The English legal philosopher John Austin infamously (well, infamously to international lawyers anyway) called international law ‘positive morality’. He did not mean this as a compliment. Rather, he was describing it simply as a set of moral ideals that have been ‘posited’. International law is not really law, in other words, but merely some nice sentiments.
The Arab-Israeli conflict did not exist in his day, but if it had it would have been the best exemplar of his argument. There are some nice ideas: international law. And then there is what actually happens. The two things are not strongly correlated.
With that said, we can at least try to be clear and consistent about what international law actually says, rather than simply weaponising it on behalf of our favoured side in this or that situation. It is perfectly legitimate in other words to take the stance that while international law does not matter in practice, it should matter, and therefore we should be serious about how it applies. What is not legitimate is taking the stance that international law is only relevant insofar as it makes somebody you don’t like look bad.
Having said all of that, let’s foray into the metaphorical and literal minefield that is international law and the current conflict in Gaza.
First things first: when talking about international law and warfare, one is talking about two separate bodies of rules which each concern a distinct question. There is the jus ad bellum or ‘law to war’, and there is the jus in bello or ‘law in war’. This is a fancy lawyerly way of saying that whether a war itself is lawful is a separate question from whether or not the conduct of hostilities is taking place lawfully. In modern terminology we must treat the legality of the decision to go to war (the law governing ‘the use of force’) as a distinct topic, and the legality of actions taking place during wartime (international humanitarian law, or the law of armed conflict) likewise.
To illustrate: whether the decision to go to war against Germany in 1939 was lawful is a question for the law governing the use of force. Whether the firebombing of Dresden was a war crime is a question for international humanitarian law (IHL).
It makes sense, then, to look at the current Gaza conflict first from the perspective of the use of force and then from the perspective of IHL.
Let’s start with the use of force. It is common sense to anybody who isn’t a student at Harvard or the Mayor of London that Israel is justified in using military means to defend itself and international law of course bears that out. In the post-WWII era it has been illegal to use force aggressively, meaning to grab land or similar, but Article 51 of the UN Charter recognises that self-defence is a lawful reason to use force, and alongside it there is a much older, binding customary rule that States are entitled to use their militaries to protect themselves and their citizens.
This got its modern iteration in something which international lawyers call ‘the Caroline test’. The facts behind this are themselves interesting, and worth briefly stating. In 1837 Canadian rebels in what we now call Ontario launched an insurrection against British rule. They were supported by some Americans in New York state, who used a ship, the Caroline, to ferry passengers and arms across the Niagara River. British soldiers, fighting the rebels, duly crossed the river into U.S. territory, killed an American citizen, captured the Caroline, set it on fire and sent it careering over the Niagara Falls. This naturally caused an uproar, and the American Secretary of State, Daniel Webster, and the British minister (which we would now call ambassador) to the U.S., Lord Ashburton, hashed out a diplomatic solution. Their correspondence inadvertently laid out a general principle which has been a staple of international legal textbooks ever since. This is that the use of force is justified in self-defence where the “necessity…[is] instant, overwhelming, leaving no choice of means, and no moment of deliberation” (‘deliberation’ here meaning negotiation). What is important about this is not that the two men were laying down a law, or thought themselves to be doing so, but rather that they were referring to what they clearly thought was a pre-existing and very old rule of international relations which was binding on them.
Was it necessary for Israel to use force against Hamas in the aftermath of October 7th, and does it remain so in the sense that the necessity is “instant, overwhelming, leaving no choice of means, and no moment of deliberation”? You would have a hard time arguing that it wasn’t, and doesn’t. Narrowly, self-defence extends to the protection of one’s nationals from harm, and Hamas has something like 220 Israeli hostages who need rescuing; this can only realistically happen through force. More broadly, Hamas has just demonstrated to the world in spectacular terms that it is not interested in compromise, negotiation or peaceful co-existence with Israel, and will indeed continue to attack Israel whenever and wherever it can – and therefore that Israel has no choice but to fight it until it no longer poses a threat. Necessity of course implies doing only what is necessary and no more (meaning that the resort to force must in broad terms be proportionate to the need – more on that below), but in this case, that would really have to mean the complete destruction of Hamas’s capacity to pose an ongoing security threat.
