Beyond Power Politics

While the war-weary civilians of Gaza bury their dead and bandage their wounded, cries to investigate external pagepotential Israeli war crimescall_made grow louder. Respected human rights groups - both inside and out of Israel - and high-level UN officials have been calling for investigation into potential Israeli violations of international humanitarian law (IHL) since the forceful pounding of Gaza began with last year's end.

While observers accuse "Operation Cast Lead" of failing to properly distinguish between intended targets and civilians, Israel is no stranger to such accusations. The state has long drawn the ire of human rights campaigners and international lawyers - including repeated accusations of war crimes committed in the Occupied Territories. However, apart from the persistent din of harshly worded UN resolutions, Israeli officials have remained largely immune from prosecution.

Theoretically, there is more than one avenue for investigating alleged violations. The UN Human Rights Council has the authority to investigate potential war crimes, but Israel has managed to block its previous attempts. Since Israel is not a signatory to the International Criminal Court, the body has no jurisdiction there, and while the UN Security Council could refer the matter to the court, it is unlikely to happen. The Security Council could also initiate its own investigation - even setting-up a war crimes tribunal - but such attempts have been met previously by a US veto.

Israel's privileged relationship with the US has helped insulate it time and again from suffering legal repercussions. Largely because Israel enjoys the continued, unwavering support of the US, international law has repeatedly been cast aside in favor of power politics.

When power so often trumps law and brute force defines the terms of success, is IHL invariably ignored? And do ignoring the laws of war signal that they don't actually matter?

A closer look at its application - or lack thereof - in Gaza helps illuminate the answer.

IHL shapes war's aftermath

While respect for IHL did not appear to mitigate Israel's conduct in Gaza, it does not preclude law from playing a critical role in shaping what comes next.

Before the ceasefire was even in effect, the Israeli newspaper, external pageHaaretzcall_made, reported on Israeli government officials' "serious fears" of legal action over alleged war crimes. In addition to a potential independent, international investigation on civilian deaths, the threat of personal lawsuits looms large. Fear of lawsuits brought by individuals and organizations is expected to be the "main danger," according to the article. In preparation for expected legal claims, the Israeli defense establishment has begun organizing materials and outlining its defense of military attacks on private houses in Gaza.

Ultimately, building a legal case for prosecution heightens international awareness of the crimes committed. And even if Israel is able to block an independent investigation, it cannot hamper the inevitable headache at best - criminal punishment at worst - resulting from personal lawsuits.

IHL molds perceptions

IHL has played a dominant role in shaping the international community's thinking about the Gaza incursion. It has influenced media coverage, public opinion and government pronouncements.

Much international media coverage has been framed in light of whether Israel discharged an excessive use of force and adequately distinguished between civilian and military targets. Israel well prepared its answer by consulting lawyers and coaching its spokespeople to frame its operation within the legally sanctioned paradigm of self-defense, while repeatedly denying any excessive use of force.

But despite its efforts to maintain a stranglehold on information coming out of Gaza, world public opinion remained strongly opposed to Israel's actions. In large protests the world over, citizens took to the streets employing the language of international law, many carrying signs accusing Israel of war crimes. Global public opinion of Israel's actions was then formed - implicitly and explicitly - by the precepts of international humanitarian law. This diaspora of public opinion in turn was attempting to further influence the norms of acceptable state behavior.

Indeed, the norms of international law do much to shape the behavior of states. While dramatic violations of international law, like the illegal or disproportionate use of force, make headlines, most states abide by most rules of international law most of the time. So then it does not come as a surprise that a severe breach can significantly impact a violating state's relations with other states.

Earning a reputation as an 'outlier' on weighty legal issues inevitably affects the good-standing of a state on the world stage. This can lead to increasingly costly international isolation - from damaging diplomatic relations to undermining financially advantageous trade negotiations.

For example, Jordan, one of only two Arab countries to have normalized relations with Israel, has threatened to reconsider diplomatic ties with the Jewish state in the wake of its Gaza offensive. And on 14 January - when the death toll in Gaza had surpassed 1,000 - the EU froze negotiations with Israel on making it a 'privileged' partner, enjoying special political, diplomatic and trade links.

Beyond IHL, toward peaceful coexistence

International law - and perhaps most significantly the life-and-death laws that govern aggression - is quite simply the only viable way to a better tomorrow.

Resorting to the excessive use of force is only evidence of a past failure. Israel demonstrates this painful reality time and again: The founding flaw of the Jewish state is that it came at the expense of a Palestinian homeland. And for the most part, both parties have looked backward ever since, locking them in a cycle of violence and retribution.

But aggression can offer no lasting solution, no real hope for a peaceful future. The prospects for Israeli-Palestinian peace only wane following another episode of death and destruction.

Hope then lies in the rule of law, as law is not simply a reflection of what states already do, but an impetus to pull them in a more civilized direction. The thrust of civilization is to draw us away from aggression and retribution and toward a more peaceful coexistence. Only respect for law can provide that impetus for civilization's progress.

This is not to deny the inescapable reality of power politics. Undoubtedly, the special political partnership between Israel and the US - not the rule of law - has repeatedly steadied the small Jewish state's tenuous existence and shielded its leaders from international criminal prosecution.

But power is not the only force at work. A closer look reveals a nuanced interaction between power and law. While the dialectic remains contentious and contested, the rule of law and realpolitik engage in a complex dance. Surely, the normative power of law cannot be easily dismissed.

After all, law is the bridge to a better tomorrow. And this bridge is in desperate need of construction between Israel and Palestine.

Ultimately, only the promotion of international law and an abiding respect for human rights can begin the unraveling of a vicious cycle where violence begets violence. Without an enhanced respect for international law, one of the world's most intractable conflicts will inevitably rage on.