By Muhammad Idrees Ahmad

The assault on Gaza marks the end of an era for Israel. For the second time in two years its colonial ambition has floundered in the face of determined resistance. It may persist for some time; but the trajectory is clear – it is losing both legitimacy and power. Support for it is dwindling in Washington; its friends are alarmed. Citizens are acting where governments have failed; the movement for boycott, divestment and sanctions is snowballing. Apologists are finding it more difficult to justify its persistent criminality. Rifts have emerged in the transatlantic alliance over its recent actions; EU leaders have broken with Israel and the US, questioning the wisdom of continuing to isolate Hamas. Even the pliant Tony Blair will no longer toe the line.

This leviathan may yet be tamed, accountability restored; but what part, if any, will International law have played in this?

At one point in Errol Morris’s 2004 documentary Fog of War, former US Secretary of Defence Robert McNamara recounts a conversation he had had with General Curtis Lemay of the USAF apropos the fire bombing of Japanese cities. LeMay, according to McNamara, said that if the US ended up losing the war “we would be hanged for this”. As it transpired, the US did not lose; and far from being hanged, the allied command got to play hangman. (1) The trials that led to the execution of German and Japanese high command assumed a broader significance; they became the founding documents of international law. The conclusions from these trials served as the basis for the Genocide Convention (1948), the Universal Declaration of Human Rights (1948), the Nuremberg Principles (1950), The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity (1968), the Geneva Convention on the Laws and Customs of War (1949), its supplementary protocols (1977), and the International Criminal Court (2002).

As Kirsten Sellars details in her book The Rise and Rise of Human Rights, the Nuremberg trials and the subsequent Tokyo trials which would later provide the basis for international law were not themselves free of controversy. At the end of the war, Western powers saw Germany and Japan as potential allies in the looming conflict against the Soviet Union. However, the passions that had been mobilized against the Axis powers demanded blood sacrifice before Japan and Germany could be laundered back into the Free World. It was to satisfy this purpose that the tribunals were reluctantly instituted. While Justice Robert Jackson’s eloquent pronouncements on the rule of law in international affairs have become de rigueur in discourses on the subject, his contemporaries took a less generous view. US chief justice Harlan Stone called the whole Nuremberg exercise a “sanctimonious…fraud” accusing Jackson of conducting a “high-grade lynching party”. Justice William Douglas of the US Supreme Court accused the allies of “substituting power for principle” and creating laws “ex post facto to suit the passion and clamour of the time”. In his famous dissent at the Tokyo trials, Indian Justice Radhabinod Pal indicted the tribunal for its exclusion of European colonialism and the American use of the atomic bomb. The trial, he argued, was nothing more than an “opportunity for the victors to retaliate”. Antiwar US senator Robert Taft called it “victors’ justice”.

Power asymmetry has defined the application of International Law since. Gaza is a case in point.

Jus ad Bellum

Israel and its apologists have sought to justify its military assault on Gaza as an act of “self-defence” against Hamas rockets invoking Article 51 of the United Nations Charter. (2) So pervasive was this view that even putatively antiwar voices frequently worked the word “disproportionate” into their denunciations. Israel, according to this view, has a right to defend itself but used more force than was necessary. However, this argument relies on the inversion of cause and effect and a defective legal premise.

Israel’s assault was not meant to protect its citizens against the Hamas rockets, it was to protect its colonial project and the right to continue the strangulation of Gaza. Israel broke the truce on 4th November 2008 when under the cover of the US elections it launched an attack inside Gaza killing six Palestinians. The attack, writes Middle East scholar Sara Roy, was “no doubt designed finally to undermine the truce”, (3) as even according to Israel’s own intelligence agencies Hamas had implemented the ceasefire with remarkable effectiveness. Though Hamas retaliated with rockets, it still offered to renew the truce provided Israel ended the siege. Israel refused. (4)