Regardless of what one thinks about the situation in Palestine and the Arab-Israeli conflict, and whatever one’s opinion is of Zionism, unless one wants to deny what international law calls the ‘principle of effectiveness’ (i.e., that we should recognise facts on the ground, namely that there is such a thing as Israel and there are such people as Israelis) then Israel has the right to use force against Hamas and probably I think to destroy the organisation – certainly to continue to attack it until it is either no longer able, or willing, to itself attack Israel. Insofar as Hezbollah becomes involved, Israel has the right to use force in self-defence against that organisation, too.
It is an interesting – and hopefully academic – question as to whether Israel also currently has the right to use force against Iran and Syria on this basis. In the case of Nicaragua v USA (1986), the International Court of Justice held that State A could carry out an ‘armed attack’ against State B through proxies, as long as the actions of those proxies could be properly imputed to State A, and that this would then engage State B’s right to self-defence. Can the actions of Hamas and Hezbollah in attacking Israel be properly imputed to Iran and Syria? That’s a question of fact, but it seems likely.)
The use of force issues, then, are relatively clear. I repeat: it doesn’t matter what your views are about the conflict and the wider context in political or moral terms, or even if you think that Israel should cease to exist. The law does not apply only to people who one likes. Its rules apply generally. As a matter of law, in other words, Israel is currently justified in using force against Hamas and Hezbollah, and possibly their sponsors.
It is where the conduct of hostilities is concerned, however, that things start to get very murky, and it is here where most the controversy lies. Serious people don’t deny that Israel is acting lawfully in engaging in armed conflict with Hamas, whatever their views about any of the other important issues surrounding the wider, vexed question of Israel and Palestine. The problem is the collateral damage which, again, no serious person denies is tragic and appalling. And this is where IHL is supposed to come into play.
The history of IHL’s development is an interesting one, but for our purposes, the be-all and end-all is almost entirely the four Geneva Conventions of 1949, and in particular the Fourth, which concerns the protection of civilians or ‘protected persons’ during wartime. This is for the simple reason that both Israel and Palestine are parties to the Conventions, so their contents absolutely and indisputably apply. (It doesn’t matter that Palestine’s Government is split between the West Bank and Gaza; as far as international law is concerned, a state is bound by its treaty obligations irrespective of the vagaries of government, unless the treaty in question has been formally repudiated.) There are other applicable areas of IHL, including the Hague Conventions of 1899 and 1907, and other areas which are sometimes argued to be applicable, but in the current conflict in Gaza we are safest to base ourselves on Geneva Convention IV of 1949.
The first thing to get out of the way here is the question of Gaza’s status. Geneva Convention IV contains some provisions concerning the duties of an occupier vis-à-vis citizens in occupied land. These concern the provision of everything from food and medical supplies to hygiene and public health, not to mention “spiritual assistance”. But since Israel has not occupied Gaza since 2005 (in the language of the Convention, it no longer “exercises the functions of Government” there) these duties cannot realistically be said to apply. There is some controversy about this when it comes to the application of international human rights law (a different body of law entirely) in Gaza and the West Bank. But it is clear that the drafters of the Geneva Conventions were thinking, when they used the words “exercises the functions of Government”, about circumstances such as the German occupation of non-Vichy France after 1940, in which one power essentially takes on the administration of an entire chunk of territory. Gaza’s status is undoubtedly, in practical terms, something less than an independent state, but it cannot really be said that Israel occupies it in that sense.
This means that the conflict has to be treated as being akin to the ‘classic’ scenario which the Geneva Conventions envisaged – a war between two parties who both purport to recognise the Convention’s contents. And here, it bears repeating that the law applies generally – not just to the side one doesn’t like. For example, Article 18 provides that hospitals must “in no circumstances be the object of attack”. But Article 19 provides that hospitals lose that protection if they are used to commit “acts harmful to the enemy”. Israel in other words must not attack hospitals, but may in principle do so if Hamas (as it is known to do) uses them for military purposes. Article 27 provides that protected persons (meaning civilians and wounded and sick combatants) are to be humanely treated and protected from violence, but Article 28 provides that civilians are not to be used as human shields. Article 33 prohibits reprisals against civilian property. But Article 34 prohibits the taking of hostages. And so on and so on.
