Recent events show that international and humanitarian law are often no more than forms of convenient discourse for those at war.
Not so long ago, optimism reigned about the role of international law in limiting the impact of war on civilians and even beginning a process of more meaningful international governance. Recent events show that international law in general and humanitarian law in particular are no more than forms of convenient discourse for competing sides.
Russian President Vladimir Putin invokes international law to bolster his claim to the Crimea and is monstrously disingenuous when it comes to the shooting down of a Malaysian airliner.
American President Barack Obama keenly invokes international law against Russia and the Ukrainian rebels, but is silent about Israel’s conduct in Gaza. Critics of Israel lambast its Gaza bombardment as a flagrant breach of international law, but say little about events in Syria, Iraq or South Sudan. In all these cases, there is an egregious disregard for international law, which has thus achieved nothing when it comes to safeguarding civilians.
Israel is singled out because it claims to respect the canons of international law. Hence the despair: If Israel is in manifest breach of international law, what hope is there for other war-torn regions?
Of course, the well-organised Israel lobby in the United States denies that Israel is in any such breach. But examine the legal position. Briefly, there are two cardinal principles of international law expressly designed to protect civilians – distinction and proportionality.
The first, codified in the first protocol of the Geneva Conventions of 1949, provides that at all times parties to an armed conflict must distinguish between civilians and combatants, directing their operations against military objectives only.
The principle of proportionality requires that even military objectives may not be attacked if it is likely to cause civilian casualties, or damage excessive or disproportionate to the clear military advantage anticipated.
Significantly, the protocol says states should avoid locating military objectives near densely populated areas but, even if they are, the opposing military commander should adhere to the two cardinal principles of distinction and proportionality. The International Court of Justice holds that the obligation to distinguish between civilians and combatants is one of the cardinal principles of international humanitarian law and an immutable principle of international customary law.
Both Israel and Hamas have shown a flagrant disregard for these foundational principles. Firing thousands of rockets into another country with the sole objective of killing or maiming civilians is a textbook example of a breach of both principles by Hamas. The Israeli response has breached those principles but also in a way that is manifestly disproportionate to any consequences of a Hamas attack. Israel has inflicted deaths nearing 2 000 in number and more than 9?000 casualties, against about 70 fatalities on the Israel side.
It seems uncontested that Palestinian children playing on a beach were killed by Israeli fire and that United Nations schools sheltering displaced people have been hit, with tragic loss of life – even though the UN has on numerous occasions provided the Israeli Defence Force with the requisite co-ordinates to prevent such a disaster.
Sadly, the US and other supporters of Israel rationalise this – even as they justly accuse supporters of Hamas of doing the same with rockets. Are people’s lives in one nation more important than those in another?
Further, how then can there be any hope for international law when it is used in so partisan a manner? Were the international community to take international law seriously, attempts would immediately be made to ensure that an internationally mandated task team would, upon a properly supervised ceasefire, decommission the Gaza tunnels and the rockets, in exchange for the simultaneous lifting of the illegal Israeli blockade of Gaza.
Unfortunately, that is unlikely to happen, so many more innocent civilians will die, including children – all failed by the laws designed to protect them. And as even more civilians continue to perish in Syria, Iraq and South Sudan, the world and the international law community say even less. No wonder international law is seen as no more than a convenient political tool to be employed against one’s foes.