Pragmatism distanced from principle or disengaged politicking? An IHL enforceability conference and a judgement of the Israeli Supreme Court

On June 1, 2008 I attended an international conference under the title ‘Complimenting IHL: Exploring the need for additional norms to govern contemporary conflict situations’ organised by the Minerva Center for Human Rights of the Hebrew University of Jerusalem and the ICRC. The question at stake was whether the problems created by an archaic legislative framework of international humanitarian law called for further legislation (for the purpose of clarification) and if this indeed was the only means to achieve these objectives?

In response to the opening keynote address of the conference delivered on 1 June, 2008 by the honourable Judge Theodor Meron, Prof. Françoise Hampson spoke, amongst other things, about the role of the law in the regulation of State activities of this kind. She noted many a time that the imminent problem is not the law itself, and its conceptualisation of certain notions and rules, but rather its enforceability and thereby implementation. The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws. Why is it then that we usually resort to new legislation for solutions? Because it is easier.

Such processes that seek new legislation imply the unavoidable - they make the current laws seem futile and meaningless and belittle their importance as a whole - creating a very dangerous situation at present when new legislation has yet to be designed or even conceptualised. So, if this is our present approach to the laws of war, why should new laws be treated any differently?

Subsequent remarks implied that what needs to happen is the establishment of a truth commission or analogous impartial and independent investigatory body that would undertake to investigate the situation from a neutral position and into considerable depth, compensate the victims, and punish the culprits. The multiplying and fragmenting international judicial system of courts and tribunals is nonetheless dependent on the will of states and is subject to their availability and acceptance of not only jurisdiction but procedural terms. Such an ‘opt in’ prerequisite considerably limits the scope of their jurisdiction. There is, however, still hope for a similar criminal tribunal to those established in Rwanda (ICTR) and ex-Yugoslavia (ICTY), or the hybrid courts of Sierra Leone and Cambodia will be established in the Palestine/Yisrael region.

This equally reminds me of what Prof. Marco Sassòli has often remarked on the situation at hand (whose words I vividly recall from his lectures at the University of Geneva). In these circumstances we should be reminded that if the relevant parties (primarily the State parties involved who continue to flawedly rely on reciprocity as a grounds for legality) would comply with the legal obligations that bind them, it would make for a more solid grounds for all other construction processes, political and otherwise.

To evince the judicial practice as well as the worries of human rights practitioners in the region, the judgement of the Israeli Supreme Court in the case of HCJ 9132/07 Jaber Albasioni Ahmed and others v The Government of Israel that was handed down on 30 January 2008 is a good example to use. This was a case where 12 different petitioners, amongst them 9 organisations (one of which is the organisation I presently work with, Hamoked – Center for the defence of the individual), lodged a fundamental (as opposed to individual) petition against the policy decision of the Israeli authorities to limit the supply of gas and electricity to the Gaza strip and intensify the already traumatic humanitarian crisis.

This petition was decisively rejected (the following excerpts are a free translation from the decision which was not, and will probably never be, translated into English). As President of the HCJ Judge Beinish notes in the opening paragraph of the judgement, there is no obligation on the State of Israel to transfer an unlimited amount of electricity and gas to the Gaza Strip "in circumstances where some of these resources continue to sustain the terror organisations for the purpose of targeting Israeli civilians."

She continues, “Israel no longer has effective control of the happenings in the territory of the Gaza strip...[and] in these circumstances, there is no general obligation on the State of Israel to care for the well-being of the population of the Strip and to maintain the public order in the region under the framework of the law of occupation in international humanitarian law.” (para. 2)

The HCJ was therefore convinced that “the decrease in supply in [three out of the tens of electricity lines that supply electricity to the Gaza Strip] does not violate the humanitarian obligations that bind the State of Israel in the context of the 'armed conflict' that is ongoing between it and the Hamas group that is controlling the Gaza Strip.” (para. 18)

These assertions are of a considerably paradoxical nature. The Court never recognised the 'humanitarian legal framework' (at least not its full range of instruments) and now it refers to it in retrospect when noting that it no longer applies (when it clearly does, as the IDF still has effective control over the Strip and the life of the local population).

It should be noted that this is only one of many amongst a collection of profane judgements that misinterpret and selectively reference the very fundamental international legal frameworks that have applicability in armed conflict situations and that the State of Israel has signed and ratified.

Complimenting this case, there was a parallel petition lodged demanding explanations on the continuous pumping of gas by Israel from the seabed nearby the Gaza Strip. Israel is pumping away whilst the population of the whole Strip is suffering from a severe shortage where bakeries are being shut down and cars are running on cooking oil. This particular petition is not recalled anywhere in the press and the reminence of this major gas field discovery can only be evinced by much older news pieces from the international press announcing the joint venture and the contracting of international companies.