Proportionality and avoidance of collective punishment.

datePosted on 11:46, May 17th, 2021 by Pablo

Not wanting to get into an endless debate here, but as a political person I cannot pass on making a small comment on the current Israeli-Palestinian conflict. I do not pretend to be a subject expert on the tortured history of Israeli-Palestinian relations and am not about to get into the finger-pointing and “whataboutism” surrounding the latest precipitants of collective violence, but as a student of armed conflict (yes, there is such thing), here it goes.

Among many others, there are two principles embedded in the laws of war (jus in bello): in the conduct of armed operations the use of force must be proportional and discriminate; and collective punishment of unarmed populations must be avoided. Even when not specifically phrased in these terms and whether done by state or non-state actors, behaviour that violates these principles are classified as war crimes. The legal work on this subject is voluminous.

Unfortunately, these norms continue to be regularly violated. In the desire to apply superior asymmetric force to an adversary, armed forces lacking a firm moral compass or professional ethos disregard these principles as a matter of course and yet at their peril (think of the Syrian military as a recent example). Conversely, weaker armed groups use disproportionate and indiscriminate force against non-combatants to compensate for their inability to prevail in a conventional (and rules bound) force-versus-force confrontation (think of Daesh). Whichever the reason, disproportionality and collective retribution lead to indiscriminate violence against innocents, which opens up the perpetrators to legal consequences or replies-in-kind should there be no legal consequence.

If eye-for-eye retribution is to be avoided, regardless of who they are and the cause that they espouse, those who order and carry out attacks in violation of these principles must be legally held to account. If not addressed by their own judicial means, there is a place for that to happen. It is called the International Criminal Court (ICC) in The Hague. However, there is a problem with adjudicating justice via the ICC because it depends on it being recognised by sovereign states and objectively supported by the most powerful among them. Unfortunately, countries like Israel, Iran, Russia, the PRC, Turkey, most Sunni Arab states and the US do not recognise the ICC, so its scope of authority is limited at best.

The Palestinian Authority recognises the jurisdiction of the ICC but Israel and Hamas do not. Israel argues that Palestine is not a sovereign state in spite of its non-member observer status in the UN (the ICC is a dependency of the UN) so cannot be party to the Rome Statute that established the ICC. It also argues that Israel has its own investigative bodies so does not need ICC interference in its affairs. Hamas is not recognised as a sovereign governmental body even though it administers the Gaza Strip (in a division of authority with the Fatah-led Ramallah-based administration that is recognised as the Palestinian Authority), so is excluded from ICC jurisdiction even if its members can be prosecuted by it (as is the case with Israelis). In addition, because it is not a party to the Rome Statute, Hamas refuses to recognise the ICC as an instrument of accountability. Because of the lack of universal recognition, the ICC cannot gain UN Security Council (or even General Assembly) approval to extend its jurisdiction to non-signatory states.

Even so, the ICC has (perhaps as an aspirational rather than practical goal) on-going investigations against both Hamas and Israel dating back to 2014 and has launched another against both sides as a result of the current conflict. It is more than likely these will be fruitless unless the international community coalesces around a demand for accountability for war crimes in this ongoing tragedy. Specifically, the time has come for larger powers to use their diplomatic strength to support the ICC investigations against Hamas and Israel and thereby put on notice those on both sides who order and carry out war crimes that they will be prosecuted for their actions.

Again, this is not about who started what or re-litigating historical grievances. It is about trying to stop the commission of war crimes once armed conflict is engaged. The ICC can investigate the veracity of claims of civilian targeting and can charge commanders and political leaders on both sides for authorising attacks on them (the evidence is already available on video). It can then issue international arrest warrants for the accused that, if not enforced inside of their own territorial jurisdictions, will be enforceable if they try to leave the safety of them (think of Pinochet when he went to visit Maggie Thatcher and wound up under de facto house confinement for months because he could not leave Britain without risking arrest for crimes against humanity–in his case against his won people). This type of move is therefore a holding to account for current and past crimes and a deterrent against future crimes. The impediments to doing so are many but the need to do so is even greater.

The desire to use the ICC as an agent of justice and deterrence may be wishful thinking given contemporary realities but it seems that with enough support in the wider international community, such an ICC intervention could be a prelude to the political settlements required for peace. And even if its potential use only helps stop the current fighting, then a small defense of humanity will have been served.

5 Responses to “Proportionality and avoidance of collective punishment.”

  1. Di Trower on May 17th, 2021 at 13:25

    Thank you Pablo. The situation as it is at the moment feels as if it is poised on a knife edge and could very easily get out of control. I don’t hold out much hope for a quick or lasting resolution, unfortunately, as there’s too much bad blood that has gone before, for many decades now. It’s not been helped by the previous US administration either. Let’s hope the Biden administration is able to assist in a more constructive way.

    Jacinda Ardern’s statement regarding the current state of affairs in Gaza was on the mark as have Nanaia Mahuta’s comments been recently, in my view, and have been balanced and fair. I hope other administrations are voicing similar concerns and that this awful situation can be pulled back from the brink before many more innocent people are killed.

  2. Pablo on May 17th, 2021 at 15:58

    Di:

    With regard to your second paragraph. Like any other country NZ could introduce a motion in the UN calling on the ICC to investigate, charge and seek the detention of those who authorised the use of indiscriminate force against civilians (as per my suggestion in the post). The trouble is, first, that NZ will likely not get a majority of votes in favour of such a resolution because of direct opposition or pressure applied to other states by parties vested in the conflict (say, the US) and secondly, because the motion is virtually unenforceable without the support of great powers in and out of the Security Council.

    In addition, NZ is a down-stream intelligence partner of the Israelis via its 5 Eyes and other intelligence partnerships (say, with France and Singapore, both of which have significant ties to Israeli intelligence), so it will not want to jeopardise the intelligence flows emanating from Tel Aviv. So I doubt that there will be more than “balanced” (equidistant) and generalised lip service and platitudes offered by the NZ government on the matter even if it has tried to position itself as the champion of small states and underdogs in international affairs.

  3. Di Trower on May 17th, 2021 at 16:09

    That’s pretty depressing to learn, Pablo. Could there be any way in which NZ could get together with other states who share similar concerns in order to pressure those that have a will in the UN to ask for the ICC to investigate as you suggest? But even then, from what you say, it doesn’t sound as if this would even carry much weight if any. It seems that belonging to Five Eyes puts us in an insidious position in many ways.

  4. Pablo on May 18th, 2021 at 13:35

    Di:

    To give you an idea of the problem, consider that the US blocked a UN Security Council resolution–sponsored by China, Norway and Tunisia–condemning both Hamas and Israel and calling for a ceasefire. The US was the only UNSC member out of 15 to not support the resolution and as a permanent member with a veto, it killed the motion. So long as UNSC motions fail, then any General Assembly resolution will lack teeth and also fail. But at least a GA motion to get the ICC involved would give notice as to how NZ sees things and give it at least the appearance of a leadership role in trying to reach a short-term solution to the conflict.

  5. Di Trower on May 21st, 2021 at 14:27

    Thanks Pablo. It’s looking more hopeful now that both the Israeli and Palestinian governments have agreed to the Egyptian brokered ceasefire for now. I was incredibly disappointed in Biden and the Us administration’s stance though.

Leave a Reply

Name: (required)
Email: (required) (will not be published)
Website:
Comment: