The duality of international humanitarian

Jul 30, 2024

The duality of international humanitarian law against unipolarity

النسخة العربية

Saly Moussa

PhD student

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The duality of international humanitarian law against unipolarity - Saly Moussa

Just as victors leave their marks on the pages of war, they also leave their marks on its laws. When we thought we had gotten rid of colonialism, it traces a law aimed at humanizing war to create an embellished beautiful face for a new global dictatorship.

International humanitarian law has walked the path of Calvary in our countries, and reached Gaza, where it was crucified and buried under the rubble of the internationally protected objects. The humanitarian arena is currently in dire need to strengthen the regulatory and legal frameworks to confront the gross and blatant violations against humans, their civilian objects, and their cultural property.

Through all the events happening around the world, in particular the use of military force between states, we have noticed that great powers cite the rules of the international law, and ignore it when it becomes inconvenient. We have seen through the Western political discourse that accompanied the Russian war on Ukraine, a repetition of the concepts of international law and sovereignty, violation of international treaties and covenants, human rights, non-interference in the internal affairs of states and democracy, which constitute the principles and the concepts that do not hold such respect and such significance in the war of Gaza today.

Between the aggression against Gaza and unipolarity, how have these incidents affected the comprehensiveness and credibility of international humanitarian law?

The beginning of the twenty-first century have witnessed numerous radical transformations and changes in war concepts and theories, and adapting to the changes that have occurred, became one of the most prominent challenges facing the various future scenarios of the changing nature of warfare(1). Furthermore, cautious and confused response to the first signs of conflicts has allowed escalation into violence and slide into further chaos and further casualties (2) and the destruction of civilian and cultural property. In addition, the political impact on wars and their future has been a kind of thorny obstacle that hindered the establishment of effective civil-military relations to protect civilians, their civilian objects and their cultural property.

The Hague Conventions of 1899 and 1907 initially set forth the rules for the protection of civilian and cultural property in a very brief manner, but this protection was expanded and enshrined in a more decisive and clear manner after the adoption of the Geneva Conventions of 1949.

The practical failure to implement the rules on the reality of these objects in armed conflicts has urged the International Committee of the Red Cross to call for a greater protection, and accordingly the protection of these objects was reaffirmed, through the adoption of the two additional protocols of 1977. Therefore, the protection has been reinforced through the conclusion of special agreements on the protection of specific objects, including the Hague Convention of 1954 on the Protection of Cultural objects in times of Armed Conflict, then further agreements followed until the rules of international criminal law were established along with the adoption of the Statute of the International Criminal Court.

However, these rules remain worthless unless they are supported by mechanisms leading to their implementation, perhaps the most important of which are the punitive mechanisms represented by the necessity of resorting to international criminal justice to punish violators of the protection rules of these civilian and cultural objects.

The rules of international law are based on a main principle - among other principles - which is the prohibition of the use or threat of use of force against the territorial integrity or political independence of other states. This principle was acknowledged by the states enumerated in Article (24) of the United Nations Charter of 1945, considered as a peremptory norm in international law. There are only two exceptions to this principle, namely the right of self-defense (including collective defense), and the authority of the Security Council to authorize the use of force aimed to impose or restore international peace under Article (42) under Chapter VII of the United Nations Charter.

According to the Palestinian people, who suffer from occupation, they did not resort to the Security Council this time, and they have exercised the right to self-defense. In order to claim this right proactively in international law, the danger to the state must be genuine and imminent, there must be no alternative peaceful remedies to resolve the conflict, and its use must be proportionate to the actual or expected damage.

As it is known, the legal dilemma that hinders the use of force authorized by the Security Council arises from the fact that the United States, as a permanent member of the Security Council, holds the right to veto any resolution which necessitates the failure of any potential draft resolution due to its close association with Israel, despite the fact that Article 27 of the Charter stipulates that states abstain from using veto in matters of interest, and international custom subsequently disrupts it. The question arises again: Isn’t it time to reactivate Article 27 of the United Nations Charter as a step towards reforming the Security Council? (3)

While the Security Council fails to make decisions, the role of regional and specialized organizations can be more effective in such wars. We have witnessed examples of these examples such as the cessation of the membership of the Russian Federation to a number of these organizations, such as the Council of Europe and the Organization for Economic Co - operation and Development. Aggression is an international crime, according to the regulations of the International Criminal Court, which calls for international responsibility on individuals in their personal capacity, which may result in Israeli officials being held accountable for the crime of aggression at the end of their representative capacity. Here lies the gap that Netanyahu is exploiting in order to continue the war and maintain this capacity.

In accordance with this international legal and political reality, I believe that:

1- The rules of international law shall be implemented in all countries, whether small or large, without any discrimination. This might be achieved through the establishment of international supervisory institutions responsible for monitoring the implementation of the rules of international law, or through the International Court of Justice that will undertake this task.

2- Review all the mechanisms of the work of the United Nations, and its main bodies, in particular the Security Council, ensuring equality not discretion and double standards.

3- Member States of the United Nations shall amend the Charter of the organization, in particular the articles that include ambiguous phrases, which might be misinterpreted by the major countries, preceding political considerations over legal rules in order to get rid of the hegemony of the major countries over smaller countries.

In conclusion, the world has changed after the war and will never be the same again, notwithstanding how war will end, as Israel's relationship with the outside world will be different. Just as the two World Wars have played a crucial role in amending the rules of international law and dissolving the League of Nations at that time, we will be witnessing changes towards more effective alternatives. Just as the entity has emerged in the midst of transformations in the structure of the global system after two World Wars that led to the victory of America, Britain and France, the entity will deteriorate under the emergence of a new global governance system that has been in emergence and development since two decades. A system based on the rules of equality and the right of peoples to self-determination.

(1) Variables include everything related to the technological impact of weapons on humans in times of war, while constants in war will not change, such as those related to human nature, war motives, and their consequences.

(2) Richard Gowan. War Prevention and Peacekeeping. Future Wars Conference. Emirates Center for Strategic Studies and Research. Abu Dhabi. UAE. April 9-10, 2013. Without page number.

(3) Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members, provided that, in decisions taken under Chapter VI and paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

This article is part of the special edition of ANND’s monthly newsletter for the month of July 2024. These articles were prepared by young men and women from the Arab Youth Network. The opinions and ideas expressed in these articles express the views of the authors and do not necessarily reflect the official policy or position of ANND.

About the Arab Youth Network:

The Arab Youth Network seeks to provide a regional platform for young men and women from different countries in the region to have their voices heard, enhance their engagement with various development and human rights issues, and engage in influencing public policy.

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