Unravelling Gaza through Hartian Analysis

Harshit Goyal


Time and again, Gaza has signed numerous international agreements over a variety of issues but the question still persists, is there an international law for Gaza?


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Introduction

Gaza is a disputed territory in the Middle-East which is in conflict with Israel. After Israel annexed Palestine in 1948, the western part of Palestine i.e. Gaza rebelled continuously for 47 years. In 1995, Gaza was given the power to hold separate elections. When Hamas, a Palestinian organization, won elections in 2005, Israel imposed food, water, electricity etc. blockades on Gaza. In this desperate situation, Hamas sought for international help and signed various treaties such as Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, ICCPR, etc.

In this post, I will be arguing that for the Gaza operating under Hamas, the international laws do not form a legal system for it and remain merely non-legal norms. I will show this by taking the example of humanitarian laws and laws related to human rights. To make this claim, I rely on the two conditions laid down by HLA Hart for the existence of a legal system[1] which are (i) The primary rules which should be generally obeyed by the ordinary citizens, and (ii) The secondary rules which should be accepted by officials.

First, I will argue that the people of Gaza have no general obligation towards the primary rules of international law. Second, I will show that the secondary rules are not complied with by the officials. The scope will be limited to international law pertaining to human rights.

No General Obligation Towards Primary Rules

A primary rule is one which lays down what is offence and what is not. Hart said that the internal view in the primary rule is manifest when there is a ‘social pressure’ to fulfill the obligations towards those rules.[2] Such an internal view doesn’t exist among ordinary citizens of Gaza.

Palestine has signed The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict which restricts the involvement of children in hostilities in its very first article. Still, children are encouraged to attend military training from high school. More than 200 high schools offer graduation program called Futuwwa, to take up arms against Israel. Regular ceremonies are held in which such children show their strength with real ammunition in front of a cheerful crowd of thousands. Apart from this, open advertisements are issued and around 30,000 children are given military training in every summer camp. Hence, the society of Gaza encourages the children to take up arms in real fights which pose the ‘most-dangerous threat’.

Further, though Gaza has signed ICCPR, violence against woman is a social norm. ‘Honour killings’, which refers to the murder of a woman by her family members when suspected of immorality, is a socially accepted practice. A study done in 2011 found that none of the honour killings of the year was reported. When an organization interviewed people (including women) regarding the violence on woman, they said it is a very common practice and declined to do anything about it. A woman’s claim against violence and divorce is socially denounced. In a survey, only 1% of the woman stated that they would report domestic violence.

Though there are a number of incidents, the two examples clearly show that the general demands of conformity and social pressure which HLA Hart talks about as a necessary condition clearly works against the primary rules of international law.

Hart says that an extreme legal system may still exist when there is an internal view in secondary rules but not in primary rules. As long as people comply with the rules, it doesn’t matter that the compliance is based solely on the basis of sanctions.[3] The two instances shown in this section prove that there is no compliance with the primary rules. I will now try to show that there is no internal view in secondary rules and thus there does not exist even an extreme legal system.

 No Acceptance of Secondary Rules

There are four sources of international law: Treaties, custom, general principles, and writings of jurists. Officials of Gaza do not accept secondary rules because of three reasons: there does not exist any rule of recognition of these international laws [I], there is no rule of adjudication [II] and there is no rule of change [III].

[I] No Rules of Recognition

Hart defines a rule of recognition as one which tells us what the rules are and what is the scope of those rules.[4] Though Palestine is just an observer state in the UN, many countries have recognized its legal existence as a separate state. In Gaza, Hamas is solely responsible for framing laws. Despite the elaborate internal laws, there is no legal provision regarding the relation of international laws with the domestic laws as Gaza has still not clarified whether it is a monist state or a dualist state. Such an ambiguous stance is uncommon, as most states have explicit provisions regarding the procedure of implementing international law.[5] Hence, since there is no clear procedure regarding international laws, it cannot be said that the signed treaties have been recognized as a valid rule in Gaza.

Hart said that for a valid legal system, the internal view in the rules is important. A superficial technical commitment doesn’t comprise internal view. This view is manifest through actions like acting as per the rule and criticizing and punishing those don’t act as per it.[6]

By this standard, it cannot be said that officials of Gaza have accepted and recognized international treaties. Though Gaza has signed treaties like Convention on the Elimination of all forms of Discrimination against Women, the laws operating in Gaza are highly discriminatory and against rights of women. For example: as per the penal code of Gaza, a man is given lesser punishment for killing his wife if he suspects her to be immoral. The same is not allowed to women.

Further, though it has signed International Covenant on Civil and Political Rights (ICCPR) which protects the freedom of speech and expression, Hamas has enacted various laws which blatantly curb this right. It was also stressed in the case Toonem v. Australia that the ICCPR has no recognition until and unless the country amends its laws to conform it.

Also, other human rights guaranteed by the ICCPR are countered by the laws of Gaza which allow complete condonation of man accused of committing sexual abuse if the victim of such abuse was hospitalized for less than 10 days. These laws violate article VI of ICCPR, which seeks to protect the right to live with dignity against arbitrary laws.

