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Justice, Insurgency and the Gaza War: An International Law Perspective

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“Justice is a contract neither to do nor to suffer wrong.”-Plato, Republic[1]

Abstract: This essay will  focus upon current issues of insurgency,[2] counterterrorism and Humanitarian International Law in the Middle East. As Israel and Hamas now confront each other in another Gaza war, both should correctly identify and accept only proper criteria of jurisprudential assessment. Accordingly, the legal argument here will not be intentionally for or against any particular Arab or Israeli policies, but to underscore an unceasing global requirement to apply uniformly correct standards of pertinent international law. In the final analysis, following Plato, justice in this urgent matter must be a “contract” between parties “neither to do or to suffer wrong.”

It is time for candor. Former US President Donald J. Trump’s “Abraham Accords”[3] did nothing to confront the long-standing Palestinian insurgency against Israel. On the contrary, these contrived agreements were designed only for Trump’s domestic political benefit, and angered the Palestinians without providing either side tangible benefits. Jerusalem, therefore, must continue to defend itself against assorted charges of “disproportionality.” Now, more or less inevitably, there will emerge yet another unpredictable “cycle of violence.”[4]

               What does international law say about these rapidly dissembling circumstances? What are the legal requirements of “proportionality” under the Law of War or Humanitarian international Law.[5] Looking ahead, these requirements ought never to be ignored or disregarded. In essence, these concern not merely specific adversarial issues in an anarchic world politics, but core matters of a long-settled jurisprudence,

               In law, especially, words matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence in the use of military force. Under authoritative international law, especially the Law of War, the standard of proportionality is never just a consideration of intuition or “common sense.” Above all, it is a matter of Reason,[6] an integral foundation of all codified and customary international law.[7] Among other things, this standard seeks to ensure that every belligerent’s resort to armed force remain limited to what is “necessary” to meet appropriate military objectives.[8]

               In these times, though we still speak narrowly of “international law,” every identifiable belligerent includes not only states, but also insurgent and terrorist armed forces.[9] This means, inter alia, that even where an insurgency is presumptively lawful – that is, where it seemingly meets the criteria of a “just cause” – it must still satisfy all corollary expectations of “just means.” To the issue here at hand, even if Hamas and Palestinian Authority have a presumptive right to fight militarily against an Israeli “occupation,” that fight still needs to respect the legal limitations of “discrimination,” “proportionality” and “military necessity.” More precisely, deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations always represents a crime of war.

               In the second case, the pertinent crime is formally known as “perfidy.”

               There is more. Under no circumstances does the principle of proportionality suggest that either party to an ongoing conflict must impose only symmetrical harms upon the enemy. If that sort of “common sense” suggestion were actually correct, there would be no modern historical equivalent to America’s flagrantly “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency. These US attacks would represent the modern world’s very worst violations of Humanitarian International Law.

               All too often, in the seemingly endless Palestinian belligerencyagainst Israel, background is merely glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad and related terror groups, take verifiable steps to ensure that Israeli reprisals willkill or injure Arab noncombatants. To wit, by placing selected noncombatants in those areas from which Arab rockets are launched into Israeli homes, hospitals and schools, Palestinian leaders – not Israeli defenders – are violating the most fundamental expectations (more technically, “peremptory” or “jus cogens” expectations) of humanitarian international law.[10]

                 Any use of “human shields” represents substantially greater wrongdoing than simple immorality or cowardice. It expresses a starkly delineated and punishable crime.  Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations specifically disallow any placement of military assets or personnel in populated civilian areas. Related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949.  These rules are also binding on the discrete but still-intersecting basis of customary international law, a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.[11]

               All combatants, including Palestinian insurgents allegedly fighting for “self-determination,”[12] are bound by the law of  war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949.[13] It cannot be suspended or abrogated.

               Some Palestinian terror groups, especially in the aftermath of a disregarded or imposed peace settlement, may seek to prepare for launching mega-terror attacks on Israel. Such aggressions, plausibly unprecedented and possibly in cooperation with variously allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. In the worst-case scenario, especially if Iran should agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could sometime have to face Palestinian-directed nuclear terrorism.[14] Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace a formal leadership cadre in “Palestine,” and that Israel (and relevant allies) could then have to face a more starkly insidious source of atomic terror.[15]

               What happens then, when combatants find themselves in extremis atomicum?

