More on Gaza

Sorry I haven’t posted in a while. I’ve actually been meaning to write something like this post but I’ve had stuff on. Recently, criticism of Israel’s Gaza offensive, and in particular legal criticism of these actions, has grown pretty intense. One early – and very interesting example – was this letter to the Guardian, which is signed by some very good people, a fair few of them being critical legal people too. The general structure of this letter – a legalistic argument, invoking academic authority and a mixture of critical and mainstream academics – makes it very similar to a previous this intervention against the Iraq war. As such, the same considerations expressed in this very incisive critical reflection on the problems of such an approach resurface. One of the limitations I found with this piece was what struck me as a ‘liberal’ approach which, rather than naming any of the parties involved in the action, equally condemned both sides and elided completely the historical and material context of the assault, merely noting a series of laws which (by implication) have been violated. In this respect I think this letter in the Guardian was much better and I think that it is quite telling that it is fairly obviously not a lawyers’ statement. However, I’ll return to this point a bit later.

Aside from the above-mentioned letter there has been a raft of articles, opinion pieces etc. arguing that Israel has committed war crimes. Now, as was clear from my other postings in this area, I am unconvinced that even the substance of legal argument here can be marshalled into a particularly progressive direction. My basic argument in this respect is that the law is at best indeterminate and, more than this, seems very unlikely to be able to actually limit the behaviour of imperialist states. But, as Susan Marks has noted (2000: 144):

[I]ndeterminacy is at one level international law’s weakness, at another its greatest strength. It is precisely because principles are contradictory that we are able to find in them counter-systemic logics. It is precisely because norms are unstable that we can lead them to ‘surpass themselves’.

Perhaps, then, what we are seeing is indeterminate legal argument being driven by a powerful popular movement and used to condemn Israel’s actions. However, I would argue that even if this is the case, there are still some big formal and substantive limitations to this practice, which may point to the inefficacy of using law in such a way.

So I think the first important point to note is a procedural/jurisdictional one. This is very well summarised by LWC. Basically, if we want the language of war crimes to have any critical bite, it seems necessary that we have some kind of forum which can definitively say that the events which took place amounted to war crimes and pass on some kind of punishment – viz. a court or tribunal. But, as LWC notes the procedural bars to this seem pretty difficult. The first complicating fact (which will resurface continually in the technical-legal debate) is that there is no ‘state’ of Palestine. There are a Palestinian people, who have a right to self-determination, but the land they occupy is a legal anomaly. Secondly, the ICC is out, aside from the state problem identified above, Israel is not a signatory to the ICC Statute. The next option is some kind of Security Council action – this could involve assigning the situation to the ICC or using a resolution to establish a separate tribunal. What with the United States remaining a permanent Security Council member, with the attendant veto power this seems highly unlikely (and I don’t think an Obama Presidency will alter this basic fact).

Thirdly, we can talk about universal jurisdiction. Well, it’s certainly the case that war crimes may attract universal jurisdiction (the majority in the Arrest Warrant case seem to say this) but this is not enough. Because while national courts may have jurisdiction over war crimes it is necessary for the ‘war criminals’ to be in the country, be apprehended and then tried. Now, even assuming the first two requirements come into fruition most national courts have ‘safety valves’ which basically allow them to avoid such prosecutions, we already know that these ‘safety valves’ can and will be used in the case of Israeli officials accused of war crimes. The best we can hope for with this type of reasoning is that certain Israeli officials (those who are not protected by immunities) can be made to feel a bit uncomfortable about travelling abroad. Fourthly then, to the best (indeed possibly the only) hope. As reports have indicated, it is possible that the General Assembly might ask the International Court of Justice for an Advisory Opinion on the matter. There are real questions about the competency of the ICJ in being able to reconstruct the facts on the ground to a great degree of accuracy. The problem of Palestinian non-statehood also resurfaces here as it becomes very difficult to determine what obligations are owed to and by an anomalous entity such as Palestine. This is assuming – of course – that the ICJ doesn’t simply say that the facts are not within its jurisdiction (which some people think is the sensible option).

Assuming that these barriers are overcome, I think there are a series of problems which mean opposing actions in terms of ‘war crimes’ etc. tend to mean that this opposition assumes a ‘liberal’ character. I would argue that this liberal character makes it very difficult to understand and fully oppose Israel’s action in Gaza and its general oppression of the Palestinian people.

So, what we should first note is that all the talk of war crimes is highly likely to focus on a series of specific events – the use of white phosphorous, the attack on UN buildings, the attack on the school etc. – rather than on the attack as a whole. As I’ve previously said, I remain unconvinced that the proportionality argument will hold up once we get to the nitty gritty of legal argument. But even assuming it does, this doesn’t condemn the attack per se but merely the way in which it was carried out. What seems very likely then is a series of de-contextualised ‘events’ which miss the bigger picture.

It is this tendency that really bothers me about the ‘war crimes’ arguments. I’m worried that in focusing on these highly specific acts, and apportioning blame to a series of ‘guilty’ individuals we miss out on the broader structural and systemic logics (as well as the everyday concerns) which have driven this attack. This is quite evident by the fact that the media – and legal attention – only flared up when there was a direct, military assault on Gaza. Very few of the legal commentators have mentioned the blockade and the great suffering it has caused (with a few honourable exceptions). It’s quite interesting that when the blockade has been mentioned at all, it is only in conjunction with the notion of a ‘humanitarian crisis’ in the Gaza strip, yet the language of ‘humanitarian crisis’ seems to elide the deliberate, conscious nature of the creation of this crisis.

Even if the blockade is brought into view (and this seems highly unlikely) legal talk – which is about abstract obligations and which state/individual violated them – fails to get to grips with why it is that that Israel acts in the way it does. I don’t want to engage in a massive analysis here, but it is pretty clear that Israel is adopting the classic colonial rhetoric of condemning the natives as backwards and inhuman, with lives that are worth much less than the lives of the settlers. If Israel is driven by this logic, then simply condemning its actions as criminal is not going to solve anything.

This lack of a focus on the broader issues is reflected in the way that legal argument treats the actions of Hamas. A lot of the legal commentary seems to unproblematically accept that Hamas’ actions constituted a , the problem is simply that Israel overreacted to this. But this can only be achieved through abstraction. One might just as easily treat Hamas’ actions as a response to Israeli actions. The only way to properly understand the conflict is to look at its historical and material context – not just isolate a particular crisis and begin to ascribe responsibility. Legal argument also has to almost ritualistic denunciation of Hamas’ actions of also breaching international law. What is interesting here is that Hamas’ actions are simply per se illegal by virtue of their low technology (which as Chris Bertram points out is morally bizarre). Furthermore, the liberal legal concentration on abstraction completely ignores the massive difference in the scale of the thing – equally denouncing two sides of a conflict when one side possesses a massive technological advantage and has killed a great many more civilians amounts to taking sides.

So – in a nutshell – my problem with the ‘war crimes’ line is that it treats the attack on Gaza as a kind of unique crisis composed of a series of mini-crises, none of which is linked to the broader dynamics of the ‘conflict’. But unless we understand these dynamics how can we hope to change them? Indeed there's a sense in which legal criticism in this respect is a sort of (to coin an Adornian phrase) pseudo-activity, which lets us feel better (and genuinely does achieve something albeit something quite small) without addressing the more important, difficult issues.

[In my head - a week ago - this came out a lot better, but it makes a few ok points, so I'll let it exist]