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 The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws.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.

Military residents and a reinterpreted principle of 'distinction'

Another series of armed exchanges are taking place in the Gaza strip and we are once against appalled by the non-application and utter (non-gymnastic) defiance of the most fundamental principles of the law of war(forgetting only for a second about its misapplications and misinterpretations).

"Many areas of international law are vague. They can be interpreted in different ways. The situation in Gaza, for example, has no parallel anywhere else in the world. It's all open. So there are interpreters who want to interpret the law in such a way as to limit us as much as possible, and there are interpreters who are more convenient for us," says Israeli Justice Minister Friedmann, when asked about the perceived legality of attacking military targets in densely populated residential areas.

It seems not only that the Israeli government has yet to discern the actual purpose of its offensive or the moralist questions that surrounds the bad, good and evil (I turn you to a remarkably 'interesting' piece by David Horovitz, the Jerusalem Post's editor-in-chief who holds that the misconceptions of the international media are "an aberration that highlights how poorly 'our' complex conflict is understood") (emphasis added), but neither has it had enough time to position itself in relation to the relevant interpretational discourses surrounding the relevant jus in bello provisions.

The set of rules governing the attack strategies of a militarised territorial entity (outlined in Protocol I Additional to the Geneva Conventions (AP I)) against another are a self-applicable and clear framework. Suggesting a degree of complexity, in order to brush matters aside, the applicability (or rather malleability) of the existing law to wars against terrorist organizations is put at doubt.

The matter should be very simple, and action should commence with the adherence to and non-violation of the most fundamental of all principles - civilian immunity and the principle of distinction (the 'basic rule' in Article 48, AP I, to distinguish between civilians and combatants and to target only the latter). These questions remind us of the ones asked before, during and after the American aerial attacks on railways and television towers in Kosovo (granted these were cases of Aerial bombardments and the standards, it has been conceded, are different). These elaborate debates brought us to (un)clear conclusion that each case, and each target, needs to be considered on its own merits - namely, the end achieved by the action must outweigh the damage caused by it. This balancing of facts is to be done in accordance with the second most fundamental tenet of the laws of war, the basic principle of proportionality (Art 51(5)(b) AP I). The problematic is inherent to the definition of a "military target", the question of precision, the precautionary measures (Art 57, AP I) undertaken before and during the attack, etc.

We are faced by a recurring dilemma of IHL, exemplified similarly in the morbid 'one-ton bomb' incident of the house of Saleh Shehadeh in Gaza, which killed 14 civilians, including 8 children. In other words, considering the problematic of evidencing each and every attack in the current conflict frenzy and the hopeless reliance on post-conflictual accountability proceedings (a good example taken from Winograd, see earlier post), it is arguable that these targeting considerations need to be institutionalised as a procedural aspect of the earlier stages of the military decision-making processes. This will unquestionably be the only effective means for assuring that these provisions are at least considered, if not properly implemented. At the same time, this appears absolutely unfathomable in practice.

I suggest (as many international NGOs have done before) that the question to be asked should be much cruder. If we (i.e. laymen), and specifically the media, is able to distinguish (when numbering the casualties) between the civilian and the armed 'combatant', why and how is the legal norm so 'very' dynamically instrumentalised (or altogether ignored)to justify what are, prima facie, clear violations of the most basic and fundamental tenet of international humanitarian law, the principle of distinction?

Enforceability of civil and political rights and the recognition of a legislative void

The Russian election on March 2, 2008 was an election "in name only", said the independent. "Had it happened in Africa, the capitals of the West would have been full of condemnation. As it concerns a country with a considerable voice in the world's institutions and even more real power in energy supplies, the realities behind Sunday's vote are likely to pass essentially unchallenged". (see Independent.co.uk)

The Russian Federation is a party to the Covenant and the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (ratified the protocol on 1 Oct 1991). Article 25(b) of the Covenant holds as follows: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;..."

General Comment No. 25 elaborates on the terminology of para. b by mentioning the pivotal implementation of this right through the conduction of "genuine periodic elections", "fairly and freely". The Comment also mentions the establishment of an "independent electoral authority...to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant". State reports to the special Committee are required to "indicate what measures they have adopted to guarantee genuine, free and periodic elections and how their electoral system or systems guarantee and give effect to the free expression of the will of the electors".

The politicisation of the international legal order is not a new phenomenon and neither is it a marginal, or marginalised, discourse. Its central role in the academic world is far from being lamentable. Albeit eminent, it is, however, self-limiting and self-limitative in the sense that it refuses to transcend its own boundaries and undertake an activist parlance - that which assumes responsibility and acts upon its normative assertions. Be it in terms and languages that it has long condoned, destruction and concurrent reconstruction, or rather development, is long overdue.

