International law is designed to govern the behaviour of states and individuals who act in the name of those states. Pragmatic and sometimes self-serving political agendas can undermine this intention or simply prevent the application of penalties that international law calls for.
In recent history, the development of attempts to establish an agreed framework of international laws can be traced from the original United Nations Charter of 1945, followed by the Universal Declaration of Human Rights of 1948. The intent of these documents can be simply expressed as an initiative to end war and human rights abuses by agreeing on principles of behaviour – essentially international laws – that would be supported and applied worldwide.
Achieving this in practice has proved difficult, if not impossible, and the reasons for this failure are examined below.
The role of international law in the context of global politics
Let us begin with an important statement from the past. On 14 June 1946, the US representative to the United Nations Atomic Energy Commission, Bernard Baruch, said: “We are here to make a choice between the quick and the dead… If we fail, then we have damned every man to be the slave of fear”. Looking at present-day realities, it would seem we have chosen destruction, rather than peace and the international rule of law.
While both international law and local or global political structures appear to have the same objectives, how these two are defined in practice is contradictory. The common goal is improved social relationships, brought about by universally agreed justice. Indeed, in the decades since World War II, international law has expanded to the point where political events cannot be seen outside of that context, as it covers essential definitions of sovereignty, statehood and the forces that are destructive, such as genocide. However, the definitions used in law and politics are different, according to national agendas, which very much affect their application.
Interactions between law and politics
Examples of this complex relationship include the international response to Iraq’s 1990 invasion of Kuwait which was a violation of sovereignty and an act of war. Against this can be weighed the US response to the attacks of 9/11, which depended heavily on a potentially extended definition of the right to use force in self-defence. It has to be admitted that the effectiveness of law depends on the threat of force. At the same time, politics has its own definitions of how that force can be acceptably applied but these definitions are often flexible, according to specific national agendas.
The Israeli-Palestinian conflict
The ongoing conflict in Palestine is a telling example of how international law and specific political decisions can contradict each other, as especially seen with Israeli settlement expansion and the treatment of children arrested and imprisoned.
Since the 1967 Six Day War, Israel has occupied Palestinian territory and conducted overt or covert ethnic cleansing in those areas. Some 250,000 Palestinians fled into Jordan but only some 7% of those were allowed to return. United Nations Security Council Resolution 242 stressed the right to return but was ignored by Israel. Here we see how ineffective a UN resolution can be.
A further Security Council Resolution 1544 advised Israel to respect the Fourth Geneva Convention and conduct its security activities within the confines of international law. Subsequent events since that 2004 resolution have proved Israel’s disregard for such agreements.
In 2011, a draft resolution was vetoed by the US which defined the new Israeli settlements in the occupied territories as illegal. This resolution would have seen a halt to settlement building but the veto prevented that.
This is not a small issue. A Guardian article of late 2011 stated as follows: “[there is] a creeping annexation that prevents the establishment of a contiguous and viable Palestinian state and undermines the right of the Palestinian people to self-determination.” The facts reported are alarming. “Six hundred and twenty thousand settlers [West Bank and East Jerusalem] cultivate 64,000 dunams of land. Four million Palestinians in the West Bank only cultivate 100,000 dunams.”
In January 2012, a UN report stated that Israeli settlements resulted in multiple abuses of Palestinian human rights and could result in a case being laid at the International Criminal Court. Article 49 of the Fourth Geneva Convention bans the transfer of civilians from an occupying power into occupied territories but Israel has ignored this, with massively negative consequences for Palestinians.
Alongside these actions, Israel arrests, without due legal process, some 700 Palestinian children every year, the majority charged with nothing more serious than throwing stones. Reports show that these children are then subject to torture, ill-treatment and interrogation. Key points here are that Israel applies questionable military law for Palestinians, unlike the usual civil law that applies for Israelis and, in any event, these are children, not adults. Israel applies the age of 16 in defining children to be sentenced, using provisions designed for adults – though reports show that many detainees are younger than that – while the UN convention specifies 18 as the age limit.
Children as young as nine have been detained and Israeli military law ignores international rules on human and child rights, imposing imprisonment for up to 90 days. Family visits are rarely granted and restrictions apply even on International Red Cross inspections. Under military law, Palestinians are convicted at a rate of 99.74%.
In a recent Guardian interview with Nadav Bigelman, an IDF soldier involved in arrests of civilians, stated: “There’s no intelligence on these people… We know they are innocent civilians” (Sherwood, 2013).
Article 46 of the Hague regulations of 1907 states that: “Family honour and rights, the lives of persons and private property must be respected. Private property cannot be confiscated”. However, reports show that this happens daily in the occupied territories.
Here we see the ineffectiveness of international law, especially when breaches of that law are supported by powerful nations.
The Israeli-American coalition
Israel’s disregard for international law could not be conducted without external support from the US. This raises a key question: is international law western-centric?
Events show that international law is applied when in the interests of the Western nations (Iraq and Syria being examples) but ignored when it might affect a key ally like Israel. While law in the West applies to citizens and typically adheres to international standards, how law is applied on other nations is aimed at forcing less powerful nations to accede to the West’s wishes.
This is well exemplified by vetoes from the US and aligned Western nations that obstruct resolutions supported by a majority of the rest of the world and international human rights organisations. This echoes the question asked by Bernard Baruch in 1946 – the choice between destruction and peace.
Another example was a 2012 UN resolution that upgraded the occupied Palestinian territories from “entity” to “non-member observer state”. In a BBC report in late 2012, Hillary Clinton, former US Secretary of State, categorised this as “unfortunate and counter-productive” while Israeli government spokesperson Mark Regev dismissed it completely.
Since the early 1970s, almost all US vetoes in the UN have been used to block resolutions against Israel. As the 2013 United Nations press release on the topic stated, Israel knew they had “the US veto in their pocket”, and there is no applicable international law to prevent excessive use of UN vetoes.
In some ways, the perhaps utopian visions of international law and organisations to enforce them have been qualified and reversed by self-interested political manoeuvres and the pragmatic realities of international politics.
International lawyers admit the limitations. The reality is international law is as much a source of conflict as it is a solution – seldom agreed unanimously. Separating law and politics is near impossible but failing to have these elements in harmony has disastrous results. It is time to recognise common humanity and a wish for peace, rather than destruction. We face the same choice as in 1946 and cannot allow the politics of the powerful to steer us to disaster.