The Israeli attack on the Gaza strip in has exposed the relative impotence of international law in the face of determined sovereign action. On 8 January 2009, the United Nations Security Council called for "an immediate, durable and fully respected ceasefire, leading to the full withdrawal of Israeli forces from Gaza." It also urgently insisted on the "unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment."
Conor Gearty is the director of the Centre for the Study of Human Rights at the London School of Economics. Among his
books are Civil Liberties (Oxford University Press, 2008) and Essays on Human Rights and Terrorism (Cameron May, 2008). His forthcoming books
are on Liberty and Security (Polity) and Social
Rights (Hart). His website is conorgearty.co.uk
This article, with minor editorial variations, first appeared in the Tablet (17 January 2009)
Also by Conor Gearty in openDemocracy:
"The Universal Declaration of Human Rights: the next sixty years" (10 December 2008)On 9 January the UN high commissioner for human rights, Navi Pillay, told a special session of the Human Rights Council (HRC) that "international human-rights law must apply in all circumstances and at all times." The high commissioner strongly urged the parties to the conflict "to fulfil their obligations under international humanitarian law to collect, care for and evacuate the wounded and to protect and respect health workers, hospitals, and medical units and ambulances." Pillay also called on each side "to allow the deployment of independent human-rights monitors in both Israel and the Occupied Palestinian Territory to document any violations of international-human rights and humanitarian law."
In reminding the HRC that "violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked", she suggested that the council "should consider authorising a mission to assess violations committed by both sides in the conflict in order to establish the relevant facts and ensure accountability." In its resolution on 12 January, the council said that it "strongly condemns the ongoing military operation carried out ... in the occupied Gaza Strip, which [has] resulted in massive violations of human rights of Palestinian people and systematic destruction of the Palestinian infrastructure"; it decided to send "an urgent independent international fact-finding mission" to investigate what is going on.
The practice of war
The anger evident in all this UN activity, and in particular the passion evident in the high commissioner's choice of words - reflected too by the secretary-general himself during his visit to Gaza on 20 January - is founded upon the blatancy of the disregard of the law that has been evident in Gaza.
This is not solely or even mainly about whether the operation was justified; the concern is rather with how it was conducted. International humanitarian law requires all parties to a conflict of this nature carefully to distinguish between combatants and others, targeting only the former. It also requires that the wounded and sick must be collected and cared for by the party to the conflict which has been within its power. Methods of warfare which are likely to cause unnecessary losses or excessive suffering should not be used.
The Human Rights Council was particularly
exercised by what its resolution refers to as the "targeting" of UN facilities
in Gaza. Even the normally discreet International Committee of the
Red Cross (ICRC) issued what
was for it a highly unusual statement to make in the course
of a conflict. This condemned the Israeli military for having breached
international humanitarian law in having failed to allow access to a neighbourhood within
which were later found four small children, starving among twelve corpses
(including those of the children's mothers): according to the ICRC, the Israel Defence Forces had delayed four days before allowing the
organisation's medical teams into the area.
Among openDemocracy's articles on the Gaza conflict of 2008-09:
Paul Rogers, "Gaza: hope after attack" (1 January 2009)
Avi Shlaim, "Israel and Gaza: rhetoric and reality" (7 January 2009)
Paul Rogers, "Gaza: the Israel-United States connection" (7 January 2009)
Tarek Osman, "Egypt's dilemma: Gaza and beyond" (12 January 2009)
Mary Robinson, "A crisis of dignity in Gaza" (13 January 2009)
Paul Rogers, "Gaza: the wider war" (13 January 2009)
Menachem Kellner, "Israel's Gaza war: five asymmetries" (14 January 2009)
Khaled Hroub, "Hamas after the Gaza war" (15 January 2009)
Paul Rogers, "After Gaza: Israel's last chance" (17 January 2009)
Martin Shaw, "Israel's politics of war" (19 January 2009)
It would be wrong to say that none of this international activity has had any effect at all: there can be little doubt that Israel has felt some diplomatic and possibly even economic pressure arising from the way in which it conducted its operations in relation to Gaza. But in the absence of any kind of enforcement mechanism, the legal effect of all this international noise has been for all practical purposes zero.
Indeed, without any kind of international adjudicative body to which Israel is required to defer, the media spokespeople deployed to justify Israel's actions to the world, together with their supporters in the world community of academic "terrorism experts", have been able to argue that the attacks are legitimate under international law.
The argument - based on the right of national self-defence in Article 51 of the UN charter, together with the alleged use by Hamas of civilian areas from which to launch rockets on Israel - might not be able to survive a few hours in a court of law; but all it needs to withstand is at most five minutes' interrogation in the media, and it is more than fit for this purpose. The Israeli leaders were able to declare their operation a success before it was allowed to become an embarrassment to Barack Obama on his 20 January 2009 inauguration; they can hope that within a few months this dirty little war will have faded into a background already littered with a succession of such disproportionately violent encounters.
The response of law
Many lessons should already have been learned from these earlier episodes. There are two fresh ones. First, the United States attack on Libya in April 1986 - ostensibly based on an alleged right of pre-emptive self-defence supposedly to be found within Article 51 - was an event in the history of international law from which (it is now clear) the subject has yet to recover. President Reagan's decision to bomb Tripoli opened the door to a unilateralism in international affairs that has shed more and more of its UN camouflage as time has gone on, and without any apparent ill-effects for those who practice it.
This is clear in the way that, as things stand, Navi Pillay's warnings about individual criminal responsibility are empty threats. The Israelis have not the slightest intention of subjecting themselves to the jurisdiction of the International Criminal Court anytime soon. So while the UN and the ICRC are attacked in Gaza and civilians die in their hundreds, the restricted functionaries at The Hague continue with their decent work unearthing yet further evidence of past wrongdoing by deposed African tyrants. It is for this among other reasons that so many of the less powerful nations are so opposed to agreeing a definition of terrorism at the UN: imagine how fortified Israel would be by a UN convention which condemned attacks on them but had nothing to say about Israel's own military operations.
Second, therefore, there should be no UN movement on a comprehensive anti-terrorism convention until there is both international agreement to clarify the remit of Article 51 and a collective decision properly to enforce international humanitarian law. If the new president of the United States were privately torn between his response as an empathetic human to the onslaught on Gaza and his concern not to tackle powerful interests so early in his term of office, he could do worse than launch an international campaign to restore faith in international human rights and international humanitarian law. If this really meant something - and if it were made clear that the United States's most loyal allies were expected to lead the way - then that would make the military planners in Tel Aviv very nervous.