I suggest that to observe the human rights institution from a positivist stance - appreciating the existence of a certain vigor in the tools that it presents, recognising and grasping onto the instances of triumph that it has achieved - is to recognize the legislative loopholes and lacunae with which it is ridden.

This is only one more strike against the Russian people's enjoyment of fundamental civil and political rights; following a series of restrictive legislative measures on the registration and formation of noncommercial organizations, and a general recent past that resonates a typology of diluted fascist tendencies (i.e. restriction of mass media, nationalisations, corruption in all three branches and a growing number of antagonistic gestures towards the West). Instead of subjecting the Russian State to the kind of accountability measures that the Economic and Social Committee (through or together with other UN bodies) should be imposing, we are faced with the realization that the provisions/tools that we require are not readily available.

In order to hope for a constructive response from the ICCPR Committee at the UNHCHR, the Russian State will have to submit a report under the Covenant's mechanisms. Alternatively, or concurrently, an individual complaint could come under the mechanisms outlined in the Optional Protocol. The latter seems a more feasible option, albeit, it is envisageable, it would be heavily obstructed by the relevant national authorities. The individual complaint mechanism remains the only kernel of hope. It is the only means to challenge and enforce the irremediable rights of a rigged and illegal political process.

A naively posed, simplistic question remains untreated: is there not something inherently toothless and powerless in the current compilation of enforceability mechanisms available to the most fundamental international legal principles? This is one other reflection of the current defenseless state of international law (without actively attending to the forceful calling of the normative discourses this particular phenomenon attracts). It is also a crude reminder of the precarious nature of the surfaces on which its current legal instruments, such as the ICCPR, hopelessly stand.

With an intense desire to transcend this morose static status, a determinative change in approach is required that would not fail to instantly point out the violations procured by state parties (i.e. Russia's blatant disregard for the rights of the people or the carelessness in which it had, with full knowledge and considerable nonchalance, conducted the recent elective process).

An immediate enquiry should be commenced, an investigatory process and independent group of experts delegated and an evaluative communication delivered by the ICCPR Committee. Finally, and most critically, a number of elementary mandatory stipulations need to be ordered for the purpose of hastening the corrective procedures and remedying those whose rights had failed to be protected by forcefully giving them effect (viz. even if this means that a re-election is the only viable means for achieving this objective).

A fruitless Winograd and the obligation to effectively investigate, prosecute, and punish

Yaron Ezrahi, a political scientist at Hebrew University, said he believed that Mr. Olmert’s days were numbered, because Israeli leaders “rise and fall” on their war leadership. “There has never been a case in Israeli history that an authoritative commission said something so blunt about a war that took the lives of soldiers and the lives of civilians, that blamed so bluntly the political decision makers for the failure of the war,” he said (see NYtimes.com). The report harshly criticizes the practices of government and the performance of the military, but pays no more than lip service to a core pillar of the laws of war - the obligation to effectively investigate, prosecute, and punish in the aftermath of a conflict.

The government has the right to establish such commissions that are necessary to investigate matters of public concern, namely those regarding military activities. The problem that the Commission incurred in this process was a result of the mixing between the question of the Report itself (content and form) and the parallel, but ostracized, question of what is to come as a result of these fact-finding exercises, who and how will be prosecuted and punished.

The question that is asked, in the shadow of this post-Winograd anguish, is what are independent investigatory commissions good for? and, to what extent are post-conflict investigatory obligations (namely, Article 132, Geneva Convention III and Article 149, Geneva Convention IV) effective, if at all relevant to the twenty-first century war climate.

The manner in which this particular enquiry was conducted perverses the very foundations of these simple but imperative legal norms. The law outlines as follows: An enquiry shall be carried out as soon as possible by a Commission instituted for each particular case, and comprising three neutral members selected from a list of qualified persons drawn up by the High Contracting Parties in time of peace, each Party nominating four such persons. The plaintiff and defendant States shall each appoint one member of the Commission. The third member shall be designated by the other two, and should they disagree, by the President of the International Court of Justice or, should the latter be a national of a belligerent State, by the President of the International Committee of the Red Cross (ICRC consultations on Art 132). The Parties to the conflict undertake to punish those responsible (para 3, Art 132).

Although it was not vested with the powers of an official state commission of investigation, it had the power to subpoena witnesses and recommend the prosecution of officials it found to have been responsible for wilful or negligent criminal conduct. Essentially, the whole procedure adopted an approach to which we have become slightly too accustomed - it brushed aside available evidence of serious violations of international law, claiming that interpretations of international humanitarian law are controversial, that it did not have the capacity to deal with the volume of data. Finally, it did not propose any concrete measures for the prosecution of the responsible state organs (Amnesty International reports).

