Gaza And The Law
What can lawyers do about the killing and maiming of men, women and children in Gaza? The implications of international law and the law of war in the context of the Gaza tragedy have been repeatedly raised in the United Nations during the current conflict.
The view of academics is that international law is neither a myth on the one hand, nor a panacea on the other, but just one institution among other which we can use for the building of a better international order. Further, international law has no alternative “but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose”.
The cornerstone of the UN Charter system is Article 2 (4) of the Charter, which states, in summary, that all memebers shall refrain from the threat or use of force agianst the territorial integrity or political independence of any state. This is modified by Article 51 which states tat nothing in the Charter shall impair the right of self-defence if an armed attack occurs against a member.
The law of war forms a branch of legal discipline in its owns right. It comprises a large number of international treaties and has developed into a massive and complex area of law. The law of war includes the following:
Rules for the protection of civilians
Control of types of weapons
The treatment of prisoners.
The reality seems to be that law has little or no relevance to the current position. Where an innocent child, of whatever nationality, is killed or injured, the legal issues are at best marginal and at worst of no significance whatsoever.
Without minimising the horrors of the current conflict, parallels can be drawn with the housing crisis in the United Kingdom. My argument is that a housing shortage is not a legal issue. It is a housing issue which can be solved by increasing the housing stock, which means that there must be the political will to build houses.
Another example is poverty, which can be seen, mistakenly, by some lawyers as a legal issue, is not so. The unequal distribution of wealth, an increasing global phenomenon, can only be resolved by political action, with law as a subsidiary and marginally relevant factor.
Similarly, regional wars cannot be ended by lawyers, but by negotiators. The law may become relevant after the conflict has been resolved, when war criminals may be prosecuted, but in the words of Thomas Foley, appointed in 2003 as head of private sector development in Iraq:I don’t give a shit about international law.