The Blockade of Gaza and International Law: A Positivist View

INTRODUCTION

The Gaza Strip (“Gaza”) is a war-torn area of land that has been a subject of contention between Israel and Palestine for over 15 years. The first blockade on this region was temporarily imposed by Israel from 2005 to 2006. Following this, a land, air, and sea blockade accompanied by a series of sanctions, including power cuts, border closures, and restricted imports, was imposed in 2007. This has continued to the present day.

The blockade has been the subject of massive criticism, with media and human rights experts labeling it a humanitarian crisis [1]. International organizations have stepped in and attempted to assert the authority of international law to no avail. A panel of human rights experts assembled by the United Nations (“UN”) has declared the blockade illegal [2]. UN Security Council Resolution 1860, adopted unanimously in 2009, called for an immediate ceasefire and a complete withdrawal of Israeli resources [3]. Israel refused to lift the blockade and conflict continued. Hamas, a militant Palestinian nationalist movement, refused to accept any ceasefire agreement as long as Israel continued the Gaza blockade. Proposals of a two-state solution were put forward in UN General Assembly Resolution 181 and affirmed in subsequent resolutions but have also never attained fruition. Thus, UN action has been steadfastly ignored by both Israel and Hamas. This constitutes a clear breach of Article 25 of the UN Charter, under which all members agree to “accept and carry out the decisions of the Security Council” [4]. In light of this, it would be easy to write that Israel has violated an obligation owed to the world at large under international law. However, there is a knowledge gap concerning whether such an obligation is present due to the nature of the international law system. To this end, this paper uses a positivist lens with a focus on the jurisprudence of HLA Hart to examine the nature of international law in the context of the blockade of Gaza to show that Israel has breached a legal obligation.

In his book The Concept of Law, HLA Hart has explored the viability of international law as posited law and as a legal system in detail. Section II introduces Hart’s views regarding whether international law constitutes a legal system and examines whether it would be applicable in the modern scenario. Section III explores the views of Hart, as well as prominent classical positivist legal theorists, and undertakes a detailed analysis of whether international law gives rise to any legal obligation in light of the Gaza blockade. Section IV examines whether international law is more suited to the label of a moral obligation than a legal obligation. Section V concludes.

INTERNATIONAL LAW AS A LEGAL SYSTEM

Hart has developed his conception of the law as a union of primary and secondary rules [5]. His primary point of contention with international law as a legal system is the lack of secondary rules, in particular, the lack of a rule of recognition [6]. Primary rules are those which govern the conduct of private citizens, requiring them to perform or abstain from acts as decreed [7]. A system with only primary rules would be considered primitive and fall short of the requirements of being called a legal system, according to Hart [8]. The set of rules would suffer from uncertainty, staticity, and inefficiency [9]. The necessary supplement to the primary rules to remedy these defects are rules of recognition, change, and adjudication - or secondary rules [10]. Rules governing nations created by treaties can be viewed as primary rules. However, there is a distinct lack of secondary rules, which state that these primary rules must be abided by. Secondary rules are those which govern the primary rules and confer power. They determine how primary rules can be created, altered, or identified [11]. The rule of recognition is the rule by virtue of which other rules are able to acquire the character of legality [12]. The rule of recognition is a clear set of criteria to determine the validity of a law. Such a valid law then has an obligatory effect because society accepts it as a reasonable process of creating law [13]. Hart places the rule of recognition at the heart of the legal system because it provides the primary rules with authority. It exists as an accepted social fact, the validity of which is not questioned.

Additionally, Hart points out that there are no structures resembling a legislature or an effective adjudicatory body for international law [14]. This translates to a lack of a rule of adjudication. The International Court of Justice (ICJ), although capable of adjudicating on international law issues, is limited because it cannot adjudicate comprehensive decisions with compulsory sanctions [15]. Though its decisions are generally followed, they are followed at the whims of the parties involved [16]. Countries can only be brought before the ICJ by choice and will still undertake a cost-benefit analysis when deciding whether to abide by the verdict [17]. For the creation of a legal obligation, there must be a binding and authoritative rule of recognition [18]. Other positivist scholars such as Eric Posner have agreed that mere voluntary consent of states is insufficient to constitute such a rule [19]. There must be some additional formality [20]. Otherwise, States are only acting on prudential or self-interested grounds rather than because of a legal obligation [21]. Authority cannot be vested in a self-imposed obligation by virtue of another self-imposed obligation [22]. Hart would argue that until there is an accepted and internalized rule of recognition, change, and adjudication, international law is merely a primitive system of rules.