Excerpts from a press release summarizing the highlights of the 617 page report convey the following helpless reverberations:

"Let us emphasize: when we imposed responsibility on a system, an echelon or a unit, we did not imply that the responsibility was only or mainly of those who headed it at the time of the war. Often, such responsibility stemmed from a variety of factors outside the control of those at the head. In addition, a significant part of the responsibility for the failures and flaws we have found lies with those who had been in charge of preparedness and readiness in the years before the war."

"Overall, we regard the 2nd Lebanon war as a serious missed opportunity. Israel initiated a long war, which ended without its clear military victory. A semi-military organization of a few thousand men resisted, for a few weeks, the strongest army in the Middle East, which enjoyed full air superiority and size and technology advantages. The barrage of rockets aimed at Israel's civilian population lasted throughout the war, and the IDF did not provide an effective response to it...This offensive did not result in military gains and was not completed."

"All in all, the IDF failed, especially because of the conduct of the high command and the ground forces, to provide an effective military response to the challenge posed to it by the war in Lebanon, and thus failed to provide the political echelon with a military achievement that could have served as the basis for political and diplomatic action...[Seeking peace or managing the conflict must come from a position of social, political and military strength, and through the ability and willingness to fight for the state, its values and the security of its population even in the absence of peace.”

Most damningly:

"Our recommendations contain suggestions for systemic and deep changes in the modalities of thinking and acting of the political and military echelons and their interface, in both routine and emergency, including war. These are deep and critical processes. Their significance should not be obscured by current affairs, local successes or initial repairs. A persistent and prolonged effort, on many levels, will be needed in order to bring about the essential improvements in the ways of thinking and acting of the political-military systems."

Is this it - done and dusted?

IHL - Toothless and delegalized in Jerusalem

Bush is visiting Olmert and Abbas in Jerusalem and Ramallah these days to engage in a series of toothless 'tittle tattle' on the jaded, politicized legal questions of Jerusalem, refugees and settlements that sit at the top of the agenda for the resolution of conflict and detangling of events in the region.

Mr. Bush declared this a “historic moment, a historic opportunity” to overcome the deep skepticism here and elsewhere that the peace efforts begun in Annapolis, Md., in November would succeed. (see NYTimes.com)

The senior official added that Israel was determined to continue building in Jerusalem, and that there was no change in the position on the issue despite the rare criticism by America's top diplomat. (see JPost.com)

If east-Jerusalem is not recognized as "occupied territory" under the Fourth Geneva Convention (regardless of the length of the occupation), if the right to return in international law is not afforded to the some 2 million Palestinian refugees, and if the rules of jus in bello pertaining to the conduct of the occupying power are not enforced, there is absolutely no place for soft, leaky diplomatic chatter. Or is there?

The aged state of international humanitarian law (IHL) has been a topic for debate in recent years with the emerging face of the twenty-first-century armed conflict (i.e. state against non-state actor). It's body being not only unsuitable for the traditional IHL outfit, but has further ripped this traditional outfit apart exposing its inherent deficiencies in operability.

In creating and maintaining the 'big prison', i.e. the Gaza Strip, for the past two years the Israeli authorities have been supported by American officials that had chosen to endorse 'national security' and 'the fight against terrorism' to negate hard rights, obligations and soft politico-legal agreements that today form the very creature of IHL and international human rights law.

Before the law is applied by both sides, even in the very denuded state in which it is found today, delegalised politics is a means for reinforcing the present state of paralysis and rejecting the validity of the fundamental aspirations of the international community for its peaceful coexistence and collective struggle against the horrors with which it is presently faced.

International human wrongs in Kenya

The death toll is exceeding the 300s as the Kenyan people continue to fight against what was an openly rigged election process in dire hope to grab hold of what is left of their fundamental civil and political rights. The world is watching in awe.

Is this not an appropriate time to ask ourselves, the international community of state, non-state actors and individuals, a number of critical questions: where have the politico-legal norms for a fair and free election process originated (if not Western societies)? Why have the monitoring teams representing the European Union, and a considerable number of IGOs and NGOs disappeared in the midst of all this chaos? and Who is going to be the catalyst to bring about, if not at the very least support, the securing of peace in a nation found today in profound turmoil and despair.

The international system of governance has once again reaffirmed its state of utter impotence. Not even the UN Security Council reacts to the atrocities, let alone the UNHCHR and its organs. Our best bet, we seem to believe, is to leave them be altogether. Refraining from arousing even regional conversations amongst the African nations we choose to remain in our barracks, numbed by the lessons we think we should have learned from more recent humanitarian interventions. Sadly, still unable to realize that inaction and passivity is sure to secure neither us, nor humanity, a brighter, more stable and promising future.

