”The individual human being ……is the ultimate unit of all law.” (Hersch Lauterpacht, 1943, creator of the legal concept, ‘Crimes against Humanity)

This essay challenges the view that the existence of international law, specifically international humanitarian law, Conventions, Treaties on human rights, and International Customary law such as the Genocide Convention guarantees the protection of civilians against State sanctioned violence.

 

What may be asserted by States as adherence to the ‘rule of law’ may actually be just another label for State sanctioned detention, torture and killings of individuals. The International law scholar, Noura Erakat argues that ‘the rule of law is not synonymous with justice.’

Historically, Nazi Germany as well as apartheid South Africa were ‘both based on meticulous adherence to self-referential adherence to legalistic systems yet were unequivocally oppressive.’ (Erakat 2019, p. 5). Such an idiosyncratic approach adopted by political States in claiming to uphold a conception of the ‘rule of law’ that is unchallengeable manifests itself in an interpretation of international law that privileges the interests of politicians.

This politics of the ‘rule of law’ is exemplified by the manner in which hegemonic States today and their allies continue to rely on self serving interpretations of International law such as the 4th Geneva Convention to oppress thousands of individuals globally.

If one were asked to consider the greatest existential threats posed to human security today , one may possibly cite ISIS, Taliban or perhaps Al Qaeda as contenders . It may therefore be startling for some to discover that Sovereign nations comprising of not just autocratic States but Western liberal democracies kill, torture, and maim more civilians than do organisations designated as Terrorists by States.

What is even more inconceivable is the fact that State officials and their legal experts often argue that such civilian directed violence complies with domestic and International law. The US war on terror, for instance, in Iraq, Afghanistan and Pakistan has been estimated by Brown’s University Cost of War project to have killed more than 244,000 civilians (The Intercept 2018). 18 years ago, people in lower Manhattan witnessed nearly 3000 individuals lose their lives when terrorists did the unthinkable by flying jets into the twin towers of the World Trade Center. As one witness, John Maloney stated: ”I don’t know what the gates of hell look like, but it’s got to be like this,” (NYT 2001).

In the aftermath of these attacks, the US led War on Terrorism declared by President Bush in response to this horrific killings went on to claim about 507,000 people in Iraq, Afghanistan and Pakistan during over a period of 17 years (Brown University, Costs of War, 2019). . According to a report by Brown University’s cost of war project ‘the number of indirect deaths was several times larger than deaths caused by direct war violence, bringing the total death count to well over 1 million people’ ( VOA 2018; Brown University, Costs of War, 2019).

What astounds is that a killing of a single individual human being by another attracts the death penalty in States such as China, Singapore or even in parts of the US like Alabama or Texas. Yet, State officials hardly flinch or are held accountable in a domestic or international court of law when their militaries take the lives of hundreds if not thousands of defenceless children and their families ; defenceless against the brutal machinery of State sanctioned violence.

More recently, New York Times investigative report found evidence based on ‘unpublished Russian Air Force radio recordings, plane spotter logs and witness accounts  that ‘ the Russian Air Force has repeatedly bombed hospitals in Syria in order to crush the last pockets of resistance to President Bashar al-Assad’.   Physicians for Human Rights, an advocacy group ‘documented at least 583 such attacks since 2011, 266 of them since Russia intervened in September 2015’ with ‘at least 916 medical workers have been killed since 2011.’ ( NYT Oct 13, 2019).

The impunity with which countries such as the United States and Russia have carried out war crimes against civilians in violation of international humanitarian law enshrined in the 4th Geneva Convention 1949 is chilling.