In the modern law it is common to argue that customary law applies a ‘proportionality’ test to much of what goes on in an armed conflict, deriving from Additional Protocol I to the Geneva Conventions (of 1977), and this will be somewhat familiar to readers – commentators talk about proportionality a lot. It is important to be clear that this does not mean that there must be fairness in terms of the proportion of deaths suffered on both sides, a concept that is revealed to be utterly asinine when thought about for longer than five seconds. Not only would it be absurd (one imagines a team of UN referees adjudicating that since Hamas killed 1,400 Israeli citizens on October 7th, Israel is entitled to go and kill the same amount of Palestinians, but no more); it would also prolong conflict almost indefinitely, and ruinously, by preventing precisely the kind of knock-out blow that is needed to end a war once and for all. Can one seriously imagine what would have happened if WWII had been fought on such terms? (“Well, you guys dropped 10,000 tonnes of bombs on London last month, so we’ll do the same in Berlin tomorrow…”) We would still be fighting today. The war was ended not because the Allies were ‘fair’ but because they used overwhelming force in order to win. Astonishingly, no less a figure than Lord Sumption seemed to be perpetuating the daft notion that proportionality means rough equality of casualty figures in an interview with UnHerd a week or so ago, and it is amazing how many people seem to believe it.
No: the proportionality test in IHL means that a certain amount of collateral damage to civilian objects and civilian life is inevitable during almost any military action in the modern world, but this is permissible provided the loss is proportionate to the military objective that is sought to be achieved. What this means in real terms is that where an attack has some military purpose – i.e., that it was not deliberately targeting civilians, or reckless in the sense of being indiscriminate – it is not per se unlawful simply because civilian objects were destroyed or civilians killed. The analysis has to be more forensic than that: it inquires into the significance of the military objective, the nature of the attack, the amount of collateral damage that was incurred and so on. It is no good, in other words, to say that “Israel’s aerial bombardment of Gaza” (or whatever) is disproportionate. One would have to examine every single airstrike and determine if it caused any collateral damage and, if so, whether this was proportionate in respect of the military advantage gained by the airstrike in question, whether it was indiscriminate etc. At this point, nobody is in a position even to assess this (not even really the IDF itself). It generally goes without saying, but oughtn’t to, that each Palestinian rocket attack on Israel should also be subject to this analysis.
One should not be blithe about the real life aspect of all this. The plight of ordinary people in any conflict is awful, and one’s heart should go out to all of those caught up in violence through no fault of their own. This particularly includes, obviously, children, and no parent can bear to dwell on what it must be like for mothers and fathers currently living in Gaza. War is terrible. But there is a difference between something being deeply undesirable and it being unlawful. If war is going to happen, people are going to suffer and die; the law recognises this.
A final issue is I think important to address in closing. The term ‘genocide’ is bandied about a lot in contemporary debates. The word has a legal definition, found in Article 6 of the Rome Statute of the International Criminal Court. It is quite clear, even if it is sometimes criticised for being too broad, and it requires in particular the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. For all Israel’s sins, and for all that there is absolutely no doubt that it often breaches its international legal obligations with respect to Palestine and Palestinian civilians (most egregiously in its settlers’ gradual encroachments in the West Bank), its actions cannot be called genocidal in these terms. There is only one party to this conflict which is imbued with that intent, and it displayed it openly and gleefully on October 7th in its wholesale murder of innocent people in connection to absolutely no legitimate military objective, and simply because of their membership in a “national, ethnical, racial or religious group”. This should be borne in mind. One side in the Israel-Hamas conflict is plainly flawed and sometimes does very bad things. The other genuinely merits being labelled evil. The law does not recognise that distinction, but morality certainly does.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. He is the author of the News From Uncibal Substack page.
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BS
…funny how they never notice the ‘gleeful’ outpourings of the Jewish Government isn’t it…?
