Israel - Palestine: Positivism as an Explanatory Variable

Abstract

This paper analyzes the Israel‑Palestine conflict from the perspective of legal positivism, with the aim of explaining the ineffectiveness of International Law in the face of repeated human‑rights violations committed during the Israeli offensive in Gaza. Drawing on the theories of Hans Kelsen and H. Hart, it examines how the decentralized structure of the international system, based on the formal validity of norms and the absence of a global coercive power, has allowed powerful states to act with impunity under the shield of sovereignty and formal legality. The study argues that positivism, by separating law from morality and reducing it to a set of rules recognized by states, explains the paralysis of the international legal order in conflicts where political and strategic interests prevail. In this sense, the Palestinian case constitutes empirical evidence of the crisis of the positivist paradigm as a mechanism of legal understanding that could serve the construction of a resolutive international framework.

Introduction

On September 14, 2025 the news headlines were dominated by the chaos unleashed during the cycling tour as it passed through Madrid. A group of demonstrators joined an already large wave of protests against the participation of the Israel‑Premier cycling team; however, their demands had little to do with sport. They marched with Palestinian flags and shouted slogans with a clear message: "STOP GENOCIDE." On October 7, 2023 Israel suffered one of the worst terrorist attacks carried out by the Hamas terrorist group within its territory; the response from Israel would not be long in coming. On October 8 the Israeli state declared a state of war over the Gaza Strip, marking the beginning of a warlike conflict that would take two years to resolve, leaving in its wake a devastated Gaza Strip, a displaced population, and an unresolved conflict.

Yet the wounds of the conflict would extend beyond the borders of a perpetually unfinished Near East. Quickly, a large part of the Western international sphere saw the rise of a critical movement regarding Israel’s actions, defining them as contrary to the norms of International Law, concerned about the situation and the rights of Gazans in a war that would soon be characterized as genocide. Political claims would soon be accompanied by formal demands from various international bodies such as the International Court of Justice or the UN, which would urge Israel to prevent accusations of genocide against the Palestinian people and to guarantee the entry of basic supplies into the Gaza Strip, emphasizing that famine cannot be used as a weapon of war. The relevance of the conflict thus took on a broader view: Why has International Law been unable to guarantee justice or normative compliance in the face of Israel’s actions in Palestine?

Legal Positivism and International Law

Analyzing the conflict from the proposed hypothesis requires its own section to clarify what the positivist perspective of law is and what its consequences are for the sphere of International Law. The positivist view reduces law to technique that, in itself, lacks purpose or value (Bobbio, 1993, p. 174), which serves to achieve a desired social conduct through coercion (Kelsen, 1999, p. 19). One way to understand this is through the difference that law presents with respect to convention: the former entails the possibility of coercion, which is absent in the latter, whereas law would have a body of individuals empowered to punish norm violations. From this perspective the state acquires absolute preponderance, being the only political entity endowed with real coercive capacity through the use of “Legitimate Violence” (Weber, 1993, p. 28). It is at this point that positivist authors flee from the “ought‑to‑be” of law by means of a purely empiricist methodology.

Nevertheless, the positivist view has indeed sought to methodologically justify the existence of International Law within a theoretical framework that initially revolved around the centrality of the state. This has been pursued through the hierarchical conception of norms, whereby some derive validity from the validity granted by a superior norm (Kelsen, 1999, p. 112). In this way the survival of International Law can be understood as follows: State sovereignty is guaranteed by norms of international recognition; sovereign states then articulate their sovereignty thanks to International Law.

Another form of understanding International Law is a more sociological approach that nevertheless returns some centrality to the state: the generalized acceptance of norms in which states freely associate with one another, and only to this extent are they involved as monitoring actors of the norms in which they themselves are implicated (H.L.A. Hart, 1963).

However, both views suffer from a certain idealism, and it is only through their critiques that we can understand the proposed hypothesis applied to the case of the Israel‑Palestine conflict. On the one hand, the first premise presents an excessive formalism; the hierarchization of International Law—or law in general—as a closed system is detached from the international legal reality that presents a disordered, non‑hierarchical, and fragmented framework, such as Humanitarian Law, Commercial Law, Environmental Law, etc. On the other hand, the very vision of law as a voluntary acceptance reduces International Law to a mere matter of political ideology (Urueña‑Sánchez, Mario I., 2017).