Between the evacuation of its settlements from Gaza in 2005 and the beginning of its latest assault, Israel had killed a total of 1,250 Palestinians, including 222 children, and maimed many more. This despite Hamas’s 18 month unilateral ceasefire to which it strictly adhered. The situation was so dismal before the siege that the late Israeli historian and author Tanya Reinhart described it as “a process of slow and steady genocide”. (5) Sara Roy saw in it a deliberate process of what she calls “de-development”. The siege, in her view, had two objectives: to reduce the Palestinian issue to a humanitarian problem; and to “foist Gaza onto Egypt”. Israel’s economic stranglehold over the territory, she said, was leading to the “breakdown of an entire society”. (6)

The UN human rights rapporteur John Dugard, a South African legal scholar, has compared the situation in the Occupied Territories to Apartheid. His successor Richard Falk, an American Jew and a leading authority on International law, called the situation a “prelude to genocide”. Gaza, he said, was “slouching towards a holocaust” insofar as the situation expressed vividly “a deliberate intention on the part of Israel and its allies to subject an entire human community to life-endangering conditions of utmost cruelty”. Falk accused Israel of bringing Gaza to the “brink of collective starvation”, imposing “a sub-human existence” on a people “repeatedly and systematically” victimized. Poignantly, he added:

“To persist with such an approach under present circumstances is indeed genocidal, and risks destroying an entire Palestinian community that is an integral part of an ethnic whole. It is this prospect that makes appropriate the warning of a Palestinian holocaust in the making, and should remind the world of the famous post-Nazi pledge of ‘never again’.”(7)

On 5th November, Israel sealed all entries and exits to Gaza and intensified the stranglehold.

For Gaza – a region whose unemployment rate is 49.1 percent, where the majority relies on food aid (from the World Food Program and UNRWA, the latter alone feeding about 750,000 Gazans), and 50 percent of whose population comprises children – the consequences were devastating. Roy reports that according to Oxfam, an average of 4.6 trucks per day entered Gaza in November 2008 as compared to 564 trucks a day in December 2005. There were three days where 20,000 went without food and on 18 December UNRWA had to suspend food distribution altogether. On top of that, the WFP had to pay more than $300,000 to Israeli businesses in November and December for storage of the food being withheld from Gaza. Thirty out of Gaza’s forty-seven commercial bakeries had to close for the lack of cooking gas; by April there will be no poultry on which 70 per cent of Gazans rely for their protein. UNRWA’s cash assistance to the most needy had to be suspended. The embargo on paper, ink and glue needed for the production of textbooks would affect 200,000 students. (8)

Gaza faces regular shortages of diesel, petrol and cooking gas. On 13th November, Gaza’s only power station suspended operations because it ran out of industrial diesel. Spare parts for the power station were auctioned by Israel after being held in customs for eight months. Gaza’s hospitals have had to rely on diesel and gas smuggled from Egypt via the tunnels. In an attempt to undermine Hamas, Israel’s surrogates in the Palestinian Authority (PA) withheld World Bank funds from Gaza’s Coastal Municipalities Water Utility (CMWU) to pay for fuel to run Gaza’s sewage system. Israel has allowed in only 18 of the 200 tons of chlorine requested by CMWU for water purification. While medical supplies in Gaza have been running dangerously low, the collaborationist PA has been turning supply shipments away rather then send them to Gaza. (9)

It was within this context that on 19th December Hamas officially ended its truce.

All of this is significant, as in ’67 Israel used Nasser’s blockade of the Gulf of Tiran as the casus belli for its pre-emptive attacks on Egypt, Syria and Jordan – the fateful war where it captured the West Bank and Gaza Strip. Unlike Gaza, however, Israel faced no shortages of food, fuel or medicine – indeed, trade continued unimpeded all across its main air- and sea ports (all of which are located on the Mediterranean coast). Yet, in spite of the facts, ’67 has entered mainstream discourse as a legitimate case of pre-emptive self-defence under Article 51 of the Geneva Conventions. The precedent was even invoked by Colin Powell when on February 5, 2003 he made his case for invading Iraq at the UN Security Council. If Israel was within its rights to launch a pre-emptive war in ‘67 – a highly tendentious proposition – then the Palestinians most definitely had a similar right. It is not only enshrined in the Fourth Geneva Convention, it is also accorded them by virtue of Israel’s denial of basic necessities.

