Middle East: International Legal Order in the Era of Infamy and Impunity

By Chief Charles A. Taku*

Introduction

The international legal order which was established at the end of 2^nd World war to protect the world from self-destruction has since turned the conscience of humanity into battlegrounds for self-destruction. Casualties of the shadow of death hanging over humanity abound; among them the forgotten genocide of the Southern Cameroons which has received little world attention.  Yet, it is a creation of the United Nations multilateral treaty architecture.

The keen attention paid by the international community on the war in Ukraine and in the Middle East, while warranted, makes Southern Cameroonian victims of genocide and the infamy of impunity to wonder, and wonder aloud, whether the blood in their veins is indeed red as the blood in the veins of victims of atrocity crimes in Ukraine and in the Middle East between Israel and Hamas.

Due to my  relentless concern for the protection of civilians in armed conflicts, irrespective of race, ethnicity, religion and culture, I have deemed it necessary to provide my opinion of the ongoing carnage in the Middle East, the same as I have done on that in Ukraine and the ongoing genocide in the Southern Cameroons.

On  7 October 2023, the Palestinian  militant group Hamas attacked several locations in Israel killing over 1400 persons and taking more than 250 persons, among them Israeli citizens, soldiers and foreigners,  hostage.  The retaliation by Israel commenced on 8 October 2023, with incessant intense indiscriminate bombardment of alleged Hamas positions in  the Gaza Strip, followed with  a  complete blockade of  the Gaza strip, denying its 2.4 million residents essential subsistence necessities, such as water, food, fuel and electricity. Israeli attacks have  devastated the Gaza Strip and killed  more than 7800 Palestinians,  among them, children, women, the handicapped,  the sick and protected vulnerable groups.

Respect for International law

A requirement in the laws of war and  armed conflicts is to clearly define the enemy prior to a declaration of war. Israel has publicly defined Hamas as the enemy against whom it has declared war.  As a matter of law, the Israeli attacks must target Hamas and not Palestinian civilians who are protected by international law.

Within the context of Palestinian resistance to Israeli occupation of Palestinian lands, the nature of the relationship between Israel and its defined enemy, Hamas, is complex and hard to comprehend. The  nature and complexity of the relationship is highlighted by the fact that the  attack by Hamas in Israel bore the hallmark of careful planning, considerable knowledge of Israeli and its allied intelligence, security and defence architecture, and the  field and targets of operation.  It is hard to contemplate the  PLO and other Palestinian militant groups carrying out an attack of that nature  without being detected in time or crushed.

Having defined Hamas as the enemy, Israel is expected to know the enemy, to the extent that, it would scrupulously respect the laws and customs of war,  in carrying out its military operations to take out the said enemy. Indeed, it would evince every effort to avoid targeting civilians, protected civilian infrastructure and protected objects. This has not been the case as Israel has carried out intense bombardments of civilian settlements, places of worship, clearly marked humanitarian assistance locations, hospitals, schools and healthcare locations occasioning a high number of civilian casualties.

Many international actors, among them the most ardent supporters of Israel, have cautioned against conflating Palestine and Palestinians with the enemy against whom Israel has declared war in the ongoing collective punishment, which  is indiscriminately and disproportionately targeting the civilian population of Palestine. These attacks against civilians and civilian settlements constitute a violation of international humanitarian law by Hamas and Israel.

The declaration of war against the Palestinian territory under the pretext of exercising a right of self-defence under Article 51 of the UN Charter against Hamas is problematic in international law  because Hamas is not a state within the context of the UN Charter against whom a right of self-defence could be exercised. Hamas is a non-state actor.  An assertion of the right of self-defence against non-state actors was not contemplated by the UN Charter. The rise of non-state actors as key players in international relations and international law was not contemplated and therefore, not reflected in the UN Charter.

Israel and its allies have  defined Hamas as a terrorist group. The world today, finds itself without a clear and internationally acceptable definition of terrorism due to divergent interpretations based on conflicting legal, sovereign , ideological, cultural, and unilateral interests. Nevertheless, international crimes committed by non- state actors have been criminalised by Post 2^nd World war multilateral treaties and Ad Hoc Security Council Coercive arrangements.

The invasion and annexation of Palestinian land by Israeli since 1967 in violation of international law  is a root cause of this  conflict in which war crimes, crimes against humanity and genocide have been committed. Crimes committed by Hamas against Israeli civilians and crimes committed by Israel against Palestinian civilians, civilian protected settlements and protected objects must be condemned and persons responsible for the crimes must be held accountable.

Alleged “self-defence” or “state of necessity”

Israel might be justified in declaring war against Hamas for crimes which were committed against Israeli and foreign nationals during the attack  which was carried out by Hamas on 7 October 2023.  As stated above, the Israeli retaliatory attack against Palestinian civilians cannot  be justified under Article 51 of the UN Charter as legitimate self-defence or as pursuant to a state of necessity. This is due to the fact that the emergence of non-state actors, which Hamas is one, as significant actors in international law with tremendous capacity and resources to wage war, was not contemplated and envisaged in the UN Charter.

