There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.
And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.
(Here we mean what is called “public international law” – the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)
One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.
But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.
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The current news from Israel and Gaza raises the question of compliance with international law.
Many have strong views on what is happening in Israel and Gaza.
The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.
And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.
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The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum – a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.
The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.
The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.
Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.
And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.
But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and to the specific objectives to which the concept is being applied.
And some will say that some means may never be proportionate to any legitimate objective.
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Only on-point (and sensible and constructive) comments will be published below – there are other places on the internet for other comments.
See this on proportionality. https://rozenberg.substack.com?utm_source=navbar&utm_medium=web&r=1vv9fp
Thanks.
I think the key message from this is that proportionality relates to the means used to achieve the legitimate military ends. Is the military action using the amount of force necessary to achieve its objectives.
It doesn’t relate to the effect on the individuals affected nor on whether it is greater or lesser than the offence that was the causus belli.
Additional factual points:
– Neither Israel nor the USA has ratified Additional Protocols I and II to the Geneva Conventions. Those Protocols include many of the requirements set out in the excellent Just Security article.
– Neither Israel nor the USA accepts the jurisdiction of the International Criminal Court.
– (Minor additional point for completeness: both Israel and the USA have ratified Additional Protocol III. Protocol III is solely concerned with the “Red Crystal” as a Distinctive Emblem alongside the Red Cross and Red Crescent that may be worn by medical and religious personnel in times of war.)
Thank you David for the link to the article by Goodman et al on proportionality. It is useful to compare this with the speech in the Lords by Guglielmo Verdirame KC on this matter. The first is a serious and detailed analysis; the other is not.
That blog is an excellent source of information which I will bookmark for future reference.
Proportionality is certainly important in judging the conduct of war. However some aspects discussed are clearly stated as being war crimes in absolute terms. Proportionality does not apply in those cases.
Further complications arise from the legal status of Gaza and the West Bank. Are they occupied, independent or internationally recognised states? In theory they are independent but Israel retains control of external borders, airspace and coastal waters in the case of Gaza. Supply of goods, services and freedom of movement are controlled by Israel. Independence is therefore very limited. Also, Palestine is not recognised as a State by most of “the West”.
Ultimately what is or is not a war crime hinges on verification. Relatively few alleged war crimes make it to the international court for trial. I suspect accusations of war crimes and terrorism are mainly intended for political effect now, not actual prosecution in the future.
“Israel retains control of external borders, airspace and coastal waters in the case of Gaza. Supply of goods, services and freedom of movement are controlled by Israel.”
Not all borders, not all supply. Egypt is on the other border of Gaza.
Indeed it does, and if it wasn’t for Egupt no aid would currently be supplied to the Gaza Strip. But the status of Eygpt’s border does not change the fact that Israel has operated a de facto blockade of Gaza since 2005. This hardened after Hamas won control.
My point was about the independence of Gaza. Israel could have given Gaza and the West Bank complete independence but it chose not to. I think the region would be closer to peace now had Israel done so. Economic progress in Palestine would have weakened the appeal of militants and terrorists. A hard line may be good for political purposes, but it is rarely the way to peace.
My second reply.
Where Netanyahu has failed is a) sidelining any talks towards a two-party state (suggested by the UN and Ben Gurion in 1948), indeed seemingly working against them for his own ends, and b) gradually undermining the Israeli court system and the presence of Israeli Arabs in that court system and in the Knesset.
Since the pre-trial chamber of the international criminal court has decided that the ICC has jurisdiction over the State of Palestine, whatever that might be, the ICC presumptively has jurisdiction over crimes committed by Hamas and by Israel on Palestinian territory. As such, I wouldn’t agree that these norms are unlikely to ever see the inside of a court.
Instead, I would recommend the (truly) interested reader to look at the judgments of the Yugoslavia Tribunal in the case around Operation Storm (Gotovina et al.). That case turned exactly on proportionality: did the defendants order artillery shelling on the civilian population without regard for civilian casualties, or did they take the appropriate steps to avoid civilian casualties/keep civilian casualties to a minimum? They were convicted on first instance, but acquitted on appeal.
Basically the trial chamber applied a rule that any impact that was further than 200m away from a legitimate target was evidence of an unlawful attack. The appeals chamber decided that that was much too simplistic.
https://www.icty.org/en/case/gotovina
One point I didn’t notice in any of the discussions you linked to, but which I saw made elsewhere recently, is that there is another layer of complexity: whether in international law Hamas acts as the state of Palestine, or whether they should be treated as an armed, non-state actor. I gather that this may be a relevant distinction in some contexts.
