The unholy convergence of international law, genocide and geopolitics

Foundationally, international law aims to govern relations between nations and is encapsulated in binding and non-binding bilateral, trilateral and multilateral agreements, pacts and treaties; it extends to UNSC resolutions on maintenance of global peace and security.

International law therefore gives effect to the Latin maxim ubi societas ibi jus, where there is society, there is law. International law bifurcates viz: jus gentium, which is the agreed set of laws regulating relations between countries; and jus inter gentes, which is narrowly focused on compacts and treaties executed between two or more countries. The inference therefore is that international law presupposes the consent of the parties to the extent that it is non-binding on a state which has not consented to it.

However, that proposition perforce, accommodates important caveats and exemptions within, for instance, binding resolutions of Chapter VII United Nations Security Council (UNSC). Article 42 of the UN Charter illustratively establishes that the Security Council “may take such action by air, sea, or land forces as maybe necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations.” Article 51 establishes inter alia that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member State of the United Nations…”

So, Chapter VII UNSC resolutions and international rules which interdict aggression, genocide, maritime piracy, slavery, territorial aggrandizement, torture are an overriding aspect of international law which are not consent-based and are therefore jus cogens.

Here’s the rider; international law does not exist in vacuo. On one hand, it provides a legitimate basis for global collaboration on wide-ranging issues including arbitration, arms reduction, artificial intelligence, ESG, finance, humanitarian affairs, poverty alleviation, public health, SDGs, technology, trade etc.

On the other hand, it attempts to navigate the volatile prism of competing and oftentimes divergent geo-economic and geopolitical interests between world powers; tensions amongst and between superpowers, their allies, warring non-state actors and freedom fighters; terrorists seeking to advance virulent ideologies in contested and ungoverned spaces around the world; and genocidal conflicts.

Inevitably, international law is caught between the extremely complicated dilemma of regulating relations between states on a variety of themes and major wilful infractions of international law by superpowers, regional powers and others. Those major infractions in war situations can have genocidal consequences in extremis. Inescapably, that means the loss of very many lives, large scale destruction of property, displacements of hundreds of thousands and millions of people; perilous border crossings over land and high seas; the complex paradox of swathes of genuine asylum seekers fleeing persecution and war, but turned away at various borders or locked up in prisons or so-called asylum detention centres, et al. These are monumental issues not all which can be tackled in this piece.

Nevertheless, attention turns to the province of international humanitarian law (IHL) and genocide given its subject-matter relevance herein. IHL is a subset of international law which, as the name suggests, purely on humanitarian grounds, seeks to limit the effects of war on civilians and non-participants of warfare. By virtue of Article 38 (1) (c) of the Statute of the International Court of Justice 1945, the Court shall decide in accordance with international law such disputes as are submitted applying “the general principles of law recognized by civilised nations.” This provision implies that UN member states are civilised. But, are their actions necessarily civilized?

Situating these legal points within the context of the Israeli/ Palestinian Hamas ongoing war and is therefore highly relevant. Hostilities began on October 7, 2023 pursuant to the Palestinian Hamas attack on Israel, which killed approximately 1,200 people and resulted in the hostage taking of more than 250 Israeli nationals, of which approximately 112 were released following Middle-East led mediation efforts.

Just like Ukraine, which is lawfully resisting the war of aggression launched against its territory by Russia on February 24, 2022, Israel is doing likewise. And whilst relying upon its inherent right to self-defence, by extension invoking the provisions of Article 51 of the UN Charter; Israel responded and continues to respond with devastating force, which has so far killed over 33,000 Palestinians, internally displaced over 2 million people in Gaza (+75% of the local population), and leaving over 2.1 million people facing starvation and devastation of swathes of Gaza, according to the United Nations.

Powerful voices across the globe have argued for an immediate ceasefire, on humanitarian grounds, not least the UN Secretary General, Anthonio Guterres, and unequivocally condemned the killing of civilians by both Israelis and Palestinian Hamas fighters.

Palestinian/Hamas in turn contend that Israel wilfully and persistently violates international law via territorial aggrandizement, illegal settler expansion in Palestinian lands whilst enforcing de facto apartheid policies.