But what of International law?

The use of force is an act of last resort under international law subject to the customary rules of proportionality and necessity. As a signatory to the Geneva Conventions, Israel has a right to defend itself against attacks; but it has no right to do so by force. In order to use force, it will have to show that other options were not available. This was clearly not the case. It had the option to end its occupation, withdraw from Palestinian land, and accept the international consensus on the two-state solution. It also had more immediate options: it could have agreed to renew the truce and end the crippling siege of Gaza. The Hamas government had made three separate peace offers over a period of two years through veteran Israeli peace activist Gershon Baskin, including one a mere two weeks before the assault. Relayed through a family member of Israeli Prime Minister Ehud Olmert all of these overtures were rebuffed. (10) In spurning this opportunity Israel had forfeited any claims to self-defence. Had Hamas attacked after Israel had tried all these options, writes political scientist Jerome Slater, “then–and only then–would it have a true ‘right of self defense’”. It is also the only condition under which the question of proportionality would arise.

The rocket attacks had not killed a single individual before Israel began its assault; had they done so, they would still not entitle Israel to kill 1,300 Palestinians, mostly civilians, injure 5,000 and destroy schools, mosques, homes, UN compounds and government buildings. As the occupying power Israel has no rights under the Fourth Geneva Convention, it has only obligations – including a responsibility to protect Palestinian civilians and infrastructure. And as the occupied the Palestinians have a right to resist Israel’s oppression. Writes Slater: “An oppressor is not engaged in ‘self defense’ when it uses force in order to annihilate resistance to its repression, and that holds true even if the form of resistance–attacks intended to kill civilians–is itself morally wrong”. The fact is lost on no one, except perhaps the BBC and CNN, that Israel’s occupation predates both the rockets and Hamas. “Israel’s actions amount to aggression, not self-defence,” wrote distinguished lawyers and legal scholars in an 11th January 2009 letter to the Sunday Times, “not least because its assault on Gaza was unnecessary”. They added:

“As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5m inhabitants contrary to international humanitarian and human rights law. In addition, the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes.”

That the Palestinians also have a right to self-defence is not an issue the UN Security Council would even allow anyone to raise. Instead, there are feeble pleas for ‘restraint’. In lieu of an investigation, in the initial phase of the massacre some UN officials dignified the Israeli claim that a mere 25 percent of the Palestinian casualties were civilians (in fact the majority were police trainees killed at their graduation). The notoriously undemocratic executive arm of the UN continued to treat the assault as a ‘war’, even though Gaza is recognized as an Occupied Territory, according Israel the right to ‘defend itself’ itself, albeit ‘proportionately’. In reserving their condemnation exclusively for the targeting of ‘women and children’, the UN was also declaring Gaza’s male population fair game. Despite the verdict of international law experts that Israel’s murder spree in Gaza constitutes war crimes and crimes against humanity, writes Omar Barghouti,

“this UN discourse not only reduces close to half a million Palestinian men in that wretched, tormented and occupied coastal strip to “militants,” radical “fighters,” or whatever other nouns in currency nowadays in the astoundingly, but characteristically, biased western media coverage…it also treats them as already condemned criminals that deserve the capital punishment Israel has meted out on them.” (The Electronic Intifada, 1 January 2009)

