The complicity of America in the collapse of international law

In this first of a two-part series, ANWAR ALBERTUS argues how the US and its western allies undermine the principles of equality, justice and the rule of law by their unconditional support for Israel’s policies on Palestine.

THE Gaza Strip is a narrow piece of land ensconced between the Mediterranean Sea and Israel. It is populated by approximately 2.4 million Palestinians. It has properly been called the only open-air prison in the world because, for the last 17 years, it has been blockaded by land, sea and air by Israel after the expulsion of Hamas, who was overwhelmingly voted in by the people of Gaza as their government.

This piece of land, Gaza, has been subjected to an intensive bombing campaign by Israel over the last three weeks under the pretext of self-defence, following the attack on October 7, 2023, by Hamas against Israel.

Although the current hostilities against the Palestinians can be said to be an extension of a pattern of conduct on the part of Israel over the last 75 years, the bombing has assumed an unprecedented magnitude.

Over the last three weeks, more than 7,000 Palestinians have been killed, and many thousands injured, with approximately one million displaced from their homes. While Israel maintains that its military operations in Gaza are aimed at Hamas, there is little doubt that its bombing campaign is being carried out without any regard for civilian infrastructure and casualties.

In this regard, it is actively supported by the US and its western allies, including the United Kingdom, France, the Netherlands, Germany and Australia. By providing financial and military support to Israel the US and its allies have undermined the rule of law and allowed Israel to apply the law of the jungle.

Consequently, the US and its allies can all arguably be considered complicit, along with Israel, in committing war crimes, crimes against humanity and engaging in collective punishment against the Palestinian people.

It may well be asked, what is the rule of law and why is it important? In its simplest form, it is the principle that no person is above the law. Everyone is accountable to the law.

This principle applies at both the national and international levels, and it serves as a bulwark against lawlessness, barbarism, and rogue behaviour. It is designed to protect the defenceless. Even at the municipal level, there are courts of law and law enforcement agencies to ensure that the law is impartially enforced.

At the international level, one would look to international institutions such as the United Nations General Assembly, the Security Council (whose Resolutions have a coercive effect), the International Court of Justice (the ICJ), NATO, and the major powers, especially the US, for support of the rule of law. In the case of Gaza, the rule of law has been sorely tested, and due to the machinations of the US and its allies, it has been completely corroded.

Space does not allow for a full argument on the collapse of the rule of law, but it is hoped that the following will suffice and also serve as a basis for any criminal indictment of the leaders and military personnel of Israel, the US, and its allies.

The Fourth Geneva Convention of 1949, which constitutes a significant part of International Humanitarian Law, provides a body of rules for the protection of civilians.

These rules include the right of respect for the person and religious practices, the prohibition of torture and other cruel, inhumane or degrading treatment, hostage-taking, reprisals, intimidation and collective punishment in conflict zones.

The wounded and sick are entitled to specific protection and respect, and the destruction of property is prohibited except when absolutely necessary for military operations.

Additionally, any attempt by the occupying power to annex the territory or change its status shall not affect the application of the Convention.

Israel’s argument that the Convention does not apply to the West Bank and Gaza, based on the claim that Jordan and Egypt respectively had no valid claim to these territories prior to the 1967 conflict, was rejected by the ICJ in its advisory opinion in 2004 on ‘the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories.’

Two basic principles of Protocol 1 to the aforementioned Convention regulate the question of who may be targeted and what may be attacked in the conduct of hostilities.

These principles are (1) the principle of distinction and (2) the principle of proportionality.

The principle of distinction provides that the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

The principle of proportionality requires that even military objectives may not be attacked if an attack is likely to cause civilian casualties or damage that would be excessive or disproportionate in relation to the concrete or direct military advantage that the attack is expected to produce.

The above principles impose significant obligations on state entities and anyone who orders an attack. They are required to weigh the potential civilian casualties and damage to civilian property against the evident and direct military advantage anticipated from the attack.

As we will observe, these principles, which constitute the foundation of International Humanitarian Law, have been flagrantly violated by Israel with the support of the US and its allies.

Unfortunately, the rule of law in the international sphere, encompassing International Law, International Human Rights Law, International Humanitarian Law, International Instruments such as Conventions and their Protocols, Resolutions of the General Assembly of the United Nations, and the Security Council, as well as judgments in the form of opinions from the ICJ, cannot, by its very nature, operate independently of the global political environment.

This is where the problem arises. For over a century now, the US has perceived itself as exceptional, considering itself a unique and morally superior country due to historical, ideological or religious reasons.

Proponents of American exceptionalism often associate this belief with the notion that the US has a special obligation to fulfil in global politics.

This distortion has resulted in the US perceiving itself as exempt from the legal frameworks that apply to other countries, to create a safer and more predictable world. This notion of exceptionalism has been expanded to justify the refusal of the US to subject itself to the jurisdiction of the International Criminal Court, but expecting and insisting that others do so.

Over the past 75 years, the US and its eestern allies, driven by their geopolitical agendas and foreign policies, have consistently extended this notion of exceptionalism to Israel, despite the numerous and varied abuses committed against the Palestinian people.

Although not expressly articulated, this notion irrationally implies that Israel is superior in some way, whether historically, theologically, ethnically or otherwise, to the Palestinians.

This, in turn, feeds into the further irrational belief on the part of Israel that it can act without any constraint in relation to the Palestinians and that, in doing so, it will be supported and protected by the US and its western allies.

Click here for part two.

• MA ALBERTUS SC, is a practising member of the Cape Bar, former Chairperson of the Cape Bar and former Visiting Professor in Comparative Law at the Levine College of Law, University of Florida.