It is worth considering that The Concept of Law was published in 1961 and could not foresee the future developments in international law that took place in the 20th century [23]. Modifying Hart’s framework to account for modern developments, such as wider acceptance and codification of international law principles and increasing sophistication of judicial mechanisms allows us to identify secondary rules of recognition, change, and adjudication in international law [24]. These rules would differ from those of a municipal legal system due to underlying differences, which Hart acknowledges [25], but perform the same functions as legislative, judicial, and executive structures in form so as to overcome the defects of a primitive legal order.

The legislative function can be adequately performed by the institutionalization of the treaty-making process [26], the development of customary international law [27], the emergence of law-making capabilities of international organizations such as the Security Council [28], and the rise of importance of jus cogens or the peremptory norms of international law [29]. International law is also no longer devoid of an adjudication system even though there is no centralized judiciary as is present in municipal law systems. The ICJ, along with other courts and tribunals at different levels with different specializations and jurisdictions, regularly give final and authoritative determinations of when and how the law has been violated [30]. The system is not as comprehensive as municipal law systems but has advanced to a degree where it would no longer be considered primitive [31].

A combination of modern sources of international law can also be said to create a rule of recognition within Hart’s definition of it as a criterion to determine the validity of primary rules and the relationship between different sources of law [32]. Article 38 of the Statute of the ICJ conclusively declares the recognized sources of international law the ICJ is required to apply [33]. It encompasses the general principles of law, treaties, and customary law [34]. Legislation by international organizations also derives its authority from sources recognized under Article 38 [35]. A hierarchy between different sources of law is also created by conflict rules, the concept of jus cogens, and Article 103 of the UN Charter [36]. With this in mind, it can be concluded that within the positivist definition proposed by Hart, international law qualifies as a legal system.

INTERNATIONAL LAW AS LAW GIVING RISE TO LEGAL OBLIGATIONS

Determining whether international law amounts to law at all necessitates examining the requirements and characteristics of a posited law to then ascertain whether these criteria are met. John Austin, considered by many to be the creator of legal positivism with his command theory, would propose that a law must be a habitually followed rule declared by a sovereign [37]. International law would fall short of this standard. There is no discernable sovereign and no level of sanction that can be effectively imposed to ensure compliance [38]. As Hart points out, even the ability of the United Nations Security Council to respond to threats to international security is severely hampered by the veto powers granted to powerful nations [39]. Even with specific reference to the Israel-Palestine conflict, the USA’s powerful position in the Security Council has enabled it to veto resolutions detrimental to Israel’s interests [40]. Therefore, Israel’s past transgressions regarding international humanitarian law have gone largely unchecked. Under the command theory, a law without sanction is no law at all [41]. The inherent power imbalance present in the international law system not present in the municipal law system makes the same system of sanctions inadequate [42]. Thus, as per the command theory, international law is not law.

The command theory would therefore ascribe no authority to the UN Security Council Resolution 1860. Regardless of what the resolution ordered, no binding obligation arises out of it. Austin would argue that although Israel may be swayed by moral considerations, they have no legal obligation to adhere to the ceasefire ordered by the resolution. Post the adoption of Resolution 1860, the USA has vetoed Security Council draft resolutions on the Palestinian question which would impose sanctions on Israel in 2011, 2017, and 2018 [43]. The complete lack of enforcement following the passing of the resolution supports the theory that the United Nations, and consequently the international law system as a whole, lacks the ability to impose sanctions. Another matter taken up by the resolution was a call for member states to help arrange and guarantee long-term peace in the area with specific measures to tackle the illicit transfer of arms and ammunition to Gaza [44]. The profoundly limited impact of the resolution is demonstrated by the lack of action taken on this point. The Security Council did not act when this smuggling continued [45].

