I recently wrote about a letter from lawyers concerning the ICJ’s interim ruling on whether Israel were in breach of the Genocide Convention. In the discussion around that article, someone asked me:
“what ‘red line’ Israel would need to cross before we should stop arming them?”
My response was to note first that before we could stop arming Israel, we would have to start. This may seem like a technical point to some but it does affect how we approach the big questions. You see, the UK doesn’t arm Israel, not in the sense that some Western nations have been involved in directly arming Ukraine or indeed that there are players in the Middle East arming Hamas. Rather, what is at stake is that there are UK defence companies that sell equipment to Israel and those sales are subject to licensing regulations.
This is important because it means that the red lines for arms exports are already given, not just for Israel but for any nation. It is crucial that Israel is not treated differently to other nations. This means that we shouldn’t give Israel a free pass when we wouldn’t others and it also means that we shouldn’t place a harsher test on Israel than we would others.
Secondly, I wondered allowed if the question behind the question was whether or not I thought that Israel had already crossed red lines. Many people happen to believe that they have. The other person agreed that this was the underpinning question and went on to suggest that this also meant that the question did include:
“what should be the line that means we say no more arms exports to Israel? And how will we know when that’s been crossed?”
Now, in terms of that question, my response would be, exactly as the licensing questions make clear, that we should not export to countries where use of those weapons would be a breach of International Law, specifically where human rights are prejudiced and particularly in reference to genocide.
Indeed, I don’t believe that this question would generally be disputed. The real question is about whether or not Israel have crossed the line, if they have breached international law. This is important to set out because I do wonder if some people have assumed that the line of defence is that Israel should be excused breaches, whether some lines are seen as acceptable in their case. I don’t believe this to be the case and certainly it is not my position.
Which brings us to the crucial question. “How do we know if and when the line has been crossed.” My answer to that would be simple. It would be when the ICJ rules that it has been crossed. Along with such a ruling would come instructions on the remedies, what punishment Israel should face and what steps the UK and others should take to prevent further incursions on International Law.
Why do I say this? Isn’t the ICJ’s role to determine on legality rather than morality. Shouldn’t our concern be he latter rather than the former? The reason is that we cannot disconnect legality and morality. It is possible to talk in terms of things that are immoral but not illegal, that’s where the question of sin and personal morality come in. However, one of the roles of The Law is to determine public morality. In domestic law this means that we identify both criminal illegality and civil unlawfulness. This is determined through common law (custom and practice), legislation and case law.
In International Law, the boundaries of public morality are determined by the international community through treaties and conventions. Therefore we are able to identify recognised war crimes and we are able to define genocide through the Genocide Convention. We have an agreed criteria but we also have recognised a specific court as having competency and jurisdiction to rule on cases.
This means that it is possible for you or I to have a personal opinion on whether or not Israel is guilty of genocide. Personally, I may believe that they have, the primeminister and government may also believe that they have but if as a country we recognise the ICJ’s competency to adjudicate, then we are obligated to go with their ruling. And as I explained previously, whether or not we like it, the ICJ have not ruled that Israel have committed genocide, nor have they suggested that there is a risk or plausibility. It’s important that the Government recognise this to be the case. Indeed, it will be crucial, should the ICJ rule at a later date that Israel have not breached their responsibilities under the Convention that this is respected.
However, this works both ways. I might believe that Israel are not in any way culpable but if the ICJ rules that they are (and this may not just mean that Israel directly commits genocide but that it fails to prevent genocide to a level which leaves the state complicity) then the UK must recognise the ruling when it comes, whatever the Government’s view.
Indeed, I might consider the idea that a state seeking to deal with an actual genocidal entity embedded into urban populations should be suspected of genocide highly suspect. I might consider South Africa’s case vexatious, designed primarily for its own domestic population. Rish Sunak and the Government may take the same view. However, we need to recognise that the Court does consider South Africa’s case not to be vexatious. Their standing to bring it has been recognised. This in no way provides an indication of the likely outcome. But it does mean that governments have to function with that in mind. This means that they need to pay attention to what the case is and what the ICJ are instructing at the moment.
Faithroots 