Susannah Sirkin, director of policy at Physicians for Human Rights, argues that such ‘attacks on health in Syria, as well as the indiscriminate bombing of civilian facilities, are definitely war crimes, and they should be prosecuted at the level of the International Criminal Court in The Hague,”. Russia and China, however, have continued to evade any criminal responsibility by vetoing a Council Resolution that would have referred those responsible to the International Criminal Court (NYT Oct 13, 2019)

The balance of power tilting in favor of the political interests of States such as China and Russia was evinced once again in September when these superpowers exercised their UN Security Council veto, denying International law’s protection of innocent civilians from State inflicted violence and death in Syria. (Rebecca Barber, The Interpreter , 2019). Barber notes that ‘it marks the 13th time that Russia has used its veto to block Security Council action on Syria since the conflict began in 2011. In that time, more than half a million people have been killed.’ Had the resolution passed, it would have required States such as Russia and Syria to comply with International law, ‘including by putting an end to indiscriminate aerial bombing, minimising harm to civilians, and not targeting medical and humanitarian personnel’ (Rebecca Barber, The Interpreter , 2019) – specifically the 4th Geneva Convention relative to the Protection of Civilian Persons in Time of War.

Was this just another example of State sanctioned brutality and murder, justified and mediated through the politics of Hegemonic powers determining when International customary law is applicable and whom its subjects are?

The fact that States such the US, Russia and China refuse at times to comply with International Customary Law such as the 4th Geneva Convention does not in any way mean that such law is no longer applicable.

Rosalyn Higgins, A former judge of the ICJ,  sheds some light on these vital issues in her essay: Problems and Process: International law and how we use it (1994)

‘If a customary rule loses its normative quality when it is widely ignored , over a significant period of time, does this not lead to a relativist view of the substantive content of international law, with disturbing implications? ….’

‘all states agree that international law prohibits genocide ( and that this total prohibition is today rooted in customary international law and not just in treaty obligations ).

So what if some states from time to time engage in genocide? How may we safely answer that genocide , while it sometimes occurs and while its very nature makes all norm compliance shocking, is certainly not the majority practice.

The customary law that prohibits genocide remains intact , not withstanding appalling examples of non-compliance’.

Sovereign States have not only been guilty of refusing to abide by International Customary law that provides protection for civilians during military warfare; States have also engaged in attempting to reinterpret or rewrite binding International law in a way that excludes culpability and preserves immunity from international obligations.

Such exceptionalism is evinced in Israel’s particularistic interpretation of International Humanitarian Law and its applicability to the more than 70 year long occupation of Palestinian territories. Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Article 49 also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”; yet, in defiance, or as it argues, in ‘compliance’ with Occupation laws , Israel has persisted with its settler colonial occupation and de facto annexation of Area C, ‘where most settlement construction is based’, allocating 70% of the land to settlements and only 1% to Palestinians’, while In East Jerusalem, Israel has expropriated 35% of the city for the construction of settlements’ ( Amnesty International 2019)

Noura Erakat, in her brilliantly argued book , ‘Justice for Some’ cites UN Security Council Resolution 2334 (2016) which ‘unequivocally condemned Israel’s Settlements in the Palestinian Territories’ as they lack ‘ legal validity and [constitute] a flagrant violation under International Law and a major obstacle to the achievement of the two -State solution. ( Erakat 2019, p.1;) Notwithstanding the passing of the resolution 2334 by the International Community with only the US abstaining, Israel continues with impunity to illegally occupy Gaza and East Jerusalem while persisting with the construction of Jewish settlements in the West Bank.

What accounts for Israel’s exceptionalism in blatantly disregarding Resolution 2334 , which it is legally bound by?

Erakat points out that Israel has employed ‘legal work‘ to oppose the UN Security Council Resolution 2334, citing legal arguments including the claim of ‘the lack of a Sovereign in the West Bank and the Gaza Strip in 1967.’ ( Erakat 2019, p.10). Historically, instances of international support for denying the juridical status of the Palestinian people was evinced in the form of the 1917 Balfour Declaration and 1922 British Mandate for Palestine. With the stroke of his pen, British Foreign Secretary Arthur James Balfour gave away what was not his to give….stating that:

‘His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

The significance of such unequivocal International support for the Israeli occupation is that its emboldened Israel to circumvent the applicability of occupation law under the 4th Geneva Convention and its prohibition of ‘civilian settlements in militarily occupied lands.’ (Erakat 2019, p.10).