Posner would agree that with the lack of a binding law with the ability to control state action through sanction, mere normative value is insufficient to influence a state’s behavior [46]. Compliance with international law, then, is determined by each state’s individual interests [47]. He would argue that states undergo a cost-benefit analysis to, then, determine whether it would be prudent to obey the law in question [48]. They would take into account possible advantages of flouting the rule as weighed against the possibility of retaliation by other states [49].

This view is supported by Israel’s response to international pressure in the past. During an escalation of military activities in Lebanon in 1996 termed “Operation Grapes of Wrath”, the Israel Defence Forces (“IDF”) opened fire at a UN compound. The Human Rights Watch noted that the attack violated “a key principle of international humanitarian law”, including Article 57(2)(a)(ii) of Protocol I [50]. Pressure from the international community pushed Israel to agree to a cease-fire. The IDF’s freedom and legitimacy hinge on Security Council deliberations, so despite their protestations and misgivings about the incident [51], they relented.

Hart’s positivism attempts to overcome the shortcomings of classical positivism as espoused by Austin and Posner. He rejects the command theory and proposes a more inclusive definition of law. Hart would reject the contention that international law is not binding simply because of a lack of organized sanctions [52]. Firstly, he argues that the conception of law as simply an order backed by a threat must be set aside [53]. Secondly, he points out that international law and municipal law are fundamentally different. The inherent power imbalance between different countries makes it difficult to impose equal sanctions on all members [54]. Additionally, the public nature of international law violations reduces the chance that the matter will remain between the aggressor and the victim [55]. Pursuant to these differences, there is not a similar necessity for sanction when considering international law and municipal law nor is there an equal chance of their effectiveness [56]. He concludes that sanctions are not a necessary element of law. He would, therefore, argue that regardless of whether UN Security Council Resolution 1860 will be enforced through sanction or not, a binding obligation arises nonetheless.

Although Hart rejects the belief that international law amounts to a legal system and not just a set of rules, he would still give international law the quality of being law. The lack of a rule of recognition does not inherently invalidate the law from having any authority [57]. As he says, “a society may live by rules imposing obligations on its members as 'binding', even though they are regarded simply as a set of separate rules, not unified by or deriving their validity from any more basic rule” [58]. The rule of recognition is a luxury present in more advanced legal systems, which provides convenience but is not a necessity [59]. With the absence of such a rule to provide certainty, however, these rules have to derive their legitimacy from social acceptance. They must enjoy acceptance as a standard of reasonable conduct accompanied by social pressure to conform to that standard to be considered a binding obligation.

In order to show that there is an obligation arising from a rule, Hart opines that it must be shown that “there is general pressure for conformity to the rules, claims and admissions are based on them, and their breach is held to justify not only insistent demands for com­pensation, but reprisals and counter-measures.”[60] With respect to general pressure for conformity, there is widespread pressure in the international community to uphold international law, particularly humanitarian law, which affects the sovereignty of states or the lives of citizens. Hart points out that it is only rational for there to be a rational expectation of extended periods of peace because of the high risks and stakes of war [61]. Regardless of the efficacy of sanctions, infractions of international law are met with widespread condemnation and calls for remedy. A prominent recent example would be the global condemnation of Russia’s invasion of Ukraine [62]. Even in the context of the Israel-Palestine conflict, the allegations put forth, and remedies that have been sought are made in the language of the law and not on the basis of appeals to conscience. The expectation is that Israel must abide by its international obligations by virtue of being bound by the UN Charter as a member of the UN. Israel’s breach of international law is seen as warranting countermeasures as demonstrated by UN intervention. Successful action that has been taken against Israel in the past includes UN Security Council Resolution 1701, adopted after the Second Lebanon War [63]. The resolution called for a ceasefire and empowered the United Nations Interim Force in Lebanon (UNIFIL) to carry out its mandate to safeguard international peace and security and protect civilians [64]. The demands made by world leaders do not expect that Israel would be led by shame or guilt to abide by any principle. The predominant arguments and requests made by states reference treaties, precedents, and judicial writing [65]. Thus, all three conditions put forward by Hart are met. It can be said that international law enjoys general acceptance as a reasonable standard of conduct which subsequently leads to a binding obligation on nations.

