This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.
Before you read this blog, you may want to read Part 1 of this post: Breaking the Cycle of Violence and Misery in the Middle East –What Role for International Law? Part 1
In Part 1 of this Blog, we picked up a number of pertinent legal issues around the surge in hostilities in the Middle East in October 2023. There is a broader issue, however, not yet addressed that cannot be ignored and that is the plight of Gazans. Gaza has been routinely described in the past as an open-air prison, more recently as an open-air grave. There is the clear argument that Gaza is still occupied by Israel, notwithstanding Israel’s 2005 ‘disengagement’ when it formally ‘withdrew’ from Gaza. Israel controls the air space, all access to Gaza (except the Rafah crossing with Egypt which is used to permit humanitarian aid) and also access via the sea to Gaza. Occupation entails responsibility for the citizens of a territory, which Israel flatly denies. An alternative argument is that Gaza is under siege by Israel; an argument to which Israeli legal spokespersons have since 2005 been more receptive. A siege may sound like a military strategy from a bygone era, but its contemporary relevance cannot be denied. In neither case, occupation nor siege, are civilians legitimate military targets, and denying access to food, water and power is forbidden so long as they are for civilians.
The argument of Israel, the USA and some others is that Gaza is run by a terrorist organisation, Hamas, and thus any assistance to Gazans is effectively handed over to Hamas and thus ensures its survival. This is why there has been a call by the USA, UK and EU, for example, for ‘humanitarian pauses and corridors’ as opposed to a ceasefire. There is also an interesting irony here. Hamas, proscribed as a terrorist organisation by the USA, UK, EU and Canada among others, won a democratic (legislative) election across the Palestinian Territories in 2006 but was unable to agree a power sharing arrangement with the Palestinian Authority (PA), the other key organisation representing Palestinians. After a brutal internecine conflict, between Hamas and the PA – thus between Palestinian factions – Hamas took control of Gaza and the PA took control of the Palestinian Territories of the West Bank. The PA are recognised as being ‘legitimate’ partners and representatives of all Palestinians even though they lost the 2006 elections and further elections have not been held in the intervening 18 years. The key distinction here is that the PA has renounced violence whereas Hamas has not and is still formally committed to the destruction of Israel. Israeli spokespersons have in October and November 2023 repeatedly made clear that Gazans need to rise up against Hamas and also that the population voted for Hamas in the 2006 elections and thus bear responsibility for its actions. This is hugely problematic in a number of respects. First, Hamas won the 2006 elections and the PA did not, yet the PA is deemed to legitimately rule the West Bank. The Palestinian Territories voted collectively, not in Gaza and the West Bank separately. Second, democracy and elections have been strongly pushed by many Western states as the preferred method of deciding upon governments in all states. That happened here but it was not the outcome preferred by those pushing hardest for those elections. Third, the majority of those in Gaza did not vote for Hamas, as is often claimed. Who voted for whom in those elections is unknown and moreover, the majority of Gazans are under the age of 18 and thus would not have been alive at the time of the 2006 elections, let alone voted for Hamas then. Fourth, political movements often achieve and sustain statehood through violence. Israel itself secured independence in a cauldron of terror in 1948 and has been involved in numerous conflicts since that it has pre-empted. While at numerous times it has been attacked by others and with some avowing to destroy it, Israel has also attacked neighbouring states to gain advantage and territory with the 1967 conflict (the so-called Six Day War) being a paradigm. Many military figures in Israel’s history have commited atrocities, wearing them as badges of honour, and later becoming leading politicians if not Prime Ministers. There is a lesson here also from the PA, which was in the past dominated by those committing acts deemed to be terrorism. As is clear from many such political bodies, there is often an evolution from resistance to peaceful co-existence and legitimacy. This can be seen in numerous cases around the world – the IRA in Northern Ireland and the ANC in South Africa are two other such organisations who we come across on the module. Finally, this quite plausibly can be seen to venture into the realms of collective punishment, prohibited by the Geneva Conventions. In short, a civilian population should not be punished as a whole for the crimes of a few – which can be argued to the the case with such an approach.
What is obvious from the above and the previous Blog is that the issues are multilayered, deeply intertwined and complex – but having established them we are able to examine the roles that law can play and where it may offer chinks of light and hope.
The first is individual accountability for war crimes committed. It is undeniable that war crimes have been committed since October 2023 – there is ample extant evidence of that. Calls for the eradication of peoples, the dehumanising of the ‘other’ in the context of conflict, and atrocities documented and verifiable are all abundant. Critically, such acts are crimes subject to universal jurisdiction and under customary international law any State may prosecute those who have committed such crimes, if they come within their jurisdiction. The chances of this happening are not significant – and states with legislation which facilitate such prosecutions do not have a great track record in utilising them. The ICC has, at the time of writing, an on-going investigation into the situation but one does not have to be a pessimist to deem the chances of prosecutions slim. Israel’s territory is not subject to the Court’s jurisdiction, and it is inconceivable that any Israeli national will ever be handed over to the Court by Israel, even if an arrest warrant is issued. In terms of Palestinians being handed over to the ICC, the situation is much the same. Neither Israel nor Palestine are likely to prosecute their own nationals for any atrocities committed. So, what of the law then and its role if it is unlikely to be enforced here in terms of individual responsibility?
In the most difficult cases, such as between the Palestinians and Israelis, history tells us that individual legal accountability is not the most conducive path to resolution of the broader issues. The solutions can only be diplomatic and agreed between the parties themselves. Others may support, convince and cajole but ultimately it is for the key actors to find the necessary space and courage for compromise, so as to secure their mutual peaceful coexistence. The law can reflect those agreements, but it cannot bring parties to the negotiating table – alas, that is for the politicians.