               There is more. Though former US President Donald Trump was likely correct that ISIS had already been effectively eliminated as an organization, the underlying Jihadist ideology was anything but removed or defeated.[16] To best predict possible outcomes, analysts and policy-makers will need to continuously refine their skills for capably dialectical reasoning.

                Always, however perilous a perceived threat, Israel has sought to keep its essential counterterrorism operations consistent with applicable law. For their part, however, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. Significantly, terror-violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or hoped) to produce greater intercommoned harmony. [17]

               From the standpoint of international law, terrorism is more than just bad behavior. It is a distinct crime under international law. Such crime is neither minimized or exonerated by partisan intimations of “just cause.”

               Various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side must bear full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent their pre-meditated attacks on Israeli civilian populations, there would be no reciprocal Palestinian harms. Though Israeli military operations do kill and wound Arab noncombatants in every “cycle of violence,” these casualties are unavoidable and inadvertent. When Hamas rockets are launched against Israeli targets from Gaza, the acknowledged Palestinian intent is to kill and wound Israeli civilians.

               In law, all law, criminal intent or mens rea is singularly important.

               International law is not a suicide pact. Even amid long-enduring Westphalian anarchy,[18] it offers an authoritative body of rules and procedures that clearly permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when certain Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through mass-murder of “unbelievers,” the wrongdoers have no residual legal claims to sanctuary.[19]

               There is more.Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.”  Unambiguously, in law, this category of murderers must invite punishment wherever they are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “No crime without a punishment.”[20]

               There is a manifestly non-legal but still significant point that remains germane to wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Prima facie, these commanders are not eager to become “martyrs” themselves.

               Few Americans have even glanced at the nation’s Constitution. Derivatively, many US critics of Israel remain determinedly unfamiliar with the laws of war of international law. Just as seriously, they fail to recognize that these laws represent an integral and incorporated part of the domestic or municipal law of the United States. The US Constitution, especially Article 6 (the so-called “Supremacy Clause”) and several corollary Supreme Court decisions, particularly the Paquete Habana (1900),[21] codify this authoritative incorporation.

               Inter alia, this means that consistent misuse of relevant international law represents a wrongful interpretation of American Constitutional law. It is especially vital that major political parties and leaders now become better acquainted with the governing laws of war, and conscientiously apply these basic rules with fairness to all instances of international armed conflict. In the final analysis, the core issue concerning Humanitarian International Law here is not about Israel and the Palestinians per se, but instead the willingness of all major states in world politics to sustain uniformly civilized standards of global military conduct. and conflict resolution.[22]

               There must be evident an ethical or humanitarian calculus in all these particular circumstances. Although an ideal world order would contain “neither victims nor executioners,” such an optimal arrangement of global power and authority is not yet on the horizon.[23] Confronting what he once called “our century of fear,” Camus asks his readers to be “neither victims nor executioners,” living not in a world in which killing has disappeared (“we are not so crazy as that”), but wherein killing has become per se illegitimate. This is certainly a fine expectation of philosophy, but not one that can be harmonized with strategic or jurisprudential realism.

               For the moment, Hamas and its allies continue to adhere to knowingly wrongful definitions of “proportionality,” that is, manipulative definitions calling for “equivalence.” At the same time, Israel continually alleges an inherent right to broad targeting strategies that is based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for inadvertent IDF harms inflicted upon noncombatant Palestinian populations, such verification could also undermine tactical successes. In the best of all possible worlds, both Israel and Hamas would simply accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong,” but this “Westphalian” world is still based less on abstract considerations of law and justice than on crudely zero-sum competitions for power and advantage.

               What next? As long as states (e.g., Israel) and aspiring states (e.g., “Palestine”) exist in a world of international anarchy –  that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648[24] – conflicts such as the Israel-Hamas Gaza War will continue to be treated as adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the enforcement of international law will depend largely upon the cooperative interactions of several major states, especially the United States. In this connection, great responsibility will fall upon the American president and Congress to speak on behalf of a conspicuously more law-enforcing orientation to international law. In specific reference to Israel, Hamas and the Gaza War, this will mean an obligation to (1) abjure narrowly contrived definitions of “disproportionality;” and (2) acknowledge a broad Israeli right to self-defense against terror wherever Palestinian resort to “human shields” or perfidy can be suitably verified.