Kenyans were praised for their utter dedication to the principles of democracy and the political process as they stood in line to the voting polls for hours. An expressive number of organizations and governmental delegations (less Pan-Africanist than expected) were on site to support the process and assure the purity of the demos (or demon in disguise) at work. A case that reminds us more recently of Nigeria and more boldly (remarking the inappropriate nature of such impossible-to-oversee puppet shows) of Iraq.

This is a very sorrowful implication of the unravelling nature of the operation of identity building that Western society has chosen to achieve through the institution of human rights, amongst others. Whose rights and where do they originate? About these we have blatantly forgotten. After all, Kenya today is a mirror of a people, reflecting the face of humanity, that 'want' to express the universal dignity bestowed upon them as human beings on account of their own humanity.

What are we really securing and for whom?

The Centre's most recent symposium on "Securing humanity: perspectives from international law" was a true success both from an academic legal and a humanistic perspective. The discussions reverberated in the audience's emotional impulses and successfully preserved a healthy tension and density in the air as an additional speaker commenced with their discourse.

Most interestingly, however, was the capturing discussion that was developed surrounding the question of "us" and "them", another way for dualizing the system and basing it on the preconceived premise that 'divisions' are innate and inherent and colonialism and dominion is inseperable from the ways of mankind. Instead of allowing us to conceptualize our ends and develop upon the means (lamenting to enter the ontological discussion that lurks into and within this discourse), it dooms us to dystopia (as the esteemed scholar amongst us mentioned) and is a further self-limiting, self-justificatory, exercise.

After a series of self-sufficient, but despite this, interdependent dialogues, the second panel presented two speakers who were able to ground the discussion in the pragmatic case studies of the operability of the law on the international platform. International Criminal law and International Human Rights applicable in the context of asylum and immigration law on the International, regional, but particularly, national arenas, have shown (undertaking a very trivial analysis) that international law has tripped over itself a number of times and continues to do so.

The nature of the doctrine of Universal Jurisdiction has been curtailed by the sovereignty of states, and the fully justified right to invoke State Responsibility under the secondary rules of international law has analogously been negated by the flaccid rules on Individual responsibility that, as a result of the non-concurrence of the two, allow for the preservation of state impunity in the most appalling cases.

On the other hand, UK Immigration law has become a true cesspool breeding creatively mechanisms to allow for the furtherance of human rights violations. We mentioned the deprivation of asylum seekers from social services and the complete and utter disregard for the principle of the Universality of human rights and the application of fundamental human rights to non-nationals (leaving only a very limited and restrictive margin of appreciation to the state). But where does "security" come in?

Have we not by choosing this course of conduct asserted that we are choosing "our" security over theirs (even though it may only be a question of racism and sterility of the more conservative, but nonetheless dominant, parts of society)? We could even see "security" as a means for protecting our societies from those that try to bring them down, in the very direct sense of the word, advocating actively for border security policies and the drastic cut-down in the number of migrants allowed in, by all means possible. This would bring us even further into the discussion of security and human rights and the questioning of whose human rights would we prioritize when push comes to shove. The present author boldly and brutally asserts: "ours!" If it ever came down to a clash between Article 3 ECHR (prohibition of torture) rights to a potential terrorist (who is likely to be tortured and persecuted if removed to his country of origin) and Article 2 ECHR (right to life) rights to the London tube riders, we can all foresee the likely outcome.

So we had established, superficially, that international law does not, because more likely it cannot, accomodate "humanity". Why? This very naive question can only be answered with another: What is "humanity"? What is the "accomodation" (to what extent and for whom)? This brings us back to the basic premise that it is almost always our "humanity" over theirs or vice versa. The often-neglected truth is that the "good life" (in all of its ingredients) is not an ever expanding cake; it is conclusively finite and its parameters are clearly conceivable.

We had awakened our chronic sense of disillusionment with the international legal order, and then confirmed it with a sense of striking but familiar data, and still, some of us continue to comfortably resign to sinking back into the self-justificatory exercise that we recognized, conceptualised and negated to begin with (a good example: what are we doing with the UN if we know what we are doing and we know what it is like?)

We may want to leave ourselves with a set of basic existential contemplations (whether individual or communitarian): Has our innocence been lost to such a profound degree that there is no way back out of the abyss? Has individualism (in the white, western sense) negated the very pure view of the role of the law in society? Has the international legal order become a prophesy that has brain-washed some, intensely convinced a large group of others, whilst left the rest in a state of unfathomable irritation?