War crimes in Gaza? Let’s look closer to home

By Phil Shiner |

As reported this week, there are repeated calls for the UK and the international community to condemn Israel’s disproportionate and, therefore, illegal attacks on the civilian population of Gaza. At the same time, David Miliband urges an effective immediate ceasefire while repeatedly emphasising that the “attacks” from Hamas – which he talks about first – and the “military action” by Israel must stop. So far, this diplomatic language has been completely ineffective: the Israeli assault on Gaza continues unabated. However, if the UK and other EU states in particular, had complied with their international obligations, as clearly set out in the advisory opinion of the international court of justice in July 2004, this crisis could have been nipped in the bud at the outset (as could Israel’s bombardment of Lebanon and Gaza in August 2006).

The ICJ’s opinion on the wall could not be clearer. It identifies 11 international obligations breached by Israel by the construction of the wall and the maintenance of the system flowing from it of gates, permits, and illegal settlements on Palestinian land. These included non-derogable rules on the Palestinian right to self-determination and the prohibition on the acquisition of land by force. The ICJ then identify seven separate obligations for other states – in the context of these non-derogable rules – that include two negative obligations that states must not: one, render aid or assistance in maintaining the situation; and, two, recognise the illegal situation. Negative obligations have a lower threshold than positive ones and the burden on the UK and other EU states to meet these negative international obligations from July 2004 has been a high one.

It is noteworthy that the UK, as one such state, has done nothing effective to meet these obligations, and has, in fact, increased its aid and assistance in Israel since the ICJ’s opinion. These are some examples of its positive encouragement of Israel’s actions in the occupied Palestinian territories since July 2004:

• It has massively increased the value of arms-related products licensed to Israel in recent times (a doubling from 2004 to 2005 and a huge increase again with £20m approved in the first quarter of 2008);
• It has resisted all attempts by campaigners that it should apply effective pressure within the EU that the EU-Israel association agreement – of great importance to Israel’s trading figures – should be suspended as the human rights obligations underpinning it have been breached;
• It has continued to invite Israel’s arms companies to exhibit at the biannual Docklands arms fair;
• It has continued to propagate the myth that the Quartet’s roadmap process is the answer to the humanitarian crisis in the OPTs, which has allowed it to resist any positive action.

The UK has breached its international obligations – so clearly set out in the ICJ’s opinion – as have all the other EU states. Real effective pressure could have been applied by these states from July 2004 onwards. There is no doubt that Israel’s trading figures are heavily reliant on the positive agreement with the EU, and that arms-related products from the UK and other EU states are clearly implicated in attacks on civilians from 2004 onwards. This newspaper, for instance, carried an article in July 2006 that identified all the different UK components in an Apache helicopter, and we all know the role played by these aircraft in the present crisis. Handwringing pleas that both sides should enter into a binding ceasefire agreement have had no effect. However, if the UK and other EU states had ceased some, if not all, of their trading activities since 2004, even if only temporarily to make the point, the hand of the international community at the outset of this crisis could have been strong and effective. Israel could have been told it must immediately cease all attacks on civilians in Gaza on pain of:

• An immediate suspension of the EU-Israel association agreement and other trading and arms related activities with EU states;
• A security council resolution under chapter VII of the UN charter obliging all states to follow this lead.

However, once again, the UK government shows that it is willing to publicly flout international law, if the rule of law gets in the way of its political objectives.