Author’s Note: The following is a modified version of remarks given at the American Society of International Law’s Midyear Meeting
Apologies for reading from a script, this presentation is challenging for me. The draft paper that I was supposed to present today is titled “Common Sense Use of Force.” It argues that in contrast to the dominant inter-state element of the laws that govern the use of force, international law prohibits the arbitrary use of force in all circumstances, including when a state uses force extraterritorially against a non-state armed group.
I fully stand by the main argument of the draft, but I also agree with several comments that I received when I presented an earlier version of the paper at the ESIL Annual Conference, which suggested that I reconsider the appropriateness of the term “common sense.” The concern was that it is questionable to what extent there is indeed one, broadly shared, common-sense, normative account of events in the global community. I am still open to suggestions for a title. But in my remaining time, if you will allow me, I am going to focus on something broader than this paper, because little did I know how accurate these concerns about the appropriateness of the use of common-sense in the title would prove to be.
There were supposed to be three more Israeli scholars here at the conference but I am the only one that traveled. A month ago, our world changed. In many ways, it collapsed. The events of October 7th shattered our most basic sense of security, as today we face what many of us consider an existential threat from the combination of Hamas in the South, Hezbollah in Lebanon and Syria in the North, as well as from Yemen and Iran.
It was not an easy decision for me to be here. I do not feel comfortable enough today to share how I have been since that horrible morning. I will just briefly say that my wife’s family is from the South of Israel. On the morning of October 7, they were told to remain in safe rooms with the door locked. When the initial attack ended, they left their homes for somewhere safer, similar to more than 130,000 other Israelis living in the South and near the Northern border. A person that my wife briefly dated before we met was murdered during the attack and his mother and brother are currently being held as hostages in Gaza. My kids can’t sleep at night. They are scared. I try to tell them that everything will be fine, but they hear in my voice that I am not sure that this is true. Still, in many ways, we were the lucky ones on that day because our close family and friends survived. My family did not want me to travel here to Pittsburgh; to be so far away from them in such times. But more than that, it was not an easy decision because I feel that on that day something dramatic happened to our community, to my community, by which I mean all of us, this community of international law scholars. These conferences used to be something that I eagerly anticipated every year, especially the Mid-Year meeting. But now I am concerned about my encounters with my colleagues. I am afraid, most of all, that I will find out that you will not be able to understand, or to really see my perspective.
The paper that I was going to present today addresses cases where there is an apparent contrast between the formal articulation of international law and shared basic moral intuitions. When I initially used the term “common sense” it was in the assumption that we have shared basic moral intuitions. I assumed that we could be consistent with our positions and apply the same academic standards to all cases in good faith regardless of who the parties are. And in fields that deal with a broken world such as jus ad bellum and jus in bello, I assumed an ability to accommodate complexity and contrasting interests that literally involve life and death.
I am currently having significant doubts about whether this is really the case. The reaction to the events of October 7th by so many of our international legal community have left me broken.
Let me give a few examples. In an addendum published on Opinio Juris on October 10, in the context of posting an earlier interview he had conducted, the author (an Opinio Juris Contributor) almost celebrated the Hamas atrocities that had occurred 3 days prior.* Not only was there an apparent lack of empathy expressed for the victims of those atrocities or even an acknowledgment of those crimes, the author instead referred to October 7 as a “counter-offensive” and cited Frantz Fanon and Sukarno to justify the events stating that “‘decolonization is always a violent phenomenon’ for the coloniser ‘does not give up their loot easily.’ ״ For the reader to understand their use of the term, “counter-offensive,” the author hyperlinked to an essay that speaks at length in unvarnished celebration of the October 7 attack (e.g., lauding the “spectacular feat … an amazing and highly daring offensive;” an attack that “dealt a heavy blow to the unbearable haughtiness” of the Israeli government and stating, “[t]he Israeli flag was projected on Berlin’s Brandenburg Gate on the evening of 7 October in a contemptible display of fawning over the state of Israel”).
Sadly, this is not a unique example, but instead is representative of a trend within the academic community in general and within the community of international lawyers in particular. Various academics celebrated the atrocities in various public forums, while others justified the horrible crimes on social media. In a recent post, Opinio Juris published a piece calling for States to act to prevent a potential genocide in Gaza without any reference to the events of October 7 or their perpetrator, Hamas,—not to mention the analysis of those acts under the Genocide Convention. It is no wonder that this author failed to mention the October 7 atrocities, as he had in fact justified it on that day, posting that morning on X: “UNGA Res. A/RES/33/24 on 29 November 1978: ‘Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, particularly armed struggle’.” There were and are, of course, many such posts on X and elsewhere celebrating the atrocities of October 7. But what is notable here is that mainstream international law blogs are willing to publish posts that justify such atrocities without much resistance of the international law community.