I posted Netanyahus speech yesterday which quoted Amalek..and the total destruction it tells Israel to commit..anyone listening to it should be appalled…
…in the last couple of weeks, let’s have a look at what some of these democratic..emphatically not genocidal psychopaths have said…
Netanyahu..Oct 8th…”We will turn Gaza into an island of ruins”
Ariel Kellner Politician in the Likud Party on Twitter 7th October….Now there is only one goal Nakba (expulsion of the Palestinians) A Nakba in Gaza that will dwarf the Nakba of 1948
Simcha Rothman, Likud Party 13th October…..”My goal is the destruction of Hammas, there is a simple test for this, with God’s help, if a Jewish child can walk alone through Gaza..if Gaza will still exist…
Daniel Hagari Israeli Army Spokesman Oct 10th Haaretz….”We are dropping hundreds of tons of bombs..the focus is on destruction not accuracy…”
Tally Gotliv, Likud Party, Oct 9th Twitter…..”Jericho Missile..Doomsday Weapon! That’s my opinion..powerful rockets to be fired without borders, Gaza to be smashed and razed to the ground without mercy.”
Maya Golan, Minister of Women’s Affairs, Likud Party, in an interview with ILTV..Oct 13th …” I want to tell the world what they have long known about me in Israel..I don’t care about Gaza, I literally don’t care about Gaza..they can go swimming in the sea.
I have lots of others from these humane people…they go hand in hand with their friends the barbarians from the USA…
Like the warmongering ghoul Lindsey Graham…October 12th…
“We’re in a religious war here. I am with Israel. Do whatever the hell you have to do to defend yourself. Level the place.”
Oh yes..these are definitely not in any way calling for genocide…these are the ‘good guys’…..obs’…..?
Of course it helps when one side defines any target they choose as a military one, in the absence of the other side being able to suggest that they can not be so categorised because all means of communication have been severed.
We’re on one child killed every ten minutes.
There is no legal basis for collectively punishing to death without precision an entire city.
The US and the UK government supports this, and as long as they do, it will continue and Hamas will not be eradicated short of extermination of the entire population.
But I’m sure that’s fine either way. It’s legal.
”We’re on one child killed every ten minutes.”
Seriously, do you have a source to support that assertion? Gaza is a war zone right now, therefore there is no independently verified data coming out of there. None. The only information coming out of Gaza is the propaganda which is controlled by Hamas.
Is there any ‘proof’ it’s Hammas propaganda?
..none of the humanitarian agencies or NGO’s have a problem with the information from the Health Ministry, which has a history of being verified as correct…
Even though there are problems collecting the information because of the war situation, they are still more likely to be better informed as they collect statistics from hospitals and morgues, and have done so for many years….and some information is getting through as there are still humanitarian agencies working there….
The people working in the Ministry aren’t the same ones in the tunnels…
..just the same as all of our doctors and nurses who work for the NHS, and are funded by the British Government…it doesn’t mean they have any allegiance to it…voted for it or indeed might hate it…
..some of the officials are actually from the Fatah party and not Hammas at all…
According to the Wall Street Journal this week…”Some U.N. officials, however, say the real number of casualties is likely significantly higher because the health ministry’s tally doesn’t include people still under the rubble.”
So this is the same Ministry of Health that reported that Israel’s missile hit a hospital and killed 500 people, when it was actually a Hamas misfired rocket that landed in a car park? That’s how reliable they have proven to be. It’s common knowledge that the ministry is ran by Hamas, ergo anything coming out of that organization needs to be treat as propaganda until independent verification can take place. I’m not saying it’s literally the jihadis running the joint but no information leaves Gaza without it going through the top brass in Hamas. They’ve got an agenda to push, remember? They need the world and all of their marching useful idiots to drum up hate towards Israel.
”Hamas is likely inflating the daily death toll in Gaza and the media should be wary of treating its figures as reliable, a former Reuters bureau chief for the region has said.
Luke Baker, who ran the news agency’s coverage of Israel and Palestine between 2014 and 2017, said that death tolls published by the Gazan ministry of health used to be credible.
“But Hamas has now been in charge of Gaza for 16 years,” he said. “It has squeezed the life out of honesty and probity. Any health official stepping out of line and not giving the death tolls that Hamas wants reported to journalists risks serious consequences.”
According to the Hamas-run health ministry, more than 5,000 people have been killed by Israeli airstrikes since the war began.
“I’m not denying there are civilians being killed. At all, including many children. That’s verifiable,” Mr Baker said. “What is not verifiable are the numbers that emerge throughout the day from Gaza of new death tolls — 700 killed in the last 24 hours, 500 killed in the Ahli hospital car park blast, 5,000 killed since October 8.”
