When does self defence go too far? The question has become an urgent one at international level following the Hamas murders of Israeli citizens and the intense military response on Gaza, leading to many thousands of civilian casualties and an entire population living under threat.
The International Bar Association, “representing the global voice of the legal profession”, is only one of many bodies as well as individuals who have fully recognised both the scale of the Hamas atrocities and Israel’s lawful right to self defence, but who at the same time rightly highlight the international law principles of proportionality and distinction, and the duty to avoid harm to civilian populations.
Distinguished voices, among them Lord Macdonald of River Glaven KC and Lord Pannick KC, have questioned whether Israel has any plausible alternative against a group whose aim is to bring about its destruction. For myself, apart from humanitarian considerations, I question whether tactics such as Israel’s can succeed in eradicating a non-state military adversary. The history of western operations in Afghanistan and Iraq, for example, is not encouraging for such a strategy; and the greater the suffering of the Palestinian people, the more fertile the conditions for Hamas to rise again. Its callous use of hospitals, refugee camps or other concentrations of vulnerable civilians as a shield, calls for a smarter response than one causing large numbers of such casualties.
Former President Obama has urged a different approach with more authority and eloquence than I ever could, emphasising further that the blockade on supplies not only has humanitarian consequences but could play into the hands of Israel’s enemies and undermine long-term efforts to achieve peace and stability in the region. At the same time he calls on all of us to “put our best values, rather than our worst fears, on display”, actively rejecting anti-semitism in all its forms as well as anti-Muslim or Palestinian sentiment, recognising the right to exist of both peoples. “Perhaps most of all,” he concludes, “it means we should choose not to always assume the worst in those with whom we disagree” – making the effort to model the kind of world we want our children to inherit.
I have one more issue of the Journal to edit before I retire. (Next month we will have more detail on the future for the magazine.) Reflecting the Law Society of Scotland’s own values, I have tried during my tenure both to promote best practice within the profession of which I am proud to be a member, and to advance respect for rights at all levels but in particular those of the individual against the state. We should stand up for what is right, irrespective of the response; and it pains me deeply that governments have so frequently belittled human rights and those who attempt to defend them. But whatever the context, we must never give up on them.