How can we truly think of shared moral intuitions if one of the leading international law blogs is willing to publish a post that effectively celebrates the brutal and intentional murder of children, men, and women including holocaust survivors, the raping of women, the destruction of entire communities, and the abduction of more than 200 hostages including children as young as 9-months-old? How can we reconcile the acceptance of such posts and public positions by some members of our community? Are we willing to accept a situation where some human beings do not deserve protection, like my young son Gev, due to the power relations between parties to a conflict?
I see these pieces as part of other concerning trends in the reactions of international lawyers to the atrocity crimes of October 7. That includes questioning the facts regarding the crimes, such as the evidence of sexual violence on that day. Show us the videos! Where is the proof? Such evidentiary standards are not being applied to other similar cases of alleged atrocities. The abject failure of UN Women to address the severe sexual violence that happened on that day is a piece of this (the organization finally made a point of it, in a tweet/X, just a few days ago – nearly 2 months after the events and as a result of concerted activism). In this context, it is telling that some international lawyers chose to highlight specific factual controversies, rather than pointing to the unimaginable yet undeniable atrocities that occurred on that day without any doubt.
Another trend within the international law community that has also been troubling, though not on the same scale as those discussed above, focuses on the notion of self-defense. On November 9, Opinio Juris published a post arguing that Israel does not have a right to defend itself against Hamas following the attack. While this latter piece acknowledged that there is no justification for “intentional targeting of civilians, or indiscriminate attacks that risk harming civilians, or the kidnapping of civilians, all of which are illegal,” it offers no means by which Israel will be able to combat such horrible atrocities. Similarly, Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, recently stated that in response to the atrocities of October 7, Israel was permitted only to use “law enforcement measures,” or could have “relied on the United Nations to demilitarize” Hamas. These are again just two examples of a much broader trend. It is untenable to embrace a version of international law that does not allow for a State in Israel’s position to use force against Hamas in order to defend its civilian population (just as it would be untenable to suggest that the force used in response need not comply with IHL and other international law norms, for example). None of this should detract from theoretical and practical debates about the jus ad bellum, which is indeed very complex in the current context and for which there are fair-minded positions.
In my Grandparents’ town in Poland lived 6,000 Jews. Only 18 survived. Among them were my grandparents, but their families did not make it. On my way here, I was reading a small book of conversations with my Grandfather about the Holocaust. This book together with the diary that he published contain similar stories to those that happened on October 7th. Children hid in closets while their parents were being killed, entire families, including children, were burnt alive, and pregnant women were murdered, including my Grandmother’s sister, who was 9 months pregnant. In our collective memory, one of the main lessons of the Holocaust is never again. Inherent in this is a moral imperative: the responsibility that if something like the Holocaust happens again, we cannot rely on others to stop it in time. We must be able to defend ourselves.
International law should provide protection and guarantees against atrocities, no matter who commits them. It should help communities with collective memories of atrocities – on any side of a conflict – to regain trust in global institutions. The current thinking among some in our community that justifies and even celebrates the events of October 7th, and that fails to distinguish between Palestinian civilians and Hamas militants, or even legitimizes the latter, does not contribute to creating such trust.
To be clear, I am not arguing that the international law community should refrain from criticizing Israel in the current conflict. Nor does recognizing the humanity of the Israelis subject to Hamas’ atrocities prevent deep compassion for the many thousands of civilians who have been killed in Gaza, and those who suffer from other impacts of the war. It simply suggests that it is necessary to take seriously the lives of all people that live in our region, as human beings rather than as theoretical constructs, and treat all parties as though they have moral agency and responsibility for their actions (including their actions after October 7). And it must allow for a feasible means for a State to defend its civilian population in the face of unimaginable atrocities.
I was approached by many colleagues who find the trend that I describe here concerning. But the vast majority of these people share their thoughts with me and other colleagues in private conversations. They are afraid to express them in public forums. I admit that I am afraid as well. I conclude with a simple call for our community to look at us, to look at me, to really look at me, and allow for nuances and compassion to have a significant place in our horrible world.
* Editor’s note: This essay is not making any reference to an interview with Noura Erakat that occurred before October 7, 2023. The essay instead discusses and quotes only from an addendum published by the author of the interview in which that author, an Opinio Juris Contributor, discussed at length the events of October 7.