To rely on the narrative that the Jewish modern day claims to Palestinian land are ‘based on the biblical promise to Abraham and his descendants’ and ‘on the fact that this was the historical site of the Jewish Kingdom of Israel…destroyed by the Roman Empire’ (Beinin and Hajjar, p.1) disregards the reality that Palestinians have resided on the same land for centuries and were the demographic majority in 1948 (Beinin and Hajjar, p.1).

The denial of the Palestinian existence resonated in the words of the Former Israeli Prime Minister, Golda Meir: “There is no such thing as a Palestinian people… It is not as if we came and threw them out and took their country. They didn’t exist.” ( Golda Meir’s statement to the Sunday Times, 1969).

The myth that Israeli forces came into, what at times has been described by Zionist writers, ‘a land without a people for a people without a land’, however, fails the test of empiricism; one that attests to the fact that the Zionist movement acquired 78% of Palestine in 1948 by carrying out an ethnic cleansing of almost a million Palestinians, destroying their villages while preventing them the right of return to their homeland (Pappe 2017, p. xxiv).

Israel’s territorial claims to Palestinian lands have been further entrenched since 1967 by its construction of ‘tens of thousands of homes on Palestinian land to accommodate settlers while, at the same time, demolishing an estimated 50,000 Palestinian homes.’ (Amnesty International 2019).

The Human Rights group, B’Tselem reports:

‘In June 1967 (the 1967 War) Israel occupied the West Bank and the Gaza Strip. In the two months following the war, Israel conducted a census in the Occupied Territories. According to the census, about 1,000,000 Palestinians were there at that time: some 660,000 in the West Bank and some 350,000 in the Gaza Strip. These figures exclude all 1967 Palestinian refugees who fled or were deported by Israel during or after the war. ‘ (B’Tselem 2018 Conquer and Divide, https://conquer-and-divide.btselem.org/map-en.html )

How has Israel continued to legitimize its settler colonial occupation of the West Bank and enclavement of Gaza for more that half a century since the 1967 war?

This is in light of the fact that it stands as the last colonial power in the wake of the decolonization of former colonies such as apartheid South Africa and in the case of Algeria, after the revolt of natives, ‘resorting to long and intense wars’. (Reuveny 2008, p.50)

The settler colonial occupation of Palestinian land was an achievement made possible through Israel’s legal interpretation of occupation law that legitimates its oppression and dispossession of millions of Palestinians with the assistance of States such as the US. As Erakat argues:

“What would otherwise be a suspension of applicable law becomes a distinct modality of governance , and a compliance with a sui generis regime is, in appearance and function, lawful not lawless.” (Erakat 2019, p.19).

Such ”a compliance” by Israel ”with a sui generis regime’ as argued by Erakat was evinced in the work of the legal architect of the Israeli occupation, Meir Shamgar, Israeli Military Advocate in 1967 and former Chief Justice of Israeli Supreme Court. In Shamgar’s estimation, the West Bank and Gaza were not “occupied” but rather “administered” by Israel, and their status was sui generis‘, that is, in a class of its own or of its own kind” (Hajjar 2018).

Shamgar’s justification for such exceptionalism underlying his unique interpretation of International Humanitarian law (IHL) enshrined in the 4th Geneva Convention was that ”the extension of Israeli rule over any additional areas across the 1949 Armistice Line (the Green Line) deemed to constitute Eretz Israel would not be a “foreign occupation”, since ”Jews had historic rights in those areas, and because no other state had sovereign claim to them.” (Hajjar 2018).

Shamgar’s interpretation of IHL legitimated what essentially was the juridical erasure of Palestinians ( Noura Erakat), thereby depriving them of the legal protection afforded by International humanitarian and human rights law, while relegating their families and children to decades of brutal military administration.

A tale of deceit….

References

LISA HAJJAR: MEIR SHAMGAR’S LONG SHADOW, MESPI Editors, 5 June 2018.

Online: https://mespi.org/2018/06/05/lisa-hajjar-meir-shamgars-long-shadow/

Brown University, Costs of War, 2019) 

Online: https://watson.brown.edu/costsofwar/