               Truth is exculpatory. This is not yet the best of all possible worlds, but it is assuredly the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, measured Israeli bombings of Gaza structures harboring Hamas terrorists or weapons are always lawful and law-enforcing, but only in those cases where Jerusalem can supply convincing evidence of Palestinian “perfidy.” Though meeting such a legal obligation to gather verifiable evidence of Palestinian perfidy during an ongoing belligerency is ipso facto problematic, dispensing with this obligation altogether could leave Israel suspended under a perpetual cloud of generalized suspicion and disbelief.[25]

               What is to be done now? Whatever the differences between them, all sides to this still-escalating conflict have a coinciding and interdependent obligation to support Humanitarian International Law. Among other things, it is the de facto and de jure responsibility of the United States and other world powers[26] to insist that both Israel and the pertinent Palestinian organizations meet this overriding obligation. In the end, such a complex task would represent not “only” matters of ethical and dignified behavior, but also ones of seriously intellectual[27] and cosmopolitan[28] thought.


[1] See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.

[2] For a discussion of authoritative criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27

[3] https://www.state.gov/the-abraham-accords/

[4] In the past, such cycles have been widely described as “cycles of violence in the Middle East.” See, by this writer, Louis René Beres, https://www.israelnationalnews.com/Articles/Article.aspx/19415; and at Harvard Law School,

[5] The principle of proportionality is contained in both the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello).  In the former, proportionality relates to self-defense.  In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited (See notably Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited”).

[6] The primal importance of reason to legal judgment was prefigured in ancient Israel.  Jewish theory of law, insofar as it displays the influence of Natural Law, offers a transcending order revealed by the divine word as interpreted by human reason.  In the words of Ecclesiastics 32.23, 37.16, 13-14:  “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in a high tower….”

[7] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).

[8] The related principle of “military necessity” is defined authoritatively as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.” See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1.

[9]Applying the laws of war to insurgent participants dates to the four Geneva Conventions of 1949. As more than codified treaties and conventions comprise the law of war, it is plain that the authoritative obligations of jus in bello (justice in war) are part of “the general principles of law recognized by civilized nations” (from Art. 38 of the Statute of the International Court of Justice) and bind all categories of belligerents. Additionally, Hague Convention IV of 1907 declares that even in the absence of a precisely published set of guidelines regarding “unforeseen cases,” the operative pre-conventional sources of humanitarian international law still obtain and govern all belligerency.

[10] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[11] On the main corpus of jus in bello or humanitarian international law, see:  Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907.  36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.

[12] Doctrinally, Palestinian hostility to Israel is oriented to removal of the Jewish State by attrition and annihilation. This unhidden orientation has its foundations in the PLO’s “Phased Plan” of June 9, 1974. In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.” The proposed sequence of violence is expressed as follows:  FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); SECOND, “to use that territory to continue the fight against Israel” (Art. 4); and THIRD, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory, i.e., to eliminate Israel” (Art. 8).

[13] According to the rules of international law, every use of force must be judged twice:  once with regard to the right to wage war (jus ad bellum), and once with regard to the means used in conducting war (jus in bello).  Today, in the aftermath of the Kellogg-Briand Pact of 1928, and the United Nations Charter, all right to aggressive war has been abolished.  However, the long-standing customary right of self-defense remains, codified at Article 51 of the Charter.  Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum.  The laws of war, the rules of jus in bello, comprise (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules.  Codified primarily at The Hague and Geneva Conventions (and known thereby as the law of The Hague and the law of Geneva), these rules attempt to bring considerations of discrimination, proportionality and military necessity into belligerent calculations.

[14] Professor Louis René Beres is author of one of the earliest books on the subject of nuclear terrorism: Terrorism and Global Security: The Nuclear Threat (Boulder, Colorado: Westview Press, 1979). For assessments of nuclear war consequences by this same author, see: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd. ed., 2018); Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington MA:  Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (Lexington MA; Lexington Books, 1984); and Louis René Beres, ed.,  Security or Armageddon: Israel’s Nuclear Strategy (Lexington MA:  Lexington Books, 1986).

[15] Such sources could include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy attempts against this Israeli plutonium-production reactor, both by a state (Iraq) in 1991, and by a Palestinian terror group (Hamas) in 2014. Neither attack was successful, but relevant precedents were established. For more on the specific threat to Israel’s nuclear reactor facilities, see: Bennett Ramberg, “Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium-Production Reactor,” Arms Control Today, May 2008, pp. 6-13. See also, by the same author: Bennett Ramberg, “The Next Chernobyl May Be Intentional,” Reuters, April 26, 2016.

