Is Gaza in Israel? R2P and Inter-State Crises

This is the first post in our symposium on Israel, Palestine and the Responsibility to Protect. Other contributions can be found herehere and here.  Aidan Hehir is a Reader in International Relations at the University of Westminster and the author of The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Intervention. 

(Photo: UPI / Debbie Hill / Creative Commons)

(Photo: UPI / Debbie Hill / Creative Commons)

It is often noted that in times of war laws fall silent. But NGOs rarely do. When crises erupt – – or appear on the horizon – NGOs invariably take to conventional and, increasingly, social media to appeal for calm and/or highlight the suffering of innocents. On 15 July, I published a short article on E-IR in which I noted that the Global Centre for R2P (GCR2P), the International Coalition for RtoP (ICRtoP) and the Asia Pacific Centre for R2P (APCR2P) had afforded the crisis in Gaza negligible coverage since Israel’s “Operation Protective Edge” began a week earlier on the 8th of July. Collectively, the three organisations had only published two tweets during this period (both came from the ICRtoP and neither directly addressed key issues pertaining to the application of R2P). This was, I suggested, incongruous considering the huge international media attention and the shocking number of fatalities, injuries and displaced persons, but also because, during this seven-day period, the three organisations had highlighted numerous situations, many of which – such as class discrimination in Mexico – were very evidently of far less gravity.

In response to my article, the ICRtoP tweeted, “We are working on a Listserv highlighting situation in Gaza – stay tuned later this week”. The GCR2P likewise tweeted, “We have been monitoring the situation closely. A statement is forthcoming”. On the 17th both the ICRtoP and the GCR2P finally published statements. To date, the APCR2P has not replied to the article or issued a statement.

During the course of a Twitter exchange amongst R2P scholars and observers in the wake of my article, the question of R2P’s applicability was raised. Kyle Matthews of the Will to Intervene Project asked whether “the weakness of R2P is that it applies to atrocities committed within a state’s borders. Is Gaza in Israel?”. Obviously, “is Gaza in Israel?” is a contentious question; Gaza is within the “State of Palestine” which is recognised by 134 UN member states and thus a very plausible answer could well be “no”. The statement issued by ICRtoP indeed stated that if Gaza is not considered to be part of Israel “RtoP would not be applicable for the protection of civilians across borders in the crisis”. Thus, could there then be logic to the idea that R2P does not apply to the crisis in Gaza because it is an inter-state conflict, hence the lack of coverage from R2P groups? In my opinion this is not a convincing argument.

First, it is disingenuous to advance this legalistic argument in the context of a crisis that very obviously constitutes a situation of grave humanitarian concern. Can organisations established to promote a concept dedicated to the protection of civilians and the promotion of respect for human rights credibly avoid engaging with a crisis on a narrow technical interpretation of R2P’s remit? Indeed, in the past, these organisations have commentated on inter-state crises; for example, on March 31, the ICRtoP issued a statement on the Russian intervention in Crimea.

A second point to note is that Israel does not recognise the State of Palestine. Thus, this is not an unambiguous case of inter-state conflict. The ambiguity surrounding the status of the State of Palestine could be used – if there was sufficient will – to overcome the “R2P does not apply to inter-state crises” argument. The issue could, of course, be disputed by international lawyers and brings up myriad issues related to recognition, legitimate authority, de jure and de facto sovereignty, but the key point is that there is sufficient grounds for any R2P-orientated group to make a case for their right to, at least, discuss the crisis.

The third point is the more general question of whether R2P is indeed only relevant in intra-state crises. That has certainly been the general trend in discussions about R2P since its inception, but could a case be made for R2P’s applicability in inter-state crises? Potentially. Paragraphs 138 & 139 of the 2005 World Summit Outcome Document constitute the internationally recognised definition of R2P. While Paragraph 138 very clearly relates to a state’s internal responsibility, Paragraph 139 is less definitive. It states that the international community has a responsibility “to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. This does not stipulate that the crimes have to be committed in an intra-state context. The paragraph does go on to say that action by the international community could be taken should “national authorities manifestly fail to protect their population”. While this clearly does refer to national authorities, it arguably need not preclude cases of inter-state conflict. For example, if state x bombs state y and causes the citizens of y to suffer one of the four crimes then could it not be said that state y has “manifestly failed” to protect its population? The wording here is important; Paragraph 139 does not state that the national authorities need to be “unwilling” to protect, or be “unconcerned” about protecting, their population. In the specific case of Gaza, if we accept that this is in fact an inter-state crisis then can’t it be said that the national authorities have indeed “manifestly failed” to protect their population from Israeli military aggression (though not for the want of trying)? Indeed, the statement issued by the GCR2P stated, “The Israeli government and Hamas must uphold their responsibility to protect civilians from war crimes”. Clearly this was not a warning to each to refrain from committing war crimes against their own people and thus the statement could be read to endorse R2P in inter-state crises.

It is worth remembering that the chances of the international community invoking R2P in the context of Gaza are negligible. To be implemented, R2P depends on UN Security Council consent and thus, as I have argued many times elsewhere, it is prey to the political exigencies of the veto-wielding permanent 5 members of the Council. The US would of course veto any attempt to censure Israel as it has done many times. Nonetheless, the relative scarcity of R2P-reporting regarding the crisis in Gaza suggests a troubling selectivity amongst R2P NGOs and, more interestingly, and perhaps more importantly, has highlighted a hitherto under-researched question regarding R2P’s applicability in inter-state crises, which is likely to re-emerge.

 

*****

 

Other contributions to this symposium, include:

 

Gaza and Israel – A Case for International Humanitarian Law, Not R2P, by James P. Rudoph

 

In Palestine, R2P Isn’t Dead. It Could Never Have Existed., by Michael Kearney

 

The Israeli-Gaza Crisis and the Responsibility to Protect: Does the Norm Apply?, by Megan Schmidt

 

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About Mark Kersten

Mark is a researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in International Law, Israel, Palestine, Responsibiltiy to Protect (R2P) and tagged , , . Bookmark the permalink.

2 Responses to Is Gaza in Israel? R2P and Inter-State Crises

  1. Maya says:

    I find this post a little strange. First you state: “…it is disingenuous to advance this legalistic argument in the context of a crisis that very obviously constitutes a situation of grave humanitarian concern. Can organisations… credibly avoid engaging with a crisis on a narrow technical interpretation of R2P’s remit?” But then your key counter-argument seems to be a technical and legalistic interpretation of the World Summit’s concept of R2P, and why it should apply to the case of Gaza.

    Not that this is particularly surprising. The problem with R2P is that it has no fixed meaning. At best it is a plaything of the social media, at worst it is a legal straightjacket. Everyone can bandy about R2P and claim they are not entirely wrong. This post wades into an already confused debate, and – not surprisingly – struggles to provide greater clarity.

  2. Maya says:

    I should, however, add that the introductory paragraphs which lay bare these organisations’ reluctance to address the issue are revealing. Any ideas on why they prefer not to engage (beyond the disputed notion of R2P itself)?

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