Law and War
 
 
 



The whole idea of law having anything to do with war is a relatively recent concept. In times past it it was normal to obtain a blessing for the smiting of the enemy from whoever happened to be the highest religious authority. The blessing didnít attempt to limit the damage which could be inflicted. On the contrary, it gave the dual advantage of encouragement to the troops and the possibility of lining up reluctant allies to be on your side in what was likely to be a very bloody conflict.

In biblical times, we know that God, or at least his spokesmen, demanded the foulest of actions to be carried out in his name, including rape, killing of all the men, including male children and the enslavement of the rest Ė or on some occasions, just the slaughter of everyone. Good times! Sometimes, it was because the Ďenemyí got in the way of the taking of the promised land of Israel and sometimes it was that and because they had other gods.

But revenge as justification for violence was quite normal. From the days of the code of Hammurabi, an eye for an eye and a tooth for a tooth was the basis for the legal code. It reflected how people believed life should be lived.

We now have the state imposing justice via our admittedly imperfect legal system, a system which has however removed from the individual the right to seek retribution, even if itís difficult to enforce amongst mafia-style law-breakers.

And itís even more difficult to apply as between individual states where there is no over-arching authority which can take control. We have the law relating to war-crimes, but it is a law which is very difficult to enforce.

A former Director of Public Prosecutions, Lord Macdonald KC and another leading KC, Lord Pannick, have added to the debate in the letters column of the Times. They say:

Sir, Just as war attracts armchair generals, so it attracts lawyers who find violations of international law from the safety of their chambers without regard to basic legal principles of self-defence. As a distinguished judge once explained, criminal law understands that if people, in moments of unexpected anguish, do only what they instinctively believe is necessary to protect themselves from harm, this is the best evidence a jury can have that they are acting in lawful self-defence. What stands for people stands also for nations. When a state faces a threat, it may lawfully take all reasonable steps to protect itself. What is reasonable must be judged against the severity of the threatened outcome which, in Israelís case, would be violent extinction. Hamas has signalled its intention to destroy Israel and all Jews living within her borders. As we have seen in the past, leaders who make existential threats against Jewish people should be taken at their word.
Easy allegations that Israel is committing war crimes in Gaza are typically made without reference to this horrifying context. All self-defence is violent; that is its point. The real question is whether the party carrying out this violence has any plausible alternative in the face of an enemy bent upon its genocidal destruction.
The front cover of Private Eye this week was not the usual cartoon, but a statement suggesting that an over-reaction to the Hamas atrocity would not necessarily be a good long-term solution to the problems of the region. Now I would not dispute the definition of self-defence given by the two learned Lords, but I would suggest that it may not be entirely to the point, if that self-defence leads to an even worse situation.

Self-defence is in fact normally pleaded where someone was being attacked and had to respond in the moment in order to protect himself. The Israeli response so far looks more like a cry of rage, an understandable initial wish to take revenge, and then to plan more revenge, rather than to engage in self-defence. The Israelis would argue though that the only effective form of defence is to kill all of the members of Hamas and destroy its infrastructure. And that infrastructure is mainly to be found in the tunnels lying under Gaza, tunnels which enable its fighters to move around without detection.

This is in fact an echo of the same tactic used by Jewish rebels in Judea when waging guerrilla warfare against the Roman Empire during the Bar Kokhba revolt (132Ė136 AD), a revolt which, incidentally, resulted in total Jewish defeat. Hamasís modern equivalents contain armaments, including rockets, sleeping quarters, medical facilities and who knows what else. They have been constructed over the decades that the Palestinians have been confined in Gaza because of the refusal of either side to move forward with the so-called Ďtwo state solutioní. The destruction of the tunnels and that of the city above it are inextricably linked. Whether Hamas itself will be destroyed though is very doubtful.

Ignoring the stated aim of the destruction of Israel by Hamas, Palestinians in Gaza say that they regard themselves, some 2 million of them, as having been held hostage by Israel for decades. In this way they justify Hamas going on their killing spree and taking Israeli hostages. Iím afraid that these things only have to be stated in order to see how intractable the situation is and will remain Ė regardless of the niceties of international law.

At its root, there was the attempt to create the state of Israel after the Holocaust. It doesnít take a genius to work out that trying to do impose a new state where other people already live will be unpopular. Itís what we would normally call an invasion. And so itís unsurprising that there has been resistance from the people displaced, whose rights have been trampled on by fundamentalist Jewish settlers.

Itís possible to argue, as Zionists do, that although the Israelites left their land almost 2000 years ago, they are still its rightful owners. Itís also possible to say that 2000 years is far too long to maintain a right to reclaim ownership. English law generally works on 12 years as the limitation period.

Since they left Israel, the Jews have, of course, been a persecuted people, blamed by Christians for being complicit in Christís Ďmurderí. As I have remarked before, it is an irony that the strongest non-Jewish support for the establishment of the state of Israel comes from the evangelical wing of the American protestant churches.

That support is directed at the fulfilment of the conditions for the last times, Armageddon. So we find the Christians in America asking not for an end to violence, but that it should be intensified so that we may then see the Second Coming of Christ who will take his followers with him to heaven, leaving the rest, including the Jews, to suffer and burn in Hell. Thatís fundamentalist Christian love for you.

And now the whole debate is affecting politics nearer home. Sir Starmer, having apparently cleared his party of anti-Semitism,  made some rather ill-advised comments about the reaction of the Israelis to the Hamas atrocity. He was asked if it justified cutting off the people in Gaza from food, water, medicine and electricity. And to the non-lawyer listening to his response he said Ďyesí.

Of course he qualified what he said by calling on them to abide by international law, but thatís a meaningless qualification to most people, including those in about 30 Labour constituencies where a substantial proportion of his supporters are Moslem. A number of Councillors have resigned and town and City Councils could find themselves under new leadership. And this, just after the Labour Partyís triumphs in the latest bye-elections.

Meanwhile in France, the left-wing coalition has fallen apart because their Jeremy Corbyn equivalent has been loud in his lack of condemnation of Hamas. Very strangely, Mme Le Pen, who has always
been hostile towards the Muslim community in the banlieue, is now seen, by implication, as an important defender of the rights of the Jews. This has seen her popularity overtake that of M Macron, and has left M Mťlanchon and the rest of the left in the dust. And now, by a large proportion of the electors, she is no longer even seen as far-right!

Where will all this lead? ...I have absolutely no idea.

Paul Buckingham


24 October 2023



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