Does the Law have a Place in a World of Buried Bodies?

[Benazir Jatoi is a human rights lawyer from Pakistan currently living in Bath, UK. She has worked as a consultant with UNFPA and UNWomen, Pakistan.]

A buried mobile phone, along with its owner, Refat Radwan, in a shallow sand grave has settled, at least one thing we have been debating for a while. That Israel’s Defence Force operates with immunity until it is caught. And then it carries on anyway. 

The bodies of fifteen civil emergency responders, from the Red Crescent and the UN, were recovered a week after being killed in Tal-al Sultan, an area of Rafah city in Gaza. Refat Radwan’s video footage of the encounter, and then massacre, refutes everything Israel initially claimed – when the footage hadn’t been found – that the vehicles approached IDF soldiers “suspiciously” without lights, that these men were armed and wore no hi-vis gear. All these claims have been refuted, not by another person’s testimony, but by clear video evidence for the world to see. 

In the footage, Radwan’s scared, steady voice repeatedly intones the shahada – a call recited in pivotal moments in a Muslim’s life including when one knows death is imminent. Sounds of shots that went on for over 5 minutes where among darkness clear ambulance lights can be seen. What can also be sensed is the desperation with which Refat recites his last words. These have seared permanently upon us. 

Geneva-based Euro-Med Human Rights Monitor has described the incident as “the largest mass execution of humanitarian workers in the history of modern warfare” and according to the UN, Israel has killed over 1,400 medical personnel, 27 Red Crescent paramedics and 111 Civil Defence personnel since October 7^th 2023. 

This torment has added to the pile of already distressing scenes coming out of Gaza over the last 19 months – that of the industrial levels of dust from the rubble of buildings and the extermination of human life, in which parents are weighing body parts to estimate their dead children’s weight, their body parts scattered by powerful, relentless Israeli bombs. 

Among all this, Refat Radwan’s footage poses many questions about rules and processes of war. Where is the accountability, and the protection of those not participating in hostilities? Where is the structure that is supposed to prevent such blatant massacres and if, when, they do occur, what are the implementation mechanisms that will ensure justice? 

Perhaps a rudimentary question to ask is, where is the law?

We know that there are laws – treaties, conventions, norms even – which govern societies and relations between countries. International laws were created to help states govern how they cooperate with each other and to aid the resolution of conflicts and maintain peace. 

In the context of Gaza, ‘Where is the law?’ is no longer a question that has a straight forward answer. Let’s just take the example of the law of war. The Geneva Conventions of 1949, comprise over 300 pages, with 500 articles that lay down a detailed foundation of rules, providing us a framework on how to treat wounded soldiers and captives and protect civilian populations and medical professionals in war, conflict and occupied territories. 

The Convention highlights the need to protect medical personnel in all circumstances and protect all forms of transport that carries the sick, wounded and medical supplies. These Conventions are followed by three protocols, with Protocol III providing organisations such as the Red Crescent and Red Cross a protective umbrella in conflicts and wars. This strengthens neutrality in humanitarian access without it being politicised. The Palestine Red Cresent (PRCS) operates in Gaza under the Geneva Convention and specifically under protocol III. 

The basic premise of the Convention formalises ideas that were already well established by the time it came around – after all, the world had just seen the back of World War II where well over 50 million people died. The principle of the Conventions re-enforces and formalises the concept that even in periods of violence and conflict, human dignity must be respected and upheld. The Convention evolved to knowledge civilian protection stating as a preamble that “civilians were certainly ‘in the war’, and exposed to the same dangers as the combatants – and sometimes worse,” due to the enhanced nature of arms and modern intervention. The protection of medical personal became essential and in occupied territories the occupying power’s obligations towards an occupied population were laid down. 

So perhaps the question to ask is, under the claim of ‘professional failures’ as explanation by the Israeli authorities for the killing of aid workers, where is international law, specifically the Geneva Conventions. Where is the mechanism that questions countries actions when 15 aid workers have been ambushed for over 5 minutes in close range following which the bodies, ambulances and evidence have been buried?  

Western societies are built on the utopian principles of John Rawls – that of a just and fair society achieved by ideal institutions and laws that are blind to race or social class so as to uphold justice for all. Respect for human rights is the liberal theory on which much of the world order relies. The foundational understanding is that the law is a neutral tool for the protection of, and usage by, all people. The premise of international law attempts to state that countries have moral obligations even during war, with established the principles: jus ad bellum (just cause for war) and jus in bello (just conduct in war), which provide important theoretical rules for and in war.  They lay a strong foundation for a ‘just war’, which many would find hard to disagree with. 

But war is messy and political history tells a different tale to the moralistic ideals. It shows us that these much-lauded jurisprudential concepts are professed by Western politicians and mainstream Western media as both aspirations for their own societies and as a way of ‘othering’ parts of the world that do not adopt them in the same neat, and sometimes simplistic, packaging as have been adopted by the Western world. 

