Miloš Hrnjaz (Memo)

What is international (humanitarian) law for? Is international law part of the solution to the conflict in Israel/Palestine or is it an obstacle? Is the Genocide convention the best legal perspective on the war in Gaza? What is the jurisprudence on non-state actors in ‘international’ conflicts? How does international law regulate or how should it regulate asymmetrical conflicts between state and non-state actors?

As professors of International Humanitarian Law (IHL), we usually confront our students at the beginning of the IHL course with several definitions of IHL including the ICRC’s definition: 

“International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”

There is nothing wrong with this and similar IHL definitions. It is completely true. But, it is not the complete truth. First, IHL textbooks usually note that IHL (at least on the conduct of hostilities) compromises principles of humanity and military necessity. Throughout the history of IHL, the relationship between them has changed. The latest phase of IHL development has been marked by the ‘humanisation of law’ process, but the price could be paid with even more questions about IHL implementation. Second, the principle of humanity and the process of humanisation of IHL are under heavy fire from various theoretical approaches: legal realists, critical legal scholars, feminist legal theorists and Marxist theorists of law. After all, the memo question “What is international (humanitarian) law for?” is associated with M. Koskenniemi’s text in which he criticises abstract calls for humanisation and humanity and their use to label one’s political adversary as an enemy of humanity to justify extreme measures against him. I believe that all those people protected by the IHL and ICRC in contemporary armed conflicts would provide those critics with some answers why IHL is crucial (even though M. Koskenniemi would probably reply with remarks of false promises of the road ‘into pragmatism’). Finally, IHL is not used only for limiting the effects of armed conflicts and protection of certain categories of persons. It is also (mis)used for legitimisation of interests of various actors of armed conflict. Many people raised concerns over this fact, but for IHL the silence is far more dangerous since some of the actors in contemporary armed conflicts don’t bother arguing their actions using the IHL vocabulary. 

Is international law part of the solution to the conflict in Israel/Palestine or is it an obstacle?

On the one hand, Public International Law sets relatively clear instructions regarding the solution of the conflict. It provides Palestinian people with the right of self-determination, including the creation of their state (for those who argue that Palestine is not a state). It is clear what territories belong to Palestine under international law. In addition, international law is flexible enough since any agreement between two sides in the conflict that doesn’t violate ius cogens norms would be acceptable. One could of course argue that these solutions could endanger Israel’s security and that in this sense international law is an obstacle to the solution. However, Israel’s security concerns could be valid and Israel has the right to protect itself, but only within the framework of international law. 

Is the Genocide Convention the best legal perspective on the war in Gaza?

Sometimes the question isn’t what is the best legal perspective, but what legal instruments are available to states having in mind the question of jurisdiction of international judicial mechanisms. Various international instruments should be used, but the Convention is important in this regard. When one speaks about the implementation of the Convention regarding the conflict in Gaza, it usually speaks about committing the crime of genocide. But, the Convention is much more complex than that. For example, there are also obligations of prevention and the prohibition of direct and public incitement to commit genocide. This is crucial and has legal consequences for other states, not just Israel. 

I don’t want to behave like a court in this memo and argue without doubt whatsoever that genocide is committed in Gaza, but I would like to state several important facts. First, there are grave accusations and strong evidence against Israel regarding alleged genocide in Gaza and I will follow with great interest the continuation of the process before ICJ. Second, I believe these accusations are more persuasive today than several months ago. Finally, the question of whether the crime of genocide is committed in Gaza is relevant, but there is no doubt that other crimes have been committed in Gaza and in other occupied territories. I will follow the work of ICC in that regard since ICJ has jurisdiction only for the crime of genocide. 

What is the jurisprudence on non-state actors in ‘international’ conflicts?

I believe that the conflict in Gaza is an international armed conflict. But, even if one classifies the conflict in Gaza as non-international, Hamas would still be obliged by IHL norms. That is not the issue. The issue is the implementation of IHL norms by (radical) non-state actors. There are many books, articles and conducted field works on this issue now. I need to underline, however, that the precondition for implementation of IHL norms is that parties to the conflict (state and non-state actors) have ‘rational’ goals – to military defeat the other party in the armed conflict. If the goal is to ‘destroy the enemy’ then it is impossible to expect the implementation of IHL norms.

How does international law regulate or how should it regulate asymmetrical conflicts between state and non-state actors?

International Humanitarian Law already regulates all armed conflicts, including the asymmetrical ones. Formally, there is a rule of strict separation between ius ad bellum and ius in bello norms – the fact who started the conflict and why doesn’t affect implementation of IHL norms. In the same time, the power of adversaries is formally irrelevant for the implementation of IHL norms. On the other hand, issues of ius ad bellum and asymmetry of power of parties in the conflict do influence IHL implementation in various ways. On the one hand, IHL states victims of aggression do have the tendency to argue that they are victims in the conflict and that their violations of IHL couldn’t be evaluated in the same manner as violations of IHL norms of aggressors. In addition, the armed conflict in Ukraine and the example of (in)famous report of Amnesty International is an illustration of the fact that there is sometimes a tendency to hide or minimise the violations of IHL of victims of aggression. 

In the cases of clear asymmetry of power, the military weaker party (non-state or even state) in armed conflict sometimes uses this fact to argue that it is unrealistic or even immoral to expect the same implementation of IHL norms from both parties. In practice, that could mean various things such as placing military objectives in the proximity of the civilian population or civilian objects, the use of ‘human shields’, etc. It is important, however, that even though these practices are illegal, that doesn’t release the other party in the armed conflict from its IHL obligations (respect of principles of distinction, proportionality, precaution measures, etc.).

Still, I want to stress that IHL is not an isolated island. The structural injustices in the world and the culture of militarism do influence the implementation of IHL norms. It is, therefore, important to remind states on their obligations regarding the prohibition of the threat and use of force in international relations. At the same time, extreme conditions in which many people in the world barely survive will have extremely negative consequences on the implementation of the IHL norms and this can’t be changed by IHL or even Public International Law. That is a sphere of politics.