[16] See, by Professor Louis René Beres at Oxford University Press:  https://blog.oup.com/2016/11/isis-security-ideology/

[17] It would be similarly unrealistic for Israeli planners to count on some form of Palestinian – state “demilitarization.”  See, by Professor Beres, “Demilitarizing Palestine,” at Oxford Yearbook of International Law, Oxford University Press, 2018, pp. 191-206. See also, with Israeli Ambassador Zalman Shoval: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Zalman Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vol. 28, No. 5, November 1995, pp. 959-972.

[18] This de facto condition of Westphalian anarchy stands in contrast to the jurisprudential assumption of solidarity between states. This law-based assumption concerns a presumptively common legal struggle against both aggression and terrorism. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit Des Gens, Ch. 19 (1758).

[19]In the Arab Middle East, where theological doctrine divides carefully into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have long been taken as an exemplary expression of sacredness. Here, individual sacrifice derives, in large part, from a fervidly hoped-for conquest of personal death. By adopting such atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality, not to mention other substantially seductive and corollary benefits. For Hamas, which ultimately seeks power in a new state of Palestine, there are certain obligatory aspects of sacrificial terror that must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Jew,” and the reciprocal sacrifice of “The Martyr” – is explicitly codified within the Charter of Hamas, as a “religious” problem.” See, by this author, Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/

[20] This is also a “Higher Law” or “Natural Law” principle. In his DE OFFICIIS, Cicero wrote:  “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal…. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow.  But there will be one law eternal and unchangeable binding at all times and upon all peoples.”  See also DE LEGIBUS, Bk. i, c, vii.  Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….”  See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”). Thomas Aquinas recalls Augustine as follows:  “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice.  But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law.  Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law.  And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’ Entreves, supra, pp. 42 – 43

[21] In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”  See The Paquete Habana, 175 U.S. 677, 678-79 (1900).  See also:  The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).

[22] Such standards may have to be assessed not only in the context of a long-standing Westphalian anarchy, but also in a conceivably emerging chaos. Nonetheless, there are still places wherein chaos is seen as much as a source of potential human betterment as one of declension. In the Hebrew Bible, for relevant example, chaos is regarded as that condition which prepares the world for all things, both peaceful and violent, both sacred and profane. Moreover, as its core etymology reveals, chaos represents the yawning gulf or gap wherein nothing is as yet, but also where civilizational opportunity must inevitably originate. The German poet Holderlin observed accordingly: “There is a desert, sacred and chaotic, which stands at the roots of the things and which prepares all things.” Even in the ancient pagan world, the Greeks regarded such a desert as logos, which indicates to us that it was then presumed to be anything but starkly random or without conceivable merit.

[23] This phrase is taken from Albert Camus, Neither Victims nor Executioners (Dwight Mc Donald., ed., 1968)).

[24] The historic Peace of Westphalia (1648) concluded the Thirty Years War and created the still-existing state system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the “Peace of Westphalia.”

[25] To Wit: See: https://www.yahoo.com/news/ap-top-editor-calls-probe-163811444.html

[26] The permanent members of the UN Security Council would be an appropriate place to begin.

[27] In the 17th century, French philosopher Blaise Pascal remarked prophetically in Pensées: “All our dignity consists in thought. It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century contemporary. In Book II of Ethics, Spinoza considers the human mind or “intellectual attributes,” and drawing from René Descartes defines a comprehensive theory of human learning.

[28] According to Talmud: “The earth from which the first man was made was gathered in all the four corners of the world.”

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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International Law

Syria: Rules-Based International Order Creates Humanitarian Rule, Not Law?

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The world community survived the UN vote on the mechanism for delivering cross-border aid to Syria. On the agenda was the issue of the Bab al-Hawa checkpoint, which stopped functioning on July 11, 2021. This checkpoint on the Turkish-Syrian border is the last of four to be shut down since the mechanism began its work. It supplies humanitarian aid to the last de-escalation zone in northwestern Syria – Idlib province. Control over the province is held by various anti-government and terrorist groups, principally Hay’at Tahrir al-Sham, otherwise known as HTS (formerly Jabhat al-Nusra, associated with al-Qaeda, banned in the Russian Federation).

