On the Depraved Legal Debate over the Responsibility to Protect in Gaza

Authors

  • Author

  • Mohammed Hemchi

Keywords:

Responsibility to Protect, The Gaza Strip, Occupied Palestinian Territories, Security Council

Abstract

This paper investigates the legal debate over the relevance and applicability of the Responsibility to Protect (R2P) principle to the Gaza Strip and the Occupied Palestinian Territories. The paper argues that some issues have been dismissed from this legal debate, including whether R2P applies to an occupied territory and population upon which the occupier does not exercise control on the ground, while the occupied population has neither a state nor sovereignty. The legal debate also neglects that R2P requires the approval of the Security Council without a veto. Consequently, the question of the appropriate authority to authorize R2P and to intervene is elided. The presumed impossibility of the United States, and its allies in the Security Council, allowing the application of R2P to Gaza and the interest-based, political, and ideological biases that lend support to this position drain the legal debate of any substance. However, in this R2P debate about Gaza, there seems to be nothing solid to rely on, despite the urgent need for the application of the principle following the events of 7 October 2023.

References

  1. Abdelwahab El-Affendi, “Where is the ‘Responsibility to Protect’ in Gaza?” Al Jazeera , 21/10/2023, accessed on 2/11/2023, at: https://tinyurl.com/2auzn4p7
  2. UN General Assembly, “Resolution Adopted by the General Assembly on 16 September 2005,” A/RES/60/1, 24 October 2005, accessed on 2/11/2023, at: http://tinyurl.com/43ade295
  3. Ironically, Russia’s discourse in the UN Security Council, as reflected in its voting behaviour, showed greater awareness of this linguistic game: it justified its veto to the US resolution calling for “a humanitarian pause” saying that the situation demanded a “ceasefire”, not merely a “pause”.
  4. Ahmed Qassem Hussein & Mohammed Hemchi, “al-Qasʿa wa-Akalatuhā: al-Tadakhkhulāt al-Khārijiyya fī Lībyā Mā Baʿd al-Rabīʿ al-ʿArabī,” in: Ahmed Qassem Hussein (ed.), Lībyā: Taḥaddiyāt al-Intiqāl al-Dīmuqrāṭī wa-Azmat Bināʾ al-Dawla (Doha/Beirut: Arab Centre for Research and Policy Studies, 2022).
  5. Gareth Evans et al., The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), p. 35.
  6. Gareth Evans called it “a textbook case” of the R2P norm “working exactly as it was supposed to”. Evans is an academic and former foreign minister of Australia. He co-authored the ICISS report and is co-chair of the organization. See: Gareth Evans, “Interview: The ‘RtoP’ Balance Sheet after Libya,” Gevans , 2/9/2011, accessed on 2/11/2023, at: https://tinyurl.com/5n6p3hjr. In truth, search engines indicate that Evans has mentioned the Gaza Strip as a possible case in which R2P might apply – one of the rare mentions of Gaza. See: Gareth Evans, “The Responsibility to Protect: Where to Now?” Amnesty International , 23/5/2018, accessed on 2/11/2023, at: https://tinyurl.com/4bv7ve27
  7. See, for example: Catherine Renshaw, “R2P: An Idea whose Time Never Comes,” Lowy Institute , 2/6/2021, accessed on 2/11/2023, at: https://tinyurl.com/bdzaupuz
  8. Ribale Sleiman-Haidar, “Palestine, Israel and R2P: A Symposium,” London School of Economics , 22/7/2014, accessed on 2/11/2023, at: https://tinyurl.com/4f3uu4cn
  9. A researcher on genocide studies and human rights and then-senior program officer at the International Coalition for the Responsibility to Protect.
  10. Megan Schmidt, “The Israeli-Gaza Crisis and the Responsibility to Protect: Does the Norm Apply?,” London School of Economics , 23/7/2014, accessed on 2/11/2023, at: https://tinyurl.com/9hzvwbds
  11. Journalist, political analyst, and a previous fellow with various academic institutions.
  12. David Rieff, “R2P Isn’t a Useful Framework for Gaza—or Anything,” London School of Economics , 25/7/2014, accessed on 2/11/2023, at: https://tinyurl.com/2mjysav9
  13. An academic and then-executive director of the Global Centre for the Responsibility to Protect.
  14. Simon Adams, “Both Israel and Hamas have a Responsibility to Protect Civilians,” London School of Economics , 25/7/2014, accessed on 2/11/2023, at: https://tinyurl.com/4kx44ejm
  15. Lawyer in international law and former staff member of the US Agency for International Development.
  16. James P. Rudolph, “Gaza and Israel—A Case for International Humanitarian Law, Not R2P,” London School of Economics , 23/7/2014, accessed in 2/11/2023, at: https://tinyurl.com/6dtdkkyh
  17. A reader in international relations at the University of Westminster and an expert on humanitarian intervention, responsibility to protect, transitional justice, and international law.
  18. The same could be said of the intervention of Michael Kearney, a lecturer in law at the University of Sussex, but I chose not to focus on it because it is an example of a critique that dismisses R2P altogether, as is clear from the title. I will comment on this type of critique later, but the article merits reading and has several points of agreement with El-Affendi. See: Michael Kearney, “In Palestine, R2P Isn’t Dead. It Could Never Have Existed,” London School of Economics , 24/6/2023, accessed on 2/11/2023, at: https://tinyurl.com/3ez5ad86
  19. Ibid. Kearney notes, for example, that the Israeli-Palestinian conflict “as a structural, long-standing problem of occupation, racism, and violence” does not “fit” mainstream international legal scholarship’s focus on distinct major crises rather than everyday life. Citing a statement by the International Coalition on Responsibility to Protect—”Questions remained as to whether invoking RtoP would have brought the desired changes to protect civilians in this deeply politicized situation”—he comments: “What’s meant here by politicized, I guess, is that ‘we don’t think we should attempt to apply a tool designed to harass bad guys, to our democratic allies’”.
  20. Aidan Hehir, “‘Is Gaza in Israel?’ R2P and Inter-State Crises,” London School of Economics , 23/7/2014, accessed on 2/11/2023, at: https://tinyurl.com/bdhkc4v8
  21. “UN Chief ‘Horrified’ by Strike on Gaza Hospital,” UN News , 17/10/2023, accessed on 2/11/2023, at: https://tinyurl.com/574db443
  22. Or as Schmidt argues, what if the state is “unable” or “unwilling” to protect its population? Or what if it is, itself, committing the crimes? See: Schmidt.
  23. Evans et al., p. xiii.
  24. Ibid., pp. xiii, 55.
  25. Evans et al., pp. xiii, 55.
  26. On the debate over intervention absent Security Council authorization, see: Cristina G. Badescu, “Authorizing Humanitarian Intervention: Hard Choices in Saving Strangers,” Canadian Journal of Political Science , vol. 40, no. 1 (2007).
  27. Martha Finnemore & Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization , vol. 52, no. 4 (1998).
  28. We should not forget the title of John Austin’s work articulating the theory of speech act. See: John L. Austin, How to Do Things with Words (New York: Harvard University Press, 1962).
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2024-09-01

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Vol. 7 No. 015 (2024): Issue 015

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