“Hamas has a clear propaganda incentive to inflate civilian casualties as much as possible,” he said.”
https://www.telegraph.co.uk/world-news/2023/10/24/hamas-israel-death-toll-health-ministry-trustworthy-reuters/
Mogs..let’s not do this..you believe the pro Israeli agenda with no questions asked….there’s other evidence de-bunking your rocket claim, but I have said many times, what is the point? ….you’ll believe Israel every time….and dismiss anything coming from the other side…and believe it or not..I don’t have a particular side..it grieves me that Israel, I believe, will come out of this with their reputation in tatters…
I said yesterday I wouldn’t comment on anything you said, as I didn’t want to upset anyone obviously..but I think what I wrote makes a little more sense than quoting a man who isn’t there, and hasn’t been for many years..and I didn’t think it was particularly anything to argue about..if the UN and other NGO’s are saying they are happy with the figures then I don’t know what to add….unless you don’t think they know hat they are doing either?
I’ll stick to a separate lane in future…cheers!
Don’t bother ebygum… Seriously just don’t bother with her.
Nicely expressed.
The missile’s origin is also unverified independently, which, according to you is the case for any information coming out of Gaza.
How on earth can you talk about “propaganda” when you continuously post articles from Israeli news papers..
This is the problem we have, bigoted, hypocrites like you.
You are the problem
Do you mean to say that the assertions by Netanyahu that Hamas is preventing Gazans from leaving at gunpoint, and that Hamas command posts are under hospitals are not independently verified, so could equally well be propaganda.
And your alternative is? ———-Would it be OK if country Z invaded us and took 300 hostages and killed some babies because they had a political grievance? ——-Is our response supposed to be zero incase some innocent people may die in the process of getting these 300 people back and putting a stop to the people who did it?
So you think the only option to rescue people is to kill thousands more people…how does that work exactly…?
…don’t you think there might be an alternative way? Like a ceasefire, discussions and a mutual prisoner swap?
Then carry on with the carnage, because it really isn’t about the hostages at all….
If someone from Scotland or Wales did kidnapp 300 English people, do you think we would think a reasonable response would be to flatten those two countries, killing thousands of innocent civilians?
I mean, you might, so I don’t know…
I asked you what your alternative was. I asked if the response is supposed to be zero? You still have not answered any of that. —–Apart from nonsense about ceasefires and negotiations. ——-If someone wants to wipe you from the face of the earth I would love to see how you would negotiate with them. Maybe you would offer them a latte and ask “Can you not want to annihilate me please and would you like another Kit Kat”?——- A ceasefire always benefits the aggressor. They know then that they can do whatever they like and the mamby pamby UN will always call for ceasefires while they hide in schools and hospitals.——-I hear a lot of people say that Israel is the aggressor for occupying other peoples land. —But babies and old ladies did not occupy anyone’s land, and neither did teenagers attending a pop festival.
David Ben Gurion made it clear who he wished to wipe from the face of the earth.
“If I were an Arab leader, I would never sign an agreement with Israel. It is normal; we have taken their country. It is true God promised it to us, but how could that interest them? Our God is not theirs. There has been Anti-Semitism, the Nazis, Hitler, Auschwitz, but was that their fault? They see but one thing: we have come and we have stolen their country. Why would they accept that?”
David Ben-Gurion (the first Israeli Prime Minister): Quoted by Nahum Goldmann in Le Paraddoxe Juif (The Jewish Paradox), pp121.
“Let us not ignore the truth among ourselves … politically we are the aggressors and they defend themselves… The country is theirs, because they inhabit it, whereas we want to come here and settle down, and in their view we want to take away from them their country. … Behind the terrorism [by the Arabs] is a movement, which though primitive is not devoid of idealism and self sacrifice.”
— David Ben Gurion. Quoted on pp 91-2 of Chomsky’s Fateful Triangle, which appears in Simha Flapan’s “Zionism and the Palestinians pp 141-2 citing a 1938 speech.
“We must do everything to insure they (the Palestinians) never do return.”
David Ben-Gurion, in his diary, 18 July 1948, quoted in Michael Bar Zohar’s Ben-Gurion: the Armed Prophet, Prentice-Hall, 1967, p. 157.