Jus in Bello

Israel made no bones about its attacks on civilian targets: one army spokeswoman declared that “[a]nything affiliated with Hamas is a legitimate target”; another added that “we are trying to hit the whole spectrum, because everything is connected and everything supports terrorism against Israel”. The government which had only a year earlier rejected the results of an election which had seen Hamas take the majority of the vote, was suddenly willing to acknowledge the party’s popularity so it could hold it against the whole population of Gaza as evidence of their support for “terrorism against Israel”. (11) As the democratically elected government of the Palestinian people all of Gaza’s civilian infrastructure was thus “affiliated” with Hamas and hence a legitimate target. In the very first hour of its assault Israel bombed the Palestinian Legislative Council, the Ministries of Education and Justice, the Islamic University of Gaza, mosques, ambulances and many homes. Palestinian civilian infrastructure was subjected as a whole to Israeli terror. By the end, Israel had destroyed 4,700 homes completely or partially, leaving tens of thousands of people homeless.

Sara Roy implored the world in the name of International law – and “human decency” – to protect the people of Gaza. Perhaps the appeal to human decency is a tacit acknowledgment of the irrelevance of international law where it doesn’t align with the interests of major powers. As Conor Gearty notes, the assault on Gaza “has laid bare the relative impotence of international law in the face of determined sovereign action”. (12) Like Roy and Gearty, Falk also places little faith in International law for redress. It would be unrealistic, he writes, “to expect the UN to do anything in the face of this crisis, given the pattern of US support for Israel and taking into account the extent to which European governments have lent their weight to recent illicit efforts to crush Hamas as a Palestinian political force”. (13)

The impotence of the mechanisms for enforcing International law was exposed in Israel’s refusal to heed the UN’s calls for a ceasefire. Israel blithely ignored the UN Security Council’s call on 8th January 2009 for “an immediate, durable and fully respected ceasefire”. Likewise, it ignored the strong statement by High Commissioner for Human Rights, Navi Pillay, the next day about the applicability of international human rights law “in all circumstances and at all times”. Pillay stressed that the violations of these laws “may constitute war crimes for which individual criminal responsibility may be invoked”. She urged the UN’s Human Rights Council to “consider authorizing a mission to assess violations” in order to establish “the relevant facts and ensure accountability”. The Council in its resolution said that it “strongly condemns the ongoing military operation” for its “massive violations of human rights of Palestinian people and systematic destruction of the Palestinian infrastructure”; it was particularly outraged at the Israel’s “targeting” of UN facilities. At the conclusion of the assault, Ban Ki Moon, the UN Secretary General himself, visited Gaza. He said he was “appalled” by the destruction, which he found “outrageous and totally unacceptable” and called for the perpetrators to be “punished”.14 The UN has called for the attack to be investigated as a war crime.

Writes Gearty:

“The anger evident in all this UN activity, and in particular the passion evident in the High Commissioner’s choice of words, is founded upon the blatancy of the disregard of the law that has been evident in Gaza.” (The Tablet, January 2009)

In a highly unusual move, the International Committee of the Red Cross (ICRC) broke with convention to condemn the Israeli military for breaching international humanitarian law when it refused access for four days to a Zeitoun neighbourhood where four small children were later found starving among twelve corpses, including those of their mothers. The incident also occasioned one of the most extraordinary moments in the history of British journalism when Alex Thomson of Channel 4 subjected the Israeli spokesperson Mark Regev to an unrelenting interrogation ending with the plea, “In the name of humanity what is Israel doing?” (15)

While Israel may have taken a hit in terms of its image – already the worst brand in the world, according to a 2006 poll (16) – a wave of boycotts sweeping Europe also adds economic pressure. “But in the absence of any kind of enforcement mechanism,” writes Gearty, “the legal effect of all this international noise has been for all practical purposes zero”. Absent an international adjudicative body to which Israel is required to defer, he writes, the worse Israel has to fear is five minutes of interrogation on the media, which is itself a rare occurrence. Israel’s claim to self-defence “might not be able to survive a few hours in a court of law”, Gearty avers, but with a mostly pliant media already humming with a chorus of friendly ‘academic terrorism experts’ and ‘defence analysts’ Israel is all but immune from accountability. (17)

