In this week’s podcast Selwyn Manning and I work through some of the under-examined aspects of the latest round of Israeli-Palestinian conflict and the stakes involved in Samoa’s disputed political transition. You can find it here.
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.
The Israeli offensive in Gaza has rekindled debate about the role of collective responsibility in the initiation and prosecution of war. Israel is specifically accused of collectively punishing all Gazans in retaliation for Hamas missile attacks on the Israeli population, with some claiming that aspects of Israeli military operations amount to war crimes. Such may or may not be true, but the issue is more complex than that.
Hamas argues that it is justified in firing missiles into Israeli population centers because all Jews are complicit in the Zionist enterprise and all Israelis eventually complete some form of military service. From that perspective better to kill a Jew in the crib than on the battlefield. Sunni extremists in Iraq target Shiia worshippers at their holy sites because they hold them accountable for the apostasy of their clerical leaders. Osama bin Laden has openly stated that the US public made itself a target for attack by repeatedly electing pro-Israeli and anti-Muslim administrations. Kurds and Armenians hold all Turks responsible for the sins of the Ottomans, Kemalists and their successors. Chechnyan militants hold all Russians culpable for the depredations of the Russian military in the post-Soviet republic. Germans are still held by some to be collectively guilty for the sins of the Nazis. The Japanese are accused on not feeling guilty enough for the depredations of Hirohito and company. The list of collective finger-pointing, responsibility, guilt, targeting and punishment is long.
The issue is complicated by the fact that, by the criteria of collective responsibility, open and honest elections increase the culpability of the electorate in the sins of their political representatives. That was Osama’s point about the US. Whatever one may think about the US electorate’s complicity in Bush 43’s follies, by that logic the Palestinians are collectively culpable for having voted in favour of a Hamas-majority parliament in 2006. Put another way, citizens of non-elected authoritarian regimes cannot be held accountable for the behaviour of those regimes unless there is some other mechanism to attribute direct support for the authoritarian project. An example would be Argentines during the Falklands/Malvinas war, which was initiated by a brutal military dictatorship feared by its own people. Conversely, the citizens of all democratic regimes are complicit in the behavior of their governments because it was their majority vote that brought those governments into power. The minority of those who voted against these democratically-elected incumbents may take issue with that (and indeed have), but the logic is inscrutable on the point: mass elections make the masses collectively responsible for the conduct of their elected leaders. Continue reading
There is much argument about who started the latest Gaza conflict. Many believe that the Hamas rocket attacks on Israel were the precipitating event, and that Israel has the right to respond. Perhaps that is true. Many question why, during a supposed truce, Hamas would have continued to stage rocket attacks on Israeli territory. The reason, in my view, was both tactical and strategic.
Hamas demands the illegal Israeli settlements on Palestinian land be withdrawn before any durable peace can be achieved. It believes that it has the right to armed resistance against illegal occupation of its land. Israel demands that the rocket attacks stop before talks on a land-for-peace swap can begin. Hamas militants believe that to cease their attacks will be a tacit surrender to Israeli demands. They also believe that stopping the attacks are a sign of acquiescence on the terms of  any deal. Thus the rocket attacks are designed to frame any discussions in a way that is favourable to Palestinian interests. They are, in a word, part of a “moderate-militant” negotiating strategy by which the attacks are designed to give Hamas’s political wing more room to maneuver when negotiating the terms of any land-for peace agreement. Anyone familiar with negotiations understands the principle: you drive a hard bargain and settle for something less. In this instance the bargain being driven has an armed edge.
There is more to the picture. The reason that rocket attacks are used is that since 2006 no successful suicide bombing attacks have been carried out in Israel (although many have been thwarted). Given the heavily fortified nature of the border, rocket attacks are the only way to make the militant point. Moreover, the point is not only being made to the Israeli authorities. It is also, and perhaps more importantly, being made to the Hamas moderates who make up the bulk of its political wing, and who are the potential negotiators on the Gazian side (since Fattah represents the Palestinian community in the occupied West Bank). Thus the rocket attacks served episodic notice of militant conviction on two fronts, internal and external, with the internal message to the political wing being “sell us out at your peril.”
Regardless of whether this explanation of the rationale behind the rocket attacks is correct or not, one thing is now clear: the rocketeers seriously underestimated Israel’s determination to eradicate Hamas’s militant wing while allowing its political moderates to live to negotiate anther day ( I elaborate on this and some other aspects of  the conflict over at www.scoop.co.nz in an essay titled “Who Benefits from the Gaza conflict?”). That process is now taking place.