But you never answered my point that babies, teenagers and grannies didn’t steal anyone’s land. So why kidnap teenagers and grannies? Then go hide in a primary school? I reckon if there wasn’t an Israel that Arabs and Muslims would find some other injustices to wail about
No, I was specifically addressing the following point you made “………If someone wants to wipe you from the face of the earth I would love to see how you would negotiate with them”.
The above quotes seems to prove the point that it is the Zionists who started all this wiping from the face of the earth alluded to.
Ok so you condone killing of babies, grannies, and the abduction and murdering of young people at pop festivals. —–Thanks for making your position clear.
Still to read the Hamas charter I guess, in which they call for the complete eradication of the Jews.
Read the article I posted above. Israel has every right to do what they are doing. God willing, Hamas will be no more, they are the scum of the earth, and clearly hold no care for their own, never mind Jews. Hamas do not warn Israel of attacks. Israel DOES warn the people of Gaza.
And the people of Gaza might do better not electing terrorists to govern them.
Get real.
Sorry, the Israelis are angry. Hamas butchers tortured people and babies. I heard something yesterday, that was done to a baby by Hamas murderers, that is seared into my brain, but I won’t repeat.
Hamas must be rooted out and destroyed. Those cowards hide amongst non combatants deliberately to ensure civilian casualties. Those hamas cowards use children as shields. They are not men or heroes they are evil people with evil intent. Their compatriots exist in my country. I fear for the future that we will end up having to defend ourselves against such evil in time.
This religion is hateful and bloodthirsty and must be defended against.
Yes it’s my favourite ex-Muslim again dropping the inconvenient truth bombs; ( 1min )
”As Arabs, we need to understand that Israel and the West are not our oppressors or enemies.
We, Arabs, are our own worst enemies.
We, Arabs, are our greatest oppressors.
We, Arabs, have killed and oppressed a million times more of our people than the West and Israel can ever do.
It is not Israel that married off my mother when she was a child. It is my people who did.
It is not the West or Israel that has been bombing Yemen for the past decade and killed 400,000. It is us, Arabs, who did it.
It is not the Israel that implanted Islamic extremism in the East and the West. It is our mosques, it is the books we worship, it is the Imams we follow, it is what we learn and what we teach.
It is not the West that forces us to treat women like commodities. It is our people.
And most of all, it is not the West or Israel that doesn’t value Arab lives.
It is us, Arabs, who do not value human life.”
https://twitter.com/JustLuai/status/1718915820821037296
The son of the cofounder of Hamas who escaped.
https://www.youtube.com/watch?v=k2BSDLFVT74
Well worth watching. Many insightful comments from anguished posters too, singing his praises for bravery in speaking out.
Agreed. A very interesting man. No wonder he wrote a book. But apparently the number of ex-Muslims is growing, which tells us something and is very encouraging. There are certainly many to be found on Twitter. Huge respect for people like that because you know it must be similar to escaping a cult and that it likely made them outcasts from their families and loved ones. Always easier to take the path of least resistance and just stay put so I have much admiration for the courage these people have shown in breaking away from Islam.
Ayaan Hirsi Ali was something of a trail-blazer a couple of decades ago. Respect!!
Thanks for the share. I’ve seen him talk before but not that particular interview. Bless him, he really is the ultimate ‘ex-Muslim’, given his heritage especially, but because his roots are in Palestine so he can legitimately speak with authority from all angles. So much respect for this man, and I agree with him fully. People bang on about the deaths of children and civilians in Gaza, but the fact they conveniently never acknowledge, in their over-eagerness to demonize Israel’s response, is that their deaths are caused by the terrorists, due to them stopping the civilians from fleeing after the IDF has warned them, or that they’re firing their rockets from schools, their HQ is under Gaza’s largest hospital etc etc. And still Hamas are firing missiles into Israel as we speak! Does that sound like people who are ‘freedom fighters’, who give a flying fluff about the citizens of Gaza? They’ve brought death and destruction on their own people FGS! Same as in video I linked to above.
I’ve seen a gazillion ”Free Palestine” signs and banners being waved around in extensive footage now, and heard ”Free Palestine!” chanted countless times, but what I’ve never once saw or heard is, ”Free Palestine from Hamas!” anywhere, which really is the crux of the matter as far as I’m concerned.