Humanitarian aid vs. sanctions

According to UN Secretary General Antonio Guterres, more than 70% of the population of northwestern Syria is in need of humanitarian assistance. These include 2.7 million displaced persons (it is believed that the population of Idlib province is about 4 million people). In this regard, Guterres called for a one-year extension of cross-border operations. Ankara, Washington and a number of Western countries need to extend the mechanism of cross-border operations in Idlib through Turkey. Syria itself, as well as the states supporting it, including Russia, believe that all the necessary humanitarian aid can proceed through interaction with the de jure Syrian government in Damascus. The main task for Damascus, on the one hand, and healthy opposition forces in Idlib, on the other, is to ensure humanitarian access across the contact line. Regarding humanitarian access, non-governmental organisations often have questions for both Damascus and the opposition groups.

The topic of cross-border humanitarian operations, according to US President Joe Biden, was discussed at his meeting with Russian leader Vladimir Putin in Geneva. American officials later reported that no agreement was reached on the preservation of cross-border humanitarian assistance. At the same time, unnamed American officials shared with the media statements such as: “… We made it clear that this [cross-border operations] is very important to us if we are going to continue our cooperation on Syria. ”

This logic, in which Russia should allow cross-border operations, and in return rely on potential cooperation on Syria sometime in the future, is seriously flawed, especially in the context of US sanctions against Syria, which have seriously undermined the overall humanitarian situation in the country.

The Caesar Act, passed by the US Congress in 2020, has been the most serious legislation introducing sanctions against Syria; among other things, it limits the interaction of Damascus with third countries. As part of the discussion on June 17 at the Valdai Discussion Club, titled “The Humanitarian Crisis in Syria: Is It Just the Beginning?”, Hames Zreik, CEO of the Damascus Centre for Research and Studies, said that the Western sanctions were supposedly introduced to weaken the political system, while in reality their impact is such that only the Syrian people suffer.

Today in the West, there is no logic that would lead to the successful provision of humanitarian aid; but more importantly, it does nothing for the country’s economic recovery. For the West, any conversation about reconstruction begins with a political settlement, while the topic of humanitarian aid is strictly politicised. But someone should already raise the question of what the sanctions policy has achieved in recent years, other than the deterioration of the humanitarian situation of the Syrian population. Is it not worth starting a revision of this outdated and ineffective policy, as well as a reassessment of the conflict based on the realities of today? This is not 2014, when decisions were made on cross-border humanitarian operations as an exceptional measure; the situation in the region has changed. Several facts indicate that such an opinion is at least being taken into account by the Joe Biden administration. There are reports that the American administration is considering the idea of curbing the use of sanctioned weapons (to correct a “vicious” practice under former President Donald Trump). In addition, the Biden administration has decided not to extend the exemption from sanctions of American Delta Crescent Energy, which was developing oil fields in northeastern Syria (where the Americans are present illegally as occupiers). It seems that Moscow and Washington still retain opportunities for a dialogue on Syria and, with due effort, could try to jointly unleash the accumulated tangle of contradictions.

Aid in the wrong hands

The current military-political situation in Idlib has long been cause for concern among international organisations providing humanitarian assistance. Funding for NGOs in Idlib dropped dramatically in January-February 2019, after the establishment of complete domination over the province by the HTS, headed by Abu Muhammad al-Julani. The transparency of the provision of aid in Idlib has decreased. A number of international NGOs have withdrawn from Idlib both in the face of a terrorist threat and realising that the humanitarian aid they provided could fall into the wrong hands. Nevertheless, Abu Muhammad al-Julani and the HTS militants have managed not only to establish control over the province, but also made a number of decisions to whitewash the terrorist group in the West. This rebranding, which al-Julani has been engaged in more than once since the days of his ties with Daesh (banned in the Russian Federation), is supported by certain circles in the West. This became clear in connection with recent reports of Russian diplomatic sources in the media about direct contacts between representatives of Western intelligence services (such as Jonathan Powell of MI6) and Abu Muhammad al-Julani near the Bab al-Hawa checkpoint.