It was Israel’s ’67 pre-emptive attacks on neighbouring Arab states and Reagan’s March 1986 bombing of Libya – both invoking Article 51 of the UN charter – that demonstrated that unilateral action was possible without eliciting any legal repercussions. The US refusal to join the International Criminal Court, and Israel’s repeated rejection of its jurisdiction, is transforming the whole concept of international law is revealed so far to be a farce. The only people brought to trial in the Hague have all belonged to countries either on the short end of the unipolar world’s stick, or to countries in which major powers have no vested interests. The irony of the US supporting the ICC’s prosecution of Sudanese president Omar al-Bashir while itself refusing to ratify its charter is lost on few in the outside world. Under these circumstances, warnings about criminal responsibility are seen as little more than empty threats. International law has hitherto served no purpose other than to lull the aggrieved into believing that verbal indictments are somehow a substitute for justice.

The End of Impunity?

Concerns about prosecutions at the Hague led the Bush administration to repeal the US signature from the treaty enabling the ICC and in 2002 to pass the American Service Members Protection Act (ASMPA), more commonly known as the Invasion of The Hague Act which permits the United States to unilaterally invade the Netherlands to liberate any military personnel and other elected and appointed officials held for war crimes. The US also pressured weaker states around the world to sign ‘bilateral immunity’ policies that require them to sign a waiver stating that they will contravene the ICC in the case of Americans being arrested. Those who do not comply risk losing US military assistance: Kenya and Trinidad-Tobago, for example, learned this the hard way. According to the Observer, ICC prosecutor Luis Moreno-Ocampo is already pursuing seriously the legal instruments that would allow him to put Israelis on trial for war crimes. (18) Fear of prosecution has already caused the Israeli government to launch an international campaign to defend its legal position while and at the same time redacting names written reports and masking photographs of military personnel involved. Director of the Israel Law Center, Nitsana Darshan-Leitner, has opted for bluster, urging the Knesset to legislate a law prohibiting cooperation with any war crimes tribunal and to pass an ASMPA-style Invasion of the Hague law. “Foreign countries should be made to understand we mean business”, she added.

Obstacles remain, however, and precedents of the actual implementation of international law demand one to attenuate expectations. It is this recognition that has led some to consider using the universal jurisdiction laws enshrined in the legal codes of several European countries to bring US and Israeli war criminals to the dock. Several Israelis have already had close brushes with the law in Europe. In 2001 prosecutors in Belgium filed a war crimes indictment against Ariel Sharon and Gen Amos Yaron for their responsibility in the massacre of Palestinians in Lebanon. The case was later dismissed by an appeals court on a technicality. On 10th September 2005, Israeli general Doron Almog escaped arrest on arrival in London only through a last minute warning from someone at the foreign office (one senior foreign office official Kim Howells is a former chairman of the Israel Lobby organization Labour Friends of Israel). Had he disembarked, he would have faced arrest for violations of the Geneva Convention in carrying out house demolitions in Gaza.

Using the same laws that led to the 1998 arrest of the former Chilean dictator Augusto Pinochet, Spanish judge Fernando Andreu has launched an investigation of Israeli officials over a 2002 bombing where a one-ton bomb dropped on a densely populated Gaza neighbourhood had killed fifteen, including nine children. Those charged include former defense minister, Binyamin Ben-Eliezer; former chief-of-staff, Moshe Ya’alon; former airforce chief, Dan Halutz; head of Southern command, Doron Almog; head of National Security Council, Giora Eiland; the defense minister’s military secretary, Mike Herzog; and head of Shin Bet, Avi Dichter. The Israel lobby flexed its muscle, and foreign minister Tzipi Livni was soon claiming that she had been assured by her Spanish counterpart, Miguel Moratinos, that his government would amend its laws to diminish the possibility of investigating torture and war crimes committed outside Spain. This however was immediately contradicted by Deputy Prime Minister Mar