After the battle in Gaza
After the battle in Gaza, TV news and news agencies websites were filled with interviews and reviews on possibility of bringing a case against Israel for its militants war crimes, for instance through ICC mechanism. Recently, Julian Ku made a post on Opinio Juris website under the name Asymmetric Legal Enforcement in Gaza; in that writing, Ku correctly cleared out that there would be no chance to prosecute any possible crimes under the current legal order of the ICC, and that such possible violations have to be charged through the domestic judicial systems of the conflicting parties; since Hamas does not welcome any accusation against its members for their probable war crimes, and since Israel is a government with transparent judicial system, because of this asymmetric bureaucratic difference «it is almost certainly true that Israelis actually face the possibility of legal punishment, whereas it seems fairly clear that no Palestinan does».
Letting aside the truthfulness of such a plea, I would like to use this opportunity to develop my perspective from a different angel to the problem of Gaza that stays still.
Whilst international law does not allow seizure of territory by use of (military) force, and it is one of the reasons that international law has its current stability, yet Israel has shown its reckless disrespect for this rule, and threat and use of military force has become a pivotal instrument to serve ends of that state’s foreign policy. In writer’s view, if there is any sort of asymmetric legal enforcement in Gaza, in the first place, it is due to continuance of occupation of Palestinian territory and keeping a vast amount of population under the siege in Gaza by Israel.
Of course writer of these lines does not intend to defend brutal and inhuman policy of attacking civilians by any of the parties to the conflict; Israel clearly uses Israeli population to stabilize its control over the occupied region (which is vividly against jus post bellum and the responsibility of occupying power), and it has been claimed that Hamas uses human shield; regarding the situation with Israel, words fallen short to describe Israel government’s disrespect of international rules, but as this written piece is concerned about the other party, if being a National Liberation Movement has any meaning at all, it has to be bloomed in the peaceful manner of the movement and its methods of endeavor.
Here I have a question to put forth for all the readers, (probably including some of the professors that I know): International law, for recognition of internal insurgency used to deem the respect for laws on the battle-field as a necessary element;
Is this sine qua non for an armed group to respect Humanitarian law and Jus in Bellum to be recognized as a National Liberation Movement?(of course no matter the answer to this question is, that would have no effect on Israel obligations for congruence with IHL)
If any international consensus exists on the mere problem of formation of a Palestinian state, it has to come true in the first step, to dry out roots of violence in the future and then to prosecute offenders of the both sides; as far as I can remember the UN Security Council is the responsible and principal organ for such a mandate. Establishment of and independent, international commission of inquiry has been deemed essential in this respect by Human Rights Watch.
Irony is: what Israel has been a barrier for, that is, formation of the State of Palestine, now has become a barrier for countering Palestinians engaged in targeting Israeli civilians through international organizations; the Human Rights Council therefore has omitted Palestinian side from the inquiry.
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