Closing the Bab al-Hawa checkpoint for cross-border humanitarian operations would seriously affect the humanitarian situation in Idlib. Russia has decided to extend the mechanism for providing assistance through this checkpoint. However, time should not be wasted. An international effort is needed to move humanitarian convoys to Idlib across the contact line and in cooperation with the Syrian government. In this regard, it may be helpful to advance discussion on the details of this approach. The difficulty is that neither humanitarian convoys nor the military of Syria, Russia, Turkey or the United States will be protected from provocations by terrorists. Although Turkey has close relations in Idlib with a number of anti-government Syrian groups affiliated with the so-called “Syrian National Army”, these are weak compared with HTS. This fact has compelled Turkey to not actively oppose HTS. Recently, HTS has re-energised itself and is putting pressure on a number of smaller Idlib groups. The latest big news is connected with a native of the former Soviet Union. According to the Directorate-4 Telegram channel, “a veteran of the jihad, the leader of the Jund Ash-Sham group, Murad Margoshvili, better known as Muslim Ash-Shishani,” received an ultimatum to lay down arms and leave Idlib or join HTS. Such proposals have already been received by a number of other leaders of terrorist groups who, in one way or another, submitted to HTS.

The situation in Syria has not been resolved and is not yet close to a geopolitical equilibrium. HTS policy speaks of the further consolidation of power in Idlib in the hands of Abu Muhammad al-Julani. All this may lead to the need for a joint Russian-Turkish-Syrian (Damascus) solution to the issue via various methods. It is possible that Damascus will decide, at least, on a limited military solution in order to establish control over the logistically important M4 highway leading from Aleppo to Latakia, which would restore economic ties between the regions of the country. As for humanitarian aid, in the new (as they say in the West, rules-based) world order and given international humanitarian law in these conditions, apparently, it may turn out to be not a law, but a rule. With all the ensuing circumstances.

From our partner RIAC

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International Law

Upholding Dharma by Mob lynching?

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Label any Muslim a cow smuggler, accuse him of carrying beef and then lynch in the name of protecting religion. These premeditated barbaric acts seem to have become the order of the day. According to “Hate Crime Watch”, around 90% of religious hate crimes have occurred after the change of Central government in India in 2014. Although Muslims are victims in 60% of incidents, people from all religious faiths have suffered hate crimes.

India’s constitution promises its citizens justice, liberty and equality, but the shattering of social life through mob violence triggers an inescapable sense of powerlessness among its citizens. After the 2015 gruesome Dadri lynching, Mohammad Azam was lynched in July 2018 by a mob in Karnataka after a series of WhatsApp messages had warned locals that child kidnappers were on the loose. The mob assumed that Azam, who worked for Google, and his friends were co-conspirators and lynched him. In 2019, Tabrej Ansari became the first victim of the gruesome hate crime in the second term of the current regime led by proponents of Hindutva. He was lynched by a mob that forced him to chant Hindu religious slogans. In June this year, three people were lynched on suspicion of cattle smuggling in Tripura.

It needs to be recalled that lynching was used to terrorize black community for generations in the United States; blacks were lynched on dubious and false criminal accusations but this was put to an end through NAACP (National Association for the Advancement of Coloured People). In a similar fashion today, there is a growing perception that mob lynching happens with disturbing regularity in India to terrorize not only minorities but also dissenters in the name of religion and culture.

Violence against those who dissent is sought to be rationalized as nationalistic. The killings of Mohammad Akhlaq, Govind Pansare, M M Kalburgi, Narendra Dabolkar and Gauri Lankesh were masterminded by religious bigots masquerading as nationalists. In fact, the recent murder of George Floyd at the hand of a racially bigoted policeman in the United States, and custodial torture and death of a father-son duo in Tamil Nadu are hate crimes which are blots on the conscience of democratic societies.

Contemporary India has witnessed a surge in right-wing Hindu extremism, and crimes committed in the name of Love Jihad, beef eating, child kidnapping, cow slaughter and anti-Muslim fake news are aimed at normalizing this disturbing phenomenon. This right-wing propaganda usually spreads like a wildfire on the internet, particularly on the so-called Whatsapp University where it has become quite common to see pictures and videos of dead cows lying in a puddle of blood. It has been noticed that such videos and images on social media platforms are always of questionable veracity whose primary purpose is to incite fear, anger and violence. Very often, the text accompanying the videos appeals that everyone should spread it as much as possible in order for it to reach at the highest political executives. When this damaging and dangerous content is continuously circulated, the resulting fear in the minds of majority community gets converted into hatred toward the minority community.