George Bush Jr’s words before the invasion of Iraq when he said, “you are either with us or you are with the terrorists,” inferred more than just the good guys versus the bad guys. The statement attempts to draw a moral line – ‘us’ refers to the law abiding and freedom loving people of the Western world and for those that do not actively stand with ‘us’ it inferred solidarity with barbarism, backwardness and lawlessness. This moralistic judgement helped propel an invasion of a sovereign country without proper evidence and in contravention of the UN Charter’s principle of respecting national sovereignty. Well over 200,000 people died in Iraq and the country continues to reel from the instability all these years later.  

Since the offensive in Gaza a newspaper article has described Israel as “fighting on the frontline of the free world.” The free world referring to collective liberal democracies that uphold the rule of law and concepts of justice and accountability. It is clear that this is at the expense of others, in this case the Palestinian people. 

Western governments say that human rights and the rule of law are internal to their democratic systems. What they haven’t told their voting public is that these concepts are subjectively applied aboard depending on who is being supported (or opposed). 

For example, an invasion is considered unequivocally against international law when Russia does it in Ukraine. 39 countries, mainly Western, including Germany and the United Kingdom urged the International Criminal Court (ICC) to investigate potential war crimes committed by Russian forces and later, over 40 countries, including the United States, pledged to coordinate efforts to investigate suspected war crimes by Russian forces in Ukraine. 

Yet the lines blur and the law become almost non-functional when it applies to Israel occupying Palestinian land. The United States was quick to condemn South Africa’s case in the ICJ against Israel (South Africa v. Israel under the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip). While United Kingdom and the EU have been quick to point to the international principle of Israel’s right to defend itself, as is the right of member states under Article 51 of the UN Charter, while conveniently overlooking other established international legal principles of an occupying force’s obligation towards an occupied people, the rules of proportionality, the need to protect civilians and medical professionals and the illegality of using starvation as a weapon of war. 

It would be safe to say that the international rules-based order, in which the Western world takes such pride, and dare I say, preaches its principles to the Global South, has been battered and left in such tatters after this onslaught on Gaza that it is up for debate as to whether it can go back to having the value it once held.  

Taking all this into account, the last 18 months has reconfirmed that international law is a tool for the privileged, powerful ruling elite of the Western world. The rules-based order and the utopian ideas of justice and fairness are not universal.  They are subjective depending on who is using them and who is being targeted. These utopian ideas are limited even in Western societies, where more privileged groups are advantaged over poor and/or ethnic minorities populations – look at the indiscriminate targeting and killing of African Americans in the US or the systematic targeting of Muslims by Western immigration and border control after 9/11. 

International law is also not agile and swift enough to protect against atrocities nor does it carry effective accountability mechanisms. Aid workers considered neutral and covered under the umbrella of the well-established Geneva Conventions in an active war zone have been killed yet the mechanisms for grave breaches have not kicked in. Israel, the party who carried out the killings, has been allowed to mark its own homework and we are expected to accept their version of events. No proper and consistent international response is visible, nor any international accountability mechanism invoked. Under such circumstances subjectivity in law continues to lay fertile ground – for weaker voices to be silenced and for more powerful countries to create false and misleading narratives to avert from the law. 

Post Gaza, the law’s impartiality and its blindness in the pursuit of justice remain on paper only.

In Amarata Sen’s understanding of justice, he argues that professing for ideal justice is limited and exclusionary as it fails to address the everyday injustices faced by people, which hinder the application of the law universally. When discussing the application of international rules and laws the Global South has learnt, through experience, that the social, political and systematic realities of people is the context in which the law is applied. Subjectivity, international allyship and politics come first to determine how the law is used, with fairness and justice mere textbook ideas for Western leaders to bant around. 

So, in the same breath in which we argue the principles of international law and quote the Geneva Conventions we must remember the manifest injustice suffered by the Palestinians – that of apartheid and occupation for the last 76 years and the systemic discrimination and silencing of their demands in the UN, courtrooms, ballot boxes and on the ground. We have forgotten the fundamental principle – that justice must centre the marginalised so as to achieve its goal of recognition, fairness and adequate redress. 

In the spirit of centreing the victims, I would like to end with the names of the 15 aid workers killed by Israel. This is to remember that beyond this post, it is ordinary people that suffer the consequences of the subjective application of the law.

Mohammed Bahloul, Ashraf Abu Labda, Mohammed Al-Hila, Raed Al-Sharif, Mustafa Khafaja, Ezz El-Din Shaat, Saleh Muammar and Refaat Radwan, Palestinian Red Crescent Society. Yousef Rasem Khalifa (ambulance officer), Fouad Ibrahim Al-Jamal (ambulance driver), Ibrahim Nabil Al-Maghari (firefighter officer), Samir Yahya Al-Bahabsa (firefighter officer) and Zuhair Abdul Hamid Al-Farra (firefighter driver), Civil Defence. Kamal Mohammed Shahtout, UNRWA.