Everyone’s talking points have in bold type – ‘Israel has the right to defend itself’. This simplistic American militarist jargon is treated as if there was an untrammelled right. International law hasn’t emerged to facilitate war, but to constrain it.
The rich body of international law is the product of several centuries of reflection and development. At its core is blunting the high emotions that inevitably accompany war through rational and humane regulation. Forgetting the foundations of international law in justice and humanity only brings more calamity.
Among political leaders in Australia, North America and Europe the tendency is to disaggregate and abstract the events in Gaza and to deal with them ahistorically. As though international law considerations only arose on and following October 7. The unjustifiable outrages committed by Hamas on October 7 are gravely at odds with international law concerning the conduct of hostilities. But the jurisprudence is far more complex and the obligations and rights of both parties to the conflict far more nuanced than politicians and the media assert.
The overarching legal framework in Gaza and the West Bank, and the Occupied Palestinian Territories really cannot be separated, is the international law with respect to belligerent occupation. Although Israel denies it is the occupying power, all authoritative opinion recognises it as one. The law of occupation is to be found in the Hague Regulations, in the Fourth Geneva Convention and in Additional Protocol 1, as well as in the customary laws of war. It applied leading up to October 7 and has since.
The 1907 Hague Regulations were held by the International Military Tribunal at Nuremberg to be declaratory customary international law with respect to belligerent occupation. The International Court of Justice (ICJ) has concluded that an occupying power remains bound by those human rights treaties which it has ratified and in all areas under its jurisdiction – including outside its own territory. The UN states that an occupying power continues to bear responsibility for implementing its human rights treaty obligations in areas it is occupying while it continues to exercise jurisdiction in those territories.
The occupying power is responsible for maintaining or restoring public order. It is responsible for public health during the occupation. Furthermore, the occupying power must ensure that food and medical supplies are available to the population in the occupied territory to the fullest extent of its means.
The occupying power is prohibited from collective or individual forcible transfers of population from and within the occupied territory; and from transferring its own civilian population into the occupied territory, regardless of whether forcible or voluntary.
Collective punishment by the occupying power is prohibited as is the taking of hostages. Reprisals against protected persons or their property are prohibited, and the destruction or seizure of enemy property is prohibited.
The assault on Gaza clearly comes after a sustained period of deliberate contravention of the law of occupation in both Gaza and the West Bank. The West Bank settlements are illegal and undeniably provocative as has been the blockade of Gaza. The history of the occupation determines the nature of the rights of the occupied population to resist.
The Martens clause becomes important here. This statement appeared in the preamble to the Hague Conventions and has since been relied upon in the Nuremberg jurisprudence, and has been addressed by the International Court of Justice. It has been reiterated in many treaties that regulate warfare, like the Geneva Conventions and Additional Protocols. The clause was cited in the Tehran Conference on Human Rights of 1968, and appears in the national military manuals of the United States, the United Kingdom, and Germany.
This important statement emphasises that the laws of war and the body of humanitarian law are not comprehensive. And they are not there to facilitate conflict but constrain, and preferably minimise, war’s impact and occurrence.
Recognising the futility of trying to address every situation that can arise in war, and that the powerful military states can control the content of the laws of armed conflict, the Martens clause summarised the sources of the laws as being “the usages established between civilised nations, …the laws of humanity and the requirements of the public conscience.” Thus the Martens Clause provides authority for looking beyond treaty law and custom to consider principles of humanity and the dictates of “the public conscience”.
Some experts regard votes in the UN General Assembly (UNGA) as evidence of the “the public conscience”. UNGA Resolution 3314 (1974) affirmed the right of peoples suffering under colonial and racist regimes or other forms of alien domination to struggle to end that situation. UNGA Resolution 37/43 (1982) specifically reaffirmed the “inalienable right” of the Palestinian people to pursue liberation from colonial and foreign domination and foreign occupation by all available means, “including armed struggle.”
These and other similar UNGA resolutions might be said to reflect the customary international legal opinion among the majority of the world’s sovereign states. Both antagonists in the current military conflict in the Palestinian territories are flagrantly in breach of the Martens clause.
It was the horror of war not its utility that has driven states to come together on rules to keep armed conflict within some bounds and to outlaw extreme and inhumane acts. If warfare couldn’t be eradicated then at least it might be possible to limit the unnecessary civilian deaths and injuries and the wanton destruction of infrastructure.
Israel’s right to defend itself is not untrammelled and political leaders should not be implying that it is. Hamas is a threat to Israel and actions limited to the removal or nullification of that threat are legitimate. While the Palestinians have a clear right to resist the occupation, Hamas’ actions took it outside the laws as well.
The overwhelming support for the October 28 UNGA resolution calling for an immediate ceasefire in Gaza shows “the public conscience” has undoubtedly judged the current campaign. Political leadership should be drawing heavily on international law to halt the carnage in Gaza and the colonisation of the West Bank.
Failure to do so undermines the authority of international law.
Copyright Mike Scrafton. This article may be reproduced under a Creative Commons CC-BY-NC-ND 4.0 licence for non-commercial purposes, and providing that work is not altered, only redistributed, and the original author is credited. Please see the Cross-post and re-use policy for more information.
Also published in John Menadue’s Pearls and Irritations.