Worse, Palestinians and rights groups argue that the United States, notwithstanding the fact that it is Israel’s chief ally and weapons supplier, negates its heavy moral obligation to act as a demonstrably fair umpire in the crisis. They point to the fact that the United States vetoed important UNSC resolutions calling for an immediate humanitarian ceasefire on December 8, 2023 and February 20, 2024, despite preponderant world opinion within and outside the States, for it.

Equally, the United Security Council Resolution 446 of 1979 which passed with 12 votes, 3 abstentions and 0 against “determines that the policy and practices of Israel in establishing settlements in the Palestine and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.”

Israeli settler population in occupied territories was approximately 106,595 in 1983. As of 2023, the settler population in the West Bank and East Jerusalem was 700,000 an increase of 556.69% according to the UN Office of the High Commissioner, Human Rights (UNOHCHR). The latter further asserted in its March 2024 Report, State of Palestine: Israeli Settlements in Occupied Palestinian Territory, that “the establishment and continuing expansion of settlements in the Occupied Palestinian Territory and the occupied Syrian Golan amount to the transfer by Israel of its own civilian population into the territories that it occupies, which is strictly prohibited under international humanitarian law.

Such transfers amount to a war crime that may engage the individual criminal responsibility of those involved.” Patently, and objectively, this conundrum of illegal settlements is a major obstacle to lasting peace in the region.

Compounding the dynamic, and the global sense of injustice against innocent and defenceless Palestinians, was South Africa’s application against Israel alleging gross violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) relative to the Gaza strip, on December 29, 2023.

South Africa’s petition invoked the jurisdiction of the International Court of Justice (ICJ) to establish provisional measures to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”

The ICJ decided, inter alia, on January 26, 2024, by a majority of 16 votes to one dissenting opinion that Israel “shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza strip.” Plus, the head of the UNOCHR, Volker Turk, confirmed in a BBC discourse in March 2024, that there was a “plausible” case that Israel was using starvation was a weapon of war in Gaza.”

Again, Annelise Sheline, a former State Department staffer launched a withering attack on American foreign policy in Gaza in an Op-ed for CNN on March 28, 2024: “in the West Bank, armed settlers and Israeli soldiers have killed Palestinians, including US citizens. These actions, which experts on genocide have testified meet the crime of genocide, are conducted with the diplomatic and military support of the US government…99 Palestinian journalists have been killed in the last five months, according to the Committee to Protect Journalists.”

According to the BBC on April 2, 2024, Israeli air strikes killed seven persons working for the charity, World Central Kitchen in Gaza comprising Australian, Canadian, Palestinian, and U.S. citizens.

Concluding, all wars must, at some point, come to end ideally with negotiated, just and practical outcomes for all parties. Gaza is no exception! It won’t be easy, but then again, statesmanship demands leadership, diplomacy; political dynamism and sound judgement, hence, the following recommendations:

A re-committed and genuine diplomatic push by the United States which continues to wield vast leverage over Israel, its pivotal strategic Middle-East partner;

The United States, the largest arms exporter to Israel, cannot, morally, and rationally, justify increased arms sales to Israel, given that country’s disproportionate use of force on civilians and civilians targets in Gaza.

The immediate and concurrent release of all hostages held by Palestinian/Hamas, and Palestinian prisoners of war held by Israel. Without this seminal quid pro quo, the war will be exacerbated;

The pivotal case for a two state Israeli/Palestinian political solution, although imperfect, gives the most realistic opportunity for peace between the warring parties;

An immediate halt to, and dismantling of, Israeli settlements, which violate international law; and

UNSC approval for UN peace-keeping forces in Gaza to safeguard the civilian population and an ordered return of internally displaced persons to their homes. That will demonstrate balance, seriousness, and urgency.

International humanitarian law is at best enfeebled, and at worst, pointless, if it is routinely breached by any Member State of the United Nations. Sanctions for such breaches ought to be much tougher and this speaks to the moral credibility of veto-wielding permanent UNSC members. UNSC Resolution 2728 of March 25, 2024 which passed with 14 votes in favour with a US abstention, demanding an immediate ceasefire for the month of Ramadan, the immediate and unconditional release of hostages and “the urgent need to expand the flow” of aid into Gaza is therefore a positive first step.

Reasonably, that offers a pragmatic mechanism for effectively disentangling the unholy convergence of international law, genocide/war crimes claims, and duplicitous geopolitics; without sacrificing strategic national interests and security guarantees for all sides.

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.