These are nothing but politically motivated polarizing tactics and diatribes which only feed off pre-existing demeaning stereotypes of minorities. Technology has become an enabler of violence for various political and cultural reasons. There are many parties and stakeholders involved in these hate crimes but victims are only innocent people and invariably from vulnerable socio-economic groups. But the most shameful is the attitude of India’s politicians and police officials who justify these crimes, garland the lynchers, deny it ever happened or shrug off their responsibility by preferring to watch as mute spectators. Even delayed or muted condemnation of communal violence, by those in positions of power, only signal tolerance of such activity. Unfortunately, both the mob violence and the official response to it are symbolic of the Indian state’s rising incompetence in countering religious intolerance.

In recent years, the alarming idea that the ‘nation’ belongs only to the majoritarian community has made global strides as many countries like Poland, Hungary, Brazil and Turkey have come under its sway. Even many long-established democracies, including the United States, are feeling the pressure of this authoritarian tendency. The emergence of Hindu nationalist ideology in India, which is seen as replacing Indian civic nationalism, promotes the notion of a unique national culture grounded in Hindu cultural supremacy. The proponents of Hindu right-wing extremism are trying to radicalize their children and youth with ultra-conservative and fictional thoughts which often re-assert historical prejudices and ungrounded hatred toward Muslims.  

One may be wrong, but cynical indifference shown by the middle class citizens tends to breed servitude and perpetuate complacency. When the victim of mob violence dies a death, shockingly there is no remorse from the crowd. Only the victim’s family remembers the event even as the societal silence is spine chilling. Actually, one should not ignore the performance aspect to mob lynching. Those indulging in mob lynching or public beatings ensure that their acts are recorded and then the potential circulation of such videos is targeted to send a strong message of the majoritarian men terrorizing minority men into humiliation and subjugation.

The dominant mainstream assumptions that cattle slaughter and beef trade directly concerns only Muslims, Dalits, Adivasis and Christians is also far from reality. Unfortunately, framing of the debates around bovine trade along communal lines has been sustained by provincial media which acts as an echo chamber to propagate Islamophobia. It has also been observed that the messages of hate get intensified after any terror attack, and instigate people to act against specific communities, primarily Muslims.

In July 2018, a landmark judgment given by the Supreme Court had condemned the incidents of mob lynching and cow vigilantism as ‘horrendous act of mobocracy’, asking the government to enact strict law to counter them. Nevertheless, in spite of comprehensive guidelines and anti-lynching laws in some states such as Rajasthan, Manipur and West Bengal, the mob violence continues unabated. In many states where the right-wings groups feel emboldened such as Assam, Uttar Pradesh and Karnataka, there is widespread feeling that the enactment of stringent cattle preservation legislation has further exacerbated such crimes. Those who think that the lynch squad is a thing of the past are wrong.

Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) do not have specific provision dealing with the mob lynching because this was never seen as a crime in India. It is similar to terrorism for which we have the most stringent laws. But mob lynching causes more than just a death; it kills the spirit and substance of democracy. We are told that Hindus and Muslims share the same DNA in India. How can the cold-blooded lynching of one’s brethren make one a hero rather than a murderer? How can a policeman’s lynching and alleged cattle lifter’s lynching possess different form of bestiality? In fact, the time has come to brand mob lynching as ‘domestic terrorism’ and a serious threat to India’s internal security.

Does glory to Lord Rama be restored through unruly mob justice? Does the path to righteousness come through killing innocent people in the name of Cow? Does circulation of derogatory and hateful projection of Muslims bring glory to Hindus? Are those calling publicly for violence against Muslims and Christians are real friends of the Indian State and government? Is not hate crime the prelude to genocide? These uncomfortable questions shake the core of India’s multi-religious and pluralist democracy. India’s timeless civilization has unflinchingly celebrated the foundational principles of humanity such as non-violence, tolerance, peaceful-coexistence and ‘Vasudhaiva Kutumbakam’ which is one of the most important moral values engraved in the heart of every Indian. These eternal principles come under violent assault whenever a mob kills an innocent Indian.

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International Criminal Court and thousands of ignored complaints

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©ICC-CPI

The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.

Correspondent of the French newspaper L’Humanité Vadim Kamenka, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”

Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.

The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.

The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).

Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.

The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.

Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.

The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.

The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”

Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”

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