I’m not a specialist so may have gotten the nuances wrong – I simply offer in the hope that someone who DOES know may chip in with more.
Thanks as always for your very interesting blog.
We are indeed in a vague territory.
People hide behind wished for legalities to avoidly mean a decision about values. I hope the world can make a decision about values, and about enforcement. The only vehicle for this currently is the UN and the perspective is not encouraging as long as Russia can get 80 plus votes for reinstatement on the Human Rights Council or whatever it calls itself.
Currently “International Law” is a PR meme, nothing more nothing less. It is evocative – see you in court sometime … twenty years from now… maybe … wherever?
As an amateur student of history, the depressing events in the Middle East that have recurred through my adult lifetime just illustrate how far international law and institutions have failed to develop and embed since the failures of both the League of Nations in the 1930s and the post WW2 settlement; the latter of which fractured very quickly and only went downhill with the post cold-war decline of resolve of western democracies to hold themselves to those standards (viz Iraq and Libya) emboldening Russia and China in their current strategy to create their own “settlement” of international law.
I’d argue world events can drive change in thinking, case law and the law itself over time.
The ICC and a coalition of big and little states as well as Ukraine itself are now actively collecting evidence to prosecute thousands of different types of war crimes following Russia’s invasion of Ukraine. Years of internationally reported trials are likely to result. These trials might push refinement and redrafting of international law and of the procedures for delivering justice.
For example, it doesn’t seem sustainable morally, politically or legally to name certain atrocities as “war crimes” in Ukraine but not name as such clearly similar events in Gaza.
Not going to comment on the moral or political angle, but as far as the legal angle goes, I respectfully disagree. Acts which are “clearly similar” will sometimes be criminal and sometimes not, depending on the context.
To give a few examples of how that can occur, sometimes there’s a defence which may or may not apply (e.g. punching someone to start a fight vs punching someone in self-defence). Sometimes it’s because intent is a necessary element of the crime (e.g. the definition of theft includes that it must have been “dishonest”, and if the person was acting honestly (as defined in Ivey v Genting Casinos) they have not committed the crime). And sometimes it’s because something is only lawful if done with permission (e.g. a restaurant selling alcohol without a license).
So the law clearly understands that just because two events are similar does not mean they have the same legal status. It’s very easy to throw around accusations of “war crimes”, but this is a technical legal concept with technical legal definitions and doesn’t necessarily mean what people think it means.
Well-explained, thanks.
I’m arguing (as a non-lawyer!!!) that law changes over time, being redrafted or construed in the light of case law, in order to stay broadly in line with social views of what is equitable and appropriate.
For example, discrimination against individuals and groups on the grounds of race, age and sex wasn’t unlawful in the UK before the Wilson government and succeeding governments introduced anti-discrimination laws. The legal changes were probably prompted by what was happening in UK society at the time (eg far more women were working than in previous generations, due to an increased rate of marriage breakdown more of them were their families’ breadwinners, etc).
What I think is happening now is that people in many nations feel the need of global laws to stop the climate catastrophe that’ll affect all of us and to stop the powerful (and malign) trampling over the lives of everyone else. We’ve also seen – in Russia’s invasion of Ukraine – how fragile the international order is. It seems likely there’ll be a renewed international effort to codify “global” laws and create more effective sanctions on wrongdoers in response to these shocks.
I wholly accept the other points you’ve made.
Ah, proportionality. Led me to thoughts of burglars and the choice between a claw hammer, a golf club, a rolling pin or a rolled up copy of the Guardian. Then on to the notion that we were getting close to angels on pinheads territory with law and this latest conflict. Useful to have the politicians looking over their shoulders though.
The Realpolitik has the whiff of high and low power grabbing and how this will play in the US elections and post 2024. The lawyer’s role, to watch and keep score.
I have always viewed public international law as a matter of norms, rather than law. Norms are important. Norms can be formal. Norms are often enforceable: shunning and shaming. (Try buying something with Tunisian currency on the streets of London. There’s no law against it. But you can’t do it, because there is no norm of accepting Tunisian currency.) But norms are not legally enforceable. Shunning and shaming can be more potent than a judgment (sometimes), but they’re not the same thing.