This is an updated text of a blog first published on 25 October. It covers important developments since then. The views expressed are solely those of the author
The current state of play
The US Secretary of State has called (24 October at the Security Council ) for a pause in hostilities to enable humanitarian aid to reach innocent Palestinian civilians. He is right.
The UN Secretary-General was also right to warn all combatants to observe the rules of International Humanitarian Law ( IHL).
Hamas’ wicked actions are in plain breach of those rules. Hamas intended to harm individuals and its hostage-taking is a clear and grievous breach of the Geneva Conventions and of the International Criminal Court Statute.
Israel’s actions raise serious questions of legality. Why? For example, they have in effect required innocent civilians (including children and hospital patients) to move to south Gaza where there is no (or no sufficient) food, water or fuel for civilians.
It is, in my view, probable that this kind of forcible displacement is a reckless act which contravenes the rules of customary IHL. Israel would argue that its actions were necessary to protect the safety and security of civilians. But how are children and sick hospital patients to move in a time of war? In any event, there is still a duty to protect displaced civilians so that they have access to essential humanitarian services in the south. That has not happened. As for protecting civilians from harm, there is evidence that Israel has attacked the South after requiring civilians to move there.
Ultimately the courts will have to rule. But neither Israel nor the USA are states parties to the ICC Statute. The state of Palestine is a state party although some other states parties reject their accession.
The Merchant of Venice
It is said that Jews, Muslims and Christians lived together in comparative harmony in Toledo in mediaeval times.
Subsequently, however, Shakespeare’s Merchant of Venice reflected a time of virulent anti-semitism in many other parts of Europe. In the play, Shylock (whom I once proudly played at school) was regarded as a villain simply because he was a Jew. He expressly wanted revenge and tried to enforce a usurious debt against Antonio. But Shylock was outwitted by Portia, disguised as a lawyer .
The play ends in redemption. Portia’s words of mercy towards Shylock (Act 4: scene 1) were: “ the quality of mercy is not strained./It droppeth as the gentle rain from heaven/Upon the place beneath. It is twice blessed :/ It blesseth him that gives and him that takes.”
Notwithstanding the grievous harm done by Hamas’s attack on innocent civilians, it is time for Israel to show mercy. As the US Secretary of Defence has said, this is a time for Israeli resolve, not Israeli revenge.
The UN General Assembly resolution
The UN General Assembly resolution of 27 October proposed by Jordan on the Israel/ Hamas war and on the plight of Palestinian civilians called for an “immediate, durable and sustained humanitarian truce leading to a cessation of hostilities”. It called on all parties to immediately and fully comply with International Humanitarian Law. It called for the protection of civilians (persons hors de combat) and humanitarian personnel and called for humanitarian access to essential supplies and services. It also called for the unconditional release of all civilians being illegally held captive.
An amendment proposed by Canada which would have rejected and condemned Hamas’ terrorist attacks did not pass.
Thus Israel and the USA were given an opportunity to save disproportionate numbers of civilian casualties and to open a lifeline for innocent civilians. They opposed the resolution. Spain and France supported the resolution. The UK regrettably abstained because it appears, the Hamas attacks had not been identified in the resolution and condemned.
As of 31 October, while civilian casualty numbers of over 8,000 Palestinians are disputed by Israel, 63 UNRWA staff had been killed as a result of Israeli bombardment. In military jargon, it is recognised that war brings collateral damage (that is, civilians will inevitably die). But were the UNRWA killings a result of the proportionate use of lethal force?
To summarise, Israel has the right of self-defence, including the use of lethal force provided that international norms are respected. Unfortunately, Israel’s Defence Minister (9 October), having called Hamas militants human animals, went on to call for further oppression of all Gaza citizens: “We are imposing a complete siege on Gaza. There will be no food, no water, no fuel. Everything will be closed”. One reasonable inference is that Israel is now acting in revenge and retribution.
My view is that Israel’s right of self-defence does not extend to revenge and retribution against innocent Palestinian civilians through disproportionate use of force and through forcible displacement of civilians to an area which does have the capacity to support them and which, moreover, appears itself to have been attacked.
Christopher Muttukumaru CB DL
Member of the International Academic Council and a Bencher of Gray’s Inn, London.
While Deputy Legal Adviser to the UK Ministry of Defence (1996-98), Christopher was a senior member of the UK diplomatic delegation which negotiated the establishment of the International Criminal Court