Conflict, Courts, Confusion, Complexity and Crimes: Part 1

This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.

Since October 2023, global news, social media, and all other mediums through which we receive information, have been dominated by the expanding conflict initially centred around the long-standing tensions between the Palestinians and Israelis. Competing narratives that are stretched back thousands of years and invoke divine rights have led to one of the most intractable conflicts in contemporary geopolitics. It is of course one dispute amongst many across the globe, but the Middle Eastern conflict receives almost universal attention and evokes passions like no other.

In these competing conflicting narratives, law, morality and justice play central roles: right and wrong; strong and weak; privileged and vulnerable; to name but a few. But the legal issues are probably the most strongly contested and the complexity and consequential confusion of those intertwined arguments are not easy to get past. Complexity is both an asset and a weakness for those seeking to base their arguments in law and regrettably the nuances quickly get lost in the megaphone diplomacy that all engage in. But is it not just the laws – which we will come to shortly – that matter. Differing perceptions of right and wrong, legitimacy and illegitimacy, proportionate and disproportionate, among others, abound and as with everything else are strongly challenged. But more than anything the law should help us cut to the core of the issues. Facts can be contested but ultimately certain events and decisions can be established, and legal consequences should follow. In the context of the Israelis/Palestinians, as is often the case, the law does not exist in hermetically sealed containers, rather it is deeply intertwined and overlapping. As students we learn areas of the law in distinct modules. But Criminal Law and Tort often overlap, as do Family Law and Property Law, or Equity & Trusts and Commercial Law. Notwithstanding that, we can unpick the areas of law that are relevant here. The aim here is not to comment on who has done what, or their rights and wrongs, but rather to provide some context as to the law. In short there are three key sub-branches of Public International Law that are relevant: the use of force; international human rights law; and international criminal law.

It is critical to stress, however, that each of these areas of law overlaps with the others. A use of force by a State can violate the human rights obligations of others or entail the individual and personal criminal responsibility of those who carry out the attack. Let us say a State commissions an airstrike on a school in a foreign territory, knowing there are many civilians (children) there, but on the basis of intelligence that a senior military commander may be there, who they wish to eliminate. The attack takes place, the school is destroyed and hundreds of children are killed. The intelligence was flawed and there was no military commander on site. The use of force itself by the State can be considered unlawful under the terms of the UN Charter – any remedy lies between the states in question. The killed children are victims of a human rights violation by the belligerent State, even though they are outside of its territory, because the killings are a direct consequence of the State’s actions – there is a clear causal link. The action lies against the belligerent State and must be brought by the family members of the children killed, assuming there is some international court or tribunal to whom individual petitions can be made. Finally, the individual who issued the command to carry out the strike and those who executed it may be personally criminally liable for their actions. The accountability would lie before national courts or before the International Criminal Court, assuming it has jurisdiction. As should be obvious, the issues in reality come down to who is or can be held responsible for what and what are the consequences of that. At this critical juncture, however, politics and power also come to the fore. Law is inherently in these contexts about power and reflects power dynamics. Consider for one moment the inter-temporal law – the law that applies is the law that existed at the time events happened. Thus, the transatlantic slave trade between the 16th and 19th Centuries or European subjugation and colonialism of territories in the Americas, Asia and Africa has not been deemed unlawful as there was no law prohibiting them at the time those events occurred. That, of course, did not prevent crimes against humanity and war crimes being ‘discovered’ after the Second World War at Nuremberg and Tokyo against the vanquished but never the victorious. No courts or tribunals have ever held the USA or Britain and rarely any of their nationals liable for war crimes further to the invasions of Iraq in 2001 or of Afghanistan in 2003.

In a truly horrific conflict, what is simultaneously most depressing but also reassuring, is that reference to the law has been central. By advocating different approaches to and interpretations of the law, the existence of and binding nature of the law is constantly reaffirmed. No one denies the law, its force or applicability rather its content. The fervently contested advocacy before the International Court of Justice in the case brought by South Africa against Israel’s practices in Gaza is evidence of this. But at this juncture we are back to where we started – the complexity and confusion caused by the conflict and the involvement of courts. To these we will return and expand more fully in the next part of this blog.