He would say that wouldn’t he! Son of Hamas leader, living in USA, certain death if he leaves and possibly given encouragement to make that statement on pain of……
Comment on the start of the text: There is no such thing as international law, just (in theory) treaties among souvereign states these adhere to except when they don’t. Law is something put into place by souvereign entities and there’s no such thing as in international souvereign, this being a contradictio in adiecto.
it’s not law anyway – law is discovered, like Natural Law, Common Law… everything else is legislation, invention to serve somebody’s political purpose at somebody else’s expense, and always undermines, or destroys Rights under Natural and Common Law.
This might be true, but *international law* is what this guiding set of principals is called.
Binding them together as internationally as possible under a pseudo-legal umbrella strengthens the power (albeit small) they might hold to prevent descent into tribal chaos. In this case, as the author points out, both parties have signed up to the Geneva Convention, so should in principle be bound by it. Consequences for breaching this treaty might be weak to non-existent, but they could extend to potential international legal persecution of guilty parties over time, economic sanctions and so on.
In reality, like you suggest, it all depends on might and will rather than bits of paper, but is there a case to be made that it is better to cling onto a largely illusory set of principles than not have them at all? It’s a genuine question. What would take its place? A truly international, armed, effective sovereign entity? I’d rather stick with inaccurate definitions and better potential to release the seismic pressure of conflict at a regional level.
This is a very important distinction as I (and about 3 million other people) who also wrongly believed that exercising treaty rights meant something other than it really did had to find out in the course of the (still ongoing) Great Gebrexel™. International treaties are declarations of intent believed to be valid at the time they were made. In the given context, this means articles like the one above are just ex post factum justifications. Israel has the power to kill anyone in Gaza it choses to kill and the international support to avoid question being asked about that. Hence, inhabitants of Gaza are just barbaric animals which deserve to be killed. If this is legitmate under so-called international law, then because these rules were specifically made-up to enable it.
Question: Why is it a war? Israel says it is at war with Hamas, which administers Gaza, but Gaza is not a state.
Are the al-Qassam Brigades a foreign army, or are they terrorists and kidnappers?
If the latter, then why is this not a matter of law – catch and punish the criminals, rather than a ‘just war’?
I appreciate that this is now the situation on the ground, but with the vagueness about what Gaza actually is (in the views of many, a vast concentration camp), it seems that the question remains not entirely determined.
I prefer to think of Gaza as part of Egypt even if it was part of the British mandate. Just like the other neighbours they don’t want Palestinians taking over their country which is why they keep their border closely controlled. I believe Lebanon used to be quite nice before the Palestinians arrived.
Not sure how that answers my question. Egypt is not in control of the al-Qassam brigades.
I’m hoping Dr McGrogan might explain the law here to me.
You say Gaza is not a state, I say it is part of Egypt hence if anyone thinks of it as a concentration camp then it is an Egyptian concentration camp.
It is declared war because under international ‘law’ that permits the doing of certain things legitimately.
War can be declared on whom you like.
Can you expand a little?
The Gaza Strip is an exclave, I believe but not all exclaves/enclaves are the same. You wouldn’t say that Italy imposes a blockade on the Vatican or San Marino, and you can walk freely across the border. It would be strange to say that crossing the border in either direction was an ‘invasion’, but we say that about Gaza/Israel.
I’m hoping somebody can refer to the relevant articles of international law here.
Red flaggers. I am not making an argument; I am asking a question because I don’t know the answer.
It’s a fair question that I don’t think has a definitive answer, or rather the answer depends on your point of view about the legitimacy of the State of Israel as it currently operates. It seems like a lot of people think there should be a country called “Palestine”. If you think you ought to be a country and there are enough of you, and your claims are plausible at least in some eyes, then a lot of people will see that as a war.
Indeed, de facto not de jure ?!
Some interesting stuff here which might help, and some useful links…..
Article 51 of the UN Charter provides for the use of force by a State in self-defense only in the case of an armed attack by another State. (You read that right ANOTHER STATE)
The advisory opinion of the ICC in 2004 affirmed that Israel is the Occupying Power over the Occupied Palestinian Territory & that Article 51 of the Charter is not applicable in this case – when the threat originates from a territory over which Israel exercises control.
