De Profundis  (Out of the Depths)

This post has been contributed by Professor Wade Mansell, Module Convenor for Public International law.

Two or three years ago I was marking a student essay concerned with human rights.  Accidently (I assume) the author, meaning to refer to the Universal Declaration of Human Rights, referred instead to the Universal Decelaration of Human Rights.  While I was amused by the ‘typo’ I have come to wonder whether the mis-spelling did not carry a grain of truth.  Worse still, I fear that it might have some wider significance for the broader field of public international law.  I hope that some of you might be familiar with Charles Dickens’s opening paragraph in A Tale of Two Cities:

 “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.” 

If one was to add an international law paradox it would be “it was the time when international law was most relevant, it was the time when international law was most irrelevant”.

I am of course alluding to contemporary events particularly in the Middle East, (including Syria, Lebanon, Iraq and Iran) but also Ukraine, Myanmar, Yemen, Sudan, Afghanistan and any number of states which are the sites of violent turmoil, but in this Blog I will concentrate on the Middle East, which exemplifies many of the points in your Module Guide about the strength and weakness of international law. On the one hand, international law has never been clearer or more explicit as to the duties of states to avoid egregious human rights abuses and to punish individuals responsible for international crimes – both through the International Criminal Court and through the exercise of Universal Jurisdiction, in the event of the perpetrator’s national state being unable or unwilling to prosecute.

Pointing the finger at each other.

In the Module Guide it is suggested that the law way of resolving disputes is by translating social/political disputes into legal disputes because, happily, legal disputes almost always have a legal solution. Nevertheless problems arise if either or both parties reject the validity of the translated legal problem – or its solution. This will occur if there is dispute about the political facts that are being translated, usually arising from different historical perceptions of the dispute. In such cases where international law is so ineffectual the dispute must remain in the political world, awaiting a political solution. This, I suggest, is where the Palestine/Israel conflict stands. It does not mean however that international law has no input – rather that the input, though relevant, is not dispositive. Much of this is discussed and hopefully explained in the recommended text (Mansell and Openshaw) and particularly in Chapter 9, IV – ‘The Case of Israel and International Law’ pp 329-345.

What needs to be remembered is that the contribution of international law to such political disputes, is that in its selection of relevant facts it enables dispassionate discourse concerning a dispute about which all participants are passionate. An excellent and relevant letter contains just such a contribution. It is from more than 200 prominent UK legal practitioners, legal academics and former members of the judiciary. It was written on 26 October to urge the UK Government ‘to act urgently to fulfil its international obligations in relation to the ever-escalating conflict in the Middle East’. It was written concerning the catastrophic situation in Gaza resulting from the attack by Hamas within Israel on 7 October. When the letter was written the casualties within Gaza were already a multiple of the numbers killed or injured on 7 October, since when the position has actually significantly deteriorated.

The letter is to be found here and it lays out in the starkest terms a legal analysis of the egregious breaches of International Humanitarian Law and International Human Rights Law currently being perpetrated by the State of Israel in Gaza.

It coincided with General Assembly Resolution ES-10/L.25 adopted by a vote of 120 to 14, with 45 abstentions, calling for ‘an immediate and sustained humanitarian truce leading to a cessation of hostilities’. It further demanded ‘that all parties immediately and fully comply with their obligations under international law, including international humanitarian law and international human rights law, particularly in regard to the protection of civilians and civilian objects’.

International law then, has made its contribution to the conflict, but only a political outcome offers any prospect of a permanent cessation of hostilities.

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