16/01/2009

Matter of law

While the fights continue in Gaza, a confrontation between principles of law is now taking place: the right to self- defence, on which relies Israel, as an answer to the firing of rockets from Hamas and international humanitarian law, invoked by worldwide associations, NGOs and international institutions seeking an end to the fighting.

To justify its offensive, Israel relies on the article 51 of the UN Charter which provides that « Nothing in the present Charter shall impair the inherent right to self defence, individual or collective, when a member of the United Nations is the victim of an armed aggression (…) « . However, it seems useful to recall that if this right is recognized, it is only under certain explicit conditions since the article continues by saying that this self-defence can take place « (…) until the Security Council has taken measures that are necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not affect the power and duty of the Council, under the present Charter, to act at any time in any manner it deems necessary to maintain or restore international peace and security.” Therefore, the right to self-defence is a right that can not be taken unless the operation of defence is led « hand in hand” with the Security Council.

Meanwhile, the opponents of the IDF offensive invoke the international humanitarian law to request the end of the Israeli operation. Humanitarian law includes what are called the « Geneva treaties” drafted under the auspices of the ICRC in order to protect victims, « The Hague treaties » concerning the control of the war means and methods used and the UN action to ensure that human rights are respected in case of armed conflict. However, for many specialists, this right is widely violated by the Hebrew State, since Israel does not respect the duty of proportionality of the response to a military attack, does not provide the population of Gaza with enough food and material to fulfil the population’s basic needs, does not allow proper delivery of humanitarian aid, in addition to numerous casualties among the civilian population and its goods.
Moreover, as underlined by Human Rights Watch, the « collective punishment » Israel imposes to a whole civilian population in response to the actions of a group is absolutely contrary to international law.

Two concepts theorized by Carl Schmitt and Michael Walzer are opposing: the right to lead a war that seems justified as response to an attack (jus ad bellum) and the right in the war, as the management of the practices of war and the treatment of civilians (jus in bello). But the theory of right to war emphasizes the duty of proportionality of the defensive war towards the previous attack and the distinction between civilians and military aggressors must be made. Therefore, this concept of « just war » on which Israel relies, would only be partially followed by the latter; no matter if we consider the Article 51 of the UN Charter or political theory.

This theory of « just war » surrendered to the agenda by the neo-conservatives in the last years goes against the legal landscape that has spread in the post WWII world. In a world governed by laws, where international institutions are the only guarantors of the respect of the rights of the States, where military interventions are decided on a multilateral basis with objectives of peace in the short term and protection of the civilians, the right to “just war” is simply a negation of Law.

The military option is today, according to international laws, the last chance option. Moreover, it is nowadays decried in cases of terrorism or guerrilla warfare against which intelligence services and police operations are more adapted and efficient.

If Israel gives itself the right to lead a unilateral « just war », questioning as a consequence the prevailing international order, as the Bush administration previously did, let’s hope that the Obama administration will somewhat be more respectful of international law.

Luce Ricard