Repercussions in the Conflict

The analysis of the actions of the State of Israel in the Gaza Strip from the perspective of legal positivism allows us to understand the structural causes of International Law’s ineffectiveness in the face of systematic human‑rights violations. As noted in the previous section, the positivist conception—both in Kelsen’s formalist strand and Hart’s sociological strand—views law as an autonomous system of norms whose validity depends exclusively on its formal recognition by the legal subjects involved. This understanding of law, detached from moral considerations, has shaped the foundations of the contemporary international legal order and largely explains its ineffectiveness in conflicts where powers backed politically or militarily by other states intervene.

From H. Kelsen’s perspective, International Law rests on a hierarchical structure of norms that derive from the validity of a higher fundamental norm. However, the practical application of this theory encounters serious limitations in contexts such as the Gaza conflict, where the existence of a state power with absolute coercive capacity within its territory challenges any attempt at external coercion. Israel, under the protection of its sovereignty and its right to self‑defence, has justified its military operations as legitimate measures against terrorism, while International Law, devoid of real coercive mechanisms, seems to be reduced to a mere formal expression.

From Hart’s viewpoint, the problem can be interpreted in terms of the absence of a true “rule of recognition” in the international system. According to Hart, law exists to the extent that a community accepts it and applies its monitoring mechanisms. However, International Law lacks such universal acceptance; its validity depends on the practice and consensus of states. In the Gaza conflict, divergent interpretations among different global actors—some labeling Israeli actions as genocide, others as legitimate defence—highlight the absence of a shared “rule of recognition” that would allow the objective application of international legal norms.

In this way, legal positivism, far from providing a normative answer to the conflict, allows us to understand its structural failure: International Law lacks a sovereign organ capable of imposing coercion and does not possess a homogeneous international community that accepts a single rule of recognition. The normative force of the system depends on political power and the selective acceptance by states of the same norms. This selectivity explains why UN resolutions or judgments of the International Court of Justice can condemn Israel’s actions, yet would not manage to alter them.

Conclusion

In this sense, Israel’s conduct in Palestine constitutes a paradigmatic case of instrumental positivism in which law is used as a formal justification for political actions. Israel has invoked its right to self‑defence recognized by the United Nations Charter to legitimize military operations that have been characterized as disproportionate or contrary to International Humanitarian Law. This strategic use of the normative framework demonstrates that positivism, by detaching law from morality, offers the state a margin of discretion that can lead to violative practices shielded by formal legality.

The international reaction to these actions has highlighted the system’s limits. Although numerous resolutions have demanded a cease‑fire, respect for human rights, and humanitarian access to Gaza, the implementation of these measures depends on the will of the Security Council’s member states, where the reciprocal vetoes of the great powers block any coercive action. Legal positivism, in this context, proves unable to guarantee justice, as it recognises only the formal validity of norms without questioning the power structures that determine their effectiveness.

Ultimately, the Israel‑Palestine conflict reveals an unresolved tension between the legality and the legitimacy of International Law. From a positivist perspective, Israel operates within a system that, although it formally condemns its excesses, lacks the political force to impose limits. The consequence is an international order in which the norm exists, yet its durability depends on power, and where justice becomes an aspiration rather than a reality. This opens the debate about the structure of the current international system as well as the pathways that appear effective for resolving global conflicts in the future.

References

• Bobbio, N. (1993). El positivismo jurídico. Debate.
• Hart, H. L. A. (1963). The Concept of Law. Oxford University Press.
• Kelsen, H. (1999). Pure Theory of Law. Eudeba.
• Weber, M. (1993). Economy and Society: An Outline of Interpretive Sociology (J. Winckelmann & J. Medina Echavarría, Eds.; J. Medina Echavarría, Trans.). Fondo de Cultura Económica.
• Urueña‑Sánchez, Mario Iván. (2017). El positivismo de Kelsen y Hart en el derecho internacional contemporáneo: una mirada crítica. International Law, Revista Colombiana de Derecho Internacional, 31, 193‑220. https://doi.org/10.11144/Javeriana.il15-31.pkhd