The protection of civilians (POC) and civilian property is the paramount obligation in the current circumstances.
There must be a clear distinction between “Jus ad Bellum”, which refers to the conditions under which States may resort to war or to the use of armed force and…
“Jus in Bello”, the laws of war which regulate the conduct of all parties to an armed conflict.
all those who advocate for the right of Israel to defend itself seem to forget that the reprisal for the Hamas October 7 attack, which today has killed more than 8,000 including 3000+ children in Gaza is an armed attack on a territory and not a state
https://twitter.com/LFCNewsMedia
Thanks, but 2004 was a year before the dismantlement of the settlements.
3 quarters of members of the UN are ruled by Kings Colonels Tyrants and Dictators. Only one quarter come from democracies……I do not want to adhere to anything from the UN whether it be about pretending to save the planet , immigration, or anything else.
On that I think we can all agree.
Who cares. You fight the Muslim Jihad whenever it appears – regardless of word salads, arcane treaties and what the legal profession thinks.
Do you know what FerdIII I don’t agree with you at all, but I do appreciate the straight talk…
unlike a lot of people dressing it up with rules/laws and faux legitimacy….
FFS, it just gets worse for this poor young woman and her family.
”Shani Louk, an Israeli-German national who was abducted by Hamas terrorists from a music festival in Israel earlier this month was murdered and beheaded, both her family and Israeli President Isaac Herzog have confirmed.
A DNA sample taken from part of a skull bone found by the Israeli military has been identified as belonging to the 22-year-old who was kidnapped by Hamas during the attack on Israeli territory on Oct. 7.
The skull was found separate from the rest of her body which has not yet been located.
“Her skull has been found. This means that these barbaric, sadistic animals simply chopped off her head as they attacked, tortured, and killed Israelis,” President Herzog told the German newspaper Bild on Monday.
“It is a great tragedy and I extend my deepest condolences to her family,” he added.
Shani’s family had remained hopeful that she would be found alive, despite disturbing footage that circulated on social media earlier this month showing her seemingly lifeless and naked body being spat on as it was paraded by Hamas terrorists in the back of a truck.
Family members also confirmed the tragic news on Monday.”
https://rmx.news/israel/german-national-shani-louk-was-beheaded-by-hamas-israeli-president-confirms-her-skull-has-been-found/
She was also a supporter of the Palestinians. Some gratitude. Also, I can’t understand why anybody would be sick enough to downtick a comment like this one highlighting the brutal murder of a young woman, regardless of which side of the argument you are on.
Indeed, Nicholas. Just the usual arseholes that troll me wherever I go, hoping to get a reaction or acknowledgement. Some of them even have names.
Nothing unusual where I’m concerned.
I wonder if it’s meant to have had some sort of effect by now…
OK, this is warped but at the same time we know this is their mindset. I don’t know if this man reflects all Palestinian fathers but it goes back to the lack of value they place on human life doesn’t it? Did he attempt to flee South or did he choose to stay and sacrifice his family? But best to keep on narrative and maintain the blame lies squarely at Israel’s door, right? ( 1min )
https://www.jihadwatch.org/2023/10/palestinian-we-are-carrying-out-ribat-jihad-war-for-land-claimed-to-be-islamic
P. D Ouspensky———–“It is impossible to stop war, because you are forced to make war with others who make war on you”. ——-
’One should not be blithe about the real life aspect of all this.’
One should not have written this article then.
Despite the contrivances of law detailed so blithely by McGrogan, history will judge the facts thus: Israel built a ghetto, then set about liquidating its prisoners, using a fraudulent declaration of ‘war’, against a supposed terrorist organisation operating within it.
To discuss this as though two countries have gone to war, is a diabolical and historically illiterate twisting of reality, of the kind only a lawyer could conjure.
https://www.telegraph.co.uk/news/2023/10/27/international-law-backs-israels-right-to-defend-itself/
I am shocked at the anti semitism on display in many comments sections of this site, and others. Israel has been attacked by murdering evil and we want them to do nothing?
Imagine Wales was constantly rocketing England and an attack was made across the border which murdered 1400 English people in vile and disgusting ways. What would we expect the English response might be?
I feel that Britain would have made the best nazis had we been invaded and taken over. God help us.