Just over a week ago, the American Bar Association withdrew the two statements that it had previously made in relation to the Israel-Hamas war.
Over 900 lawyers had signed a draft letter published on LinkedIn complaining about the ABA’s previous two statements. The ABA withdrew its statements before the draft letter was sent.
The signatories had complained that the ABA had misinterpreted international law. For instance, on 9 October the ABA called on both parties to cease hostilities but, says an earlier letter from the same drafters, ‘Calling upon Israel “to stop hostilities” on October 9 was tantamount to depriving Israel of its rights under international law’ (the right to self-defence).
Before the ABA withdrew its statements, the US-based National Association of Muslim Lawyers urged the ABA not to change its mind, expressing deep concern that lawyers who support the Israeli government’s ongoing offensive in Gaza were pressuring the ABA to replace its statements with one that ‘would apparently justify the killing of civilians’.
All day and every day, commentators wield aspects of international law against the parties to the war. Everybody seems to be guilty of practically everything. This article makes no comment on the rights and wrongs of the war or the history leading to it, nor on what breaches of international law may have taken place, nor does it argue for moral equivalence. I merely wonder what is the consequence of the daily citation of different aspects of international law without apparent impact on the events unfolding.
I will use the statements of the chief prosecutor to the International Criminal Court (ICC), Karim Khan as an example. He gave a statement in Cairo on 30 October, which was turned into a newspaper article on 10 November. In these two documents, he lays down what he believes is within and outside international law in relation to the recent hostilities.
According to him, nearly everything major that has happened since hostilities began has been in potential breach of some aspect of international law. If true, is the reputation of the law itself – not specifically international law, but the generality of law - brought into disrepute, since apparently no-one can do anything about it being ignored or broken, at any rate not until a potential trial long afterwards?
According to the chief prosecutor in relation to Hamas, the 7 October attacks by Hamas on Israel ‘represent some of the most serious violations of international humanitarian law. Hostage-taking represents a grave breach of the Geneva conventions. It is a war crime under the Rome statute of the international criminal court.’ As for the firing of rockets from Gaza against Israel, ‘the indiscriminate firing of rockets from Gaza into Israel may represent breaches of international humanitarian law subject to the jurisdiction of the ICC.’
Regarding Israel, he says likewise that ‘any attack that harms innocent civilians or protected objects is conducted in accordance with the laws and customs of armed conflict. They will need to demonstrate the proper application of the principles of distinction, precaution and proportionality … in relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost because they are being used for military purposes … if there is a doubt that a civilian object has lost its protective status, the attacker must assume that it is protected … the burden of demonstrating that this protective status is lost rests with those who fire the gun, the missile, or the rocket in question.’
As for relief for Gaza residents, by whomever it is being impeded, ‘Impeding relief supplies as provided by the Geneva conventions may constitute a war crime … there must be discernible efforts by Israel, without further delay, to allow civilians to receive basic food, water, medicine, anaesthetics, morphine … when such aid reaches Gaza, it is imperative that the assistance gets to the civilian population, and is not misused or diverted away from them’, the latter being addressed to Hamas.
As for the jurisdiction of the ICC, after a long wrangle, the ICC accepted the State of Palestine as a signatory in 2015, and the chief prosecutor opened an investigation into potential crimes in Palestine in 2021, before the war began. He says that the ICC has ‘ongoing jurisdiction in relation to any alleged crimes committed on the territory of the State of Palestine by any party. This includes jurisdiction over current events in Gaza and in the West Bank.’
Israel is not a state party to the ICC, but the chief prosecutor has offered to work with Israel to ensure that justice is delivered for the events of 7 October.
As I said, I make no comment about the application of the law, nor indeed about the rights and wrong of the war. But I do ask whether the reputation of the law is damaged when it appears to have no effect on parties engaged in actions which potentially breach the law every day. War crime trials usually occur long after the events themselves, without impact on the actions at the time, rather like a public enquiry with sanctions attached.
If domestic law were involved, action would usually be taken immediately on breach, in either the civil or criminal field.
Do the difficulties of enforcing international law, and the importance to victims of ending impunity for war-crimes, mean that we should ignore the ongoing damage to the reputation for effectiveness of the law itself?