A legitimate right of self-defence is not available to Israel  as an occupying power over  occupied Palestinian land although in that capacity it could legitimately assert a right to protect the interest of Palestinians against transgressors but not against Palestinians, the legitimate owners of the land.

The International Court of Justice (ICJ)  in its “Advisory Opinion” on “The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

(9 July 2004)” concluded that the wall built by Israel across Palestinian land, “severely impended the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligations to respect that right”. In fact, The ICJ held that Israel could not rely on a "self-defence or on a “state of necessity” in order to preclude the wrongfulness on the construction of the wall, and that such construction was contrary to the international law. Then, Article 51 of the UN Charter is not relevant in the present case."

The intense indiscriminate bombardment of the Gaza strip by Israel has caused a high number of civilian casualties. The intense and indiscriminate systematic bombardment amount to collective punishment which is a violation of international law. There is no international law basis for Israel to impose collective punishment measures against 2.4 million Palestinian civilian population which Israel has caged and blockaded in the Gaza encampment for several years;  with limited access to the rest of the world, and cut off from  Israeli  Palestinian West Bank-tightly controlled encampment.

The endorsement by some Western nations of the collective punishment of Palestinians in violation of international law, makes their condemnation of the Russian attacks against Ukraine which have similarly been characterised as war crimes, crimes against humanity and genocide, farcical and hypocritical.  Providing unreserved support for indiscriminate intense bombardment and collective punishment of Palestinians, and condemning similar attacks against Ukraine, tantamount to unjustified duplicity in the face of ongoing  international infamy of impunity in the Gaza strip.

Some Western countries have joined Israel in declaring Hamas a terrorist organisation. The attack and crimes which were committed by Hamas against Israeli civilians and foreign nationals in Israel were not ordered, permitted or endorsed by the internationally recognised legitimate government of Palestine. The civilian population of Palestine in the Gaza strip and in the West Bank cannot be collectively punished for crimes which Israel publicly  alleged, were committed by Hamas, which it characterised as a terrorist organisation.

Both Israel and Palestine are subjected to international treaty obligations under the Geneva Conventions (1948). The state of Palestine did not and has not violated any of its multilateral treaties against Israel. It is rather Israel  which has violated international law and its multilateral treaty obligations against the state of Palestine and Palestinian civilians.   Indiscriminate attacks which Israel has engaged with intense ferocity against Palestinian civilians, cutting of water supply, electricity, fuel and  food and imposing a blockade of Gaza violates the following binding multilateral treaties:

The charter of the United Nations which Israel became a member on 11 May 1949 shortly after its creation;

Convention on the Prevention and punishment of Genocide (1948) which Israel ratified on 17 August  1949 and 9 March 1954 and  the Geneva Convention ( 1949) (I-V) which Israel ratified since 1951  and its Protocol III since 2007;

The state of Palestine represented by the PLO declared itself bound by the Geneva Conventions (1948) I-IV in 1982 and in 1990. Upon being granted  non-member observer status by the United Nations General Assembly in November 2012,the state of  Palestine acceded to the Geneva Conventions I-IV and Protocol 1 in April 2014 and Protocols II and III in January 2015. On 1 January 2015, the state of Palestine lodged an Article 12 declaration and was admitted as a state party of the International Criminal Court (ICC).

The recognized government of Palestine with observer status before the UN and a full member of the International Criminal Court (ICC) did not endorse the  attack by Hamas  and crimes which Hamas committed against Israeli civilians and  foreign nationals. The Israeli retaliatory response must therefore not indiscriminately target Palestinian civilians, civilian settlements, aid agencies, hospitals, critical civilian sustenance  and   subsistence infrastructure. Doing so is a violation of international humanitarian law and Israeli multilateral treaty obligations.

The UN Human Rights Council is right to condemn the use of collective punishment against the civilian population of Palestine by Israel as a retaliation against the attacks and crimes committed by Hamas.  Unqualified support for Israel for the ongoing carnage, is a celebration of international lawlessness, and the infamy of impunity. The caution by the USA that Israel should respect the laws and customs of war by avoiding civilian casualties in its military operations against Hamas is insufficient in the circumstances, considering the impunity and the intense ferocity of Israeli bombardments and the use of starvation as an instrument of war. There must be a more robust opposition to the glorification of impunity and blatant violation of international law by supposed gate keepers of post 2^nd world war international legal order. Israel must demonstrate a marked distinction with Hamas in conducting modern warfare in a manner which aligns with the laws of war. The contrary will be a setback for humanity. It is regrettable that human life is losing its value on the watch of the supposed civilised world.

Conclusion

Whatever the case, international humanitarian law is not against war as such, when justified and warranted; the reason why there exists a body of laws known as the law of armed conflicts and the laws of war. They concern themselves with the protection of civilians and protected objects during armed conflict. Israel should exercise restraint and comply with international law and its international state multilateral treaty obligations; including the UN Charter obligations  in its wide raging military campaign.

*Chief Charles Taku is a Former President of the International Criminal Court Bar Association and Legal Practitioner Before International Courts and Tribunals. The views expressed in this article are his.