Clueless in Gaza

November 07, 2023 10:22
Photo: Reuters

No matter how the mayhem in Gaza is viewed politically, unless we are to abandon the principle of civilised behaviour that is the essence of rule based society, let alone common decency, it is impossible to stand silently by whilst children, non-combatant women and the elderly are being slaughtered.

I have to take issue with my noble and learned friends Lord Macdonald KC and Lord Pannick KC when, in their letter to The Times of 20 October 2023 they speak of lawyers finding violations of international law without regard to basic legal principles of self-defence.

These eminent and very distinguished KCs contend that insofar as Hamas has signalled its intention to destroy Israel and all Jews living within her borders, faced with an enemy bent upon its genocidal destruction, Israel has no plausible alternative to the violence that it is inflicting on the people of Gaza.

Can the legal principle of self-defence really be stretched to such an absolute and indiscriminate measure? No plausible alternative ? Surely not.

The overriding condition that constrains self-defence is that it must be reasonably proportionate to the subjective perception of the threat of force.

This is sometimes, inaccurately, exemplified by saying that you may use a gun against a gunman and a knife against a knifeman.

But, as no-one knows better than my noble and learned friends, the concept of self-defence is wide enough to accommodate even a pre-emptive strike when one is faced with an overwhelming threat of violence such that it may well be justifiable to shoot an assailant only armed with a knife. All such situations are fact sensitive.

Similarly, when faced with an unprovoked attack by a superior force, the steps taken in one’s own defence cannot be too finely measured, the instinct of self-preservation is not to be measured artificially divorced from the emotional heat of the moment when judgment is impaired.

Against these broad principles, can it be argued, honestly, that the carnage being perpetrated upon thousands of non-combatant Palestinian civilians is reasonably proportionate to the perceived threat from Hamas?

Make every possible allowance for Hamas’ threat of the violent extinction of all Jews within Israel’s borders. On what basis can that threat be ascribed to the vast majority of Palestinians who do not subscribe to Hamas or it’s twisted logic?

There is neither the time nor the space within this study to examine the historical origins of the Gaza war, regardless of whether it is approached as a clash of religions or a geopolitical contest for land.

Understanding the situation cannot ignore the seeds of conflict sown in thousands of years of suppression of the Jewish people, the Balfour Declaration, the Holocaust, the various wars such as the War of Independence, the 6 Day War, the Yom Kippur War, all of which reflect the mindset of a people with a necessarily hypersensitive instinct for survival.

On the other side of the coin the forcible displacement of millions of non-Jewish occupants of Palestine in 1948, the creation of two disconnected, barely viable and landlocked oases of land nominally considered Palestinian but contained within the borders of Israel was ripe for trouble.

Add in unremitting, creeping and illegal land annexation by Jewish settlers largely condoned by successive Israeli governments and boosted by America’s most dangerously stupid President of all time and one can well imagine how the pressure began to build.

Undoubtedly the straw that broke the camel’s back was the formation under Netanyahu of an Israeli cabinet composed of rabid religious zealots and violent racist bigots.

None of which can remotely begin to justify or exonerate Hamas’ evil criminal attack on 7th October 2023 a Jewish Sabbath day, the murder of innocent men, women and children and the seizure of hundreds of hostages.

Indisputably, this called for swift retribution. But it did not legitimise a descent to the same levels of savage inhumanity.

My noble and learned friends’ argument carried to its zero sum conclusion appears to be that threatened with total extinction by Hamas, Israel is entitled, under the principle of self-defence, to extinguish every member of Hamas regardless of the cost to the Strip’s non-combatant civilian population.

As an ex-soldier and criminal defence barrister I know of no such legal principle at International or Domestic Law.

For God’s sake, stop this pursuit of spurious legal justification and cease the killing and maiming of innocents, forthwith.

-- Contact us at [email protected]

King's Counsel