly edited for length and clarity.

The views expressed in this piece are the interviewee's own and are not reflective of the views of the HIR.