INTERNATIONAL LAW AS A MORAL OBLIGATION

Hart does not view the legal obligation arising from international law as based on moral considerations. Although claims under international law may be accompanied by moral appeals, the foundation of obligation is not a moral rule. The UN [66], as well as states in the international community, have morally condemned Israel’s actions [67]. Numerous reports have been published outlining the humanitarian impact of the blockade, expressing extreme moral reproach for the loss of human life and wellbeing in Gaza as a result of the sanctions [68]. However, as previously mentioned, the primary appeals and actions are legal and not moral infractions.

The notion that international law is primarily moral rather than legal is also undermined by the presence of rules purely for convenience and necessity [69]. Some rules exist as a matter of formality and provide arbitrary distinctions and details to maximize certainty and predictability [70]. This is inconsistent with the parameters of a moral code, which should ideally not contain any rules which are not intrinsically important or preferable to alternatives [71]. Thus, the obligation arising from international law is conclusively legal in nature.

CONCLUSION

This paper has analyzed the nature of obligation that arises from international law in light of positivist jurisprudence on the subject. Although Hart contended that international law amounts to law but not a legal system, viewing the framework of his analysis in the modern context reveals that the complex mechanisms of international law, which have developed over time, encompass the features of the secondary rules of recognition, change, and adjudication. Therefore, international law is a legal system and has laws that give rise to legal obligations, not just moral obligations. It can, therefore, be concluded that by violating international humanitarian law and disobeying the UN Security Council Resolution 1860, Israel has violated a valid law and breached a legal duty.

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5. H L A Hart, The Concept of Law, 2nd ed. (OUP, 1961), ch 5.

6. Ibid ch 10.

7. Ibid 81.

8. Ibid

9. Ibid 92

10. Ibid 94

11. Ibid

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22. Hart, "The Concept of Law," 224.

23. Mehrdad Payandeh, “The Concept of International Law in the Jurisprudence of H.L.A Hart,” The European Journal of International Law 21 (2011): 968.

24. Ibid

25. Hart, "The Concept of Law," 217

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27. Payandeh, “The Concept of International Law in the Jurisprudence of H.L.A Hart”.

28. Brun-Otto Bryde, “International Democratic Constitutionalism,” Towards World Constitutionalism (2005)

29. Payandeh “The Concept of International Law in the Jurisprudence of H.L.A Hart,” 984.

30. Tomuschat, “International Courts and Tribunals,” Max Planck Encyclopedia of Public International Law (2006): 11–32.

31. Payandeh, “The Concept of International Law in the Jurisprudence of H.L.A Hart,” 989.

32. Ibid

33. The Statute of the International Court of Justice, a 38.

34. Ibid

35. Ibid

36. International Law Commission, “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law,” Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682 (2006).

37. Hart, "The Concept of Law," ch 2; John Austin, The Province of Jurisprudence Determined (first published 1832, Cambridge University Press, 1995).

38. Ibid 214

39. Ibid 217

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42. Ibid 218.

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44. UNSC Resolution 1860.

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46. Posner, “Do states have a moral obligation to obey international law?”.

47. Ibid

48. Ibid

49. Ibid

50. Human Rights Watch, “Israel/Lebanon - "Operation Grapes of Wrath" The Civilian Victims,” Human Rights Watch Publications (1997): 9.

51. David Turns, “Some Reflections On The Conflict In Southern Lebanon: The ‘Qana Incident’ And International Humanitarian Law,” Journal of Conflict & Security Law 5, no 2 (2000): 177–209.

52. Hart, "The Concept of Law," 217

53. Ibid

54. Ibid

55. Ibid

56. Ibid 219

57. Ibid

58. Ibid 234

59. Ibid 235

60. Ibid 220

61. Ibid

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63. UNSC Resolution 1701 (2009) S/Res/1701

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65. Hart, "The Concept of Law," 228.

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68. UNICEF, “The Gaza Strip | The humanitarian impact of 15 years of blockade”

69. Hart, "The Concept of Law," 229.

70. Ibid

71. Ibid