Arguably, Gaza does criticize other states like Israel for not complying with the international humanitarian laws and thus has an internal view. However mere outward criticism is not enough. For having an internal view, there needs to be self-criticism as well, which is quite lacking.

Apart from this lack of internal view, it can be said that the other sources of international laws like custom, general principles, and writings of jurists, are not recognized because of the inherent ambiguity in such sources. Customs are often indefinite, conflicting and based on subjective elements of the states. The validity of a custom depends on a number of factors like behaviour of countries, decisions of courts, resolutions of international organization etc. It is, therefore, often not clear as to which customs are actually valid. The same is true for general principles as well. Therefore, there exists no rule of recognition.

[II] No Rules of Adjudication

HLA Hart laid down that rules of adjudication shall establish the final and authoritative adjudicatory body.[7] This is not satisfied in the case of Gaza.

Two significant adjudicatory bodies in international law are the International Court of Justice (ICJ) and the International Criminal Court (ICC). ICJ doesn’t have final and authoritative jurisdiction because as per Monetary Gold case, ICJ can decide only when both the parties consent to it and can’t compel any of the parties to produce evidence. The enforcement of decisions of ICJ also remains an uncertainty. Article 94(2) of UN Charter says that in case decisions of ICJ are not complied with, the security council may take measures to enforce them. The peculiarity for the case of Gaza is that it is only an observer state and as per Article 25 of UN Charter the decisions of Security Council are not binding on it. Further, Gaza can’t ensure enforceability because firstly, it is highly difficult for any state to do this and secondly, there remains a risk of veto in Security Council. The US has vetoed in favour of Israel 43 times till now and most of them were against Gaza.

Similar is the case with ICC. Apart from uncertainty about the jurisdiction of ICC to decide disputes of Gaza, ICC has also lacked authoritative power to enforce the decisions. Coupled with equivocal international support, and absence of any enforcement mechanisms within Gaza, the tenacity of any future decision by ICC is extremely precarious.

The tribunals which are established through treaties signed by Gaza also don’t have final authority because either they are not recognized by it (for example, HRC in ICCPR) or because they also depend on the consent of parties and the domestic laws for enforceability.[8] National courts of Gaza can’t enforce any of the awards unless they know the exact relation between domestic and international law, which is not yet clear.

Hart’s theory is sometimes opposed by stating that it’s not valid after the formation of other tribunals after ICJ.[9] But the conditions of Gaza dispel such criticisms and Hart’s rejection of any rule of adjudication in International laws seems relevant.[10]

[III] Rules of Change

Hart defines rule of change as a rule which empowers any individual or body of the individual to introduce new primary rules.[11] No clear-cut rule of change exists in case of Gaza.

Though the treaties which Gaza has signed contain the procedure for amendment, it can’t be said that these rule of change are actually applicable to Gaza. If it becomes a monist state, then amendments of the treaties will be automatically binding on the Gaza. But if it is a dualist state, the lawmaking body of Gaza has to especially amend the laws. Because of the lack of clarity regarding the position of Gaza as a monist or dualist state, there is no clear-cut rule of change in Gaza with respect to international laws.

Regarding other sources of international law, the rule of change doesn’t exist because of their intrinsically rigid nature. Though ICJ in the case North Sea Continental Shelf case held that customs and principles can be changed in a short period of time, the subsequent case Nicaragua v. USA (Merits) explicitly rejected the same. The opinion juris has also been against the instant customary law.[12]  Thus, the only change that can happen is through slow accommodation, which Hart referred to as a position when there is no rule of change.[13]

Therefore, there exist no rules of recognition, adjudication, and change in Gaza and hence there are no secondary rules.

Conclusion

Applying the analysis of Hart, the absence of primary and secondary rules proves that there doesn’t exist any legal system in Gaza for International law. It shows that even after substantial expansion of international laws; effectiveness and universal application has still not been achieved. This dismal state of affairs is something that was unimaginable even for Hart, as he said that his theory regarding international law being a soft law will cease to hold water once the nations start entering into treaties.[14] It is, thus, recommended that the international community takes up this issue to ensure the accountability of states.

The allegiance of Gaza towards international humanitarian laws will have wide-reaching results. First and foremost, it will be a significant step in ensuring human rights to the people living in Gaza. Secondly, if Gaza also comes under the reins of international law, the chances of a permanent solution to Israel-Gaza conflict will increase. Therefore, it is in the interest of common good that an internal view is generated in Gaza as early as possible.

[1] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 116.

[2] Hart (n 1) 86.

[3] Andrew Altman, Arguing About Law (Belmont, 2nd edn., Wadsworth Publishing Company, 2001) 73

[4] Hart (n 1) 92.

[5] For example: India- Article 253 of the Indian Constitution, Netherlands- Article 93 of the Constitution of Netherlands, Germany- Article 25 of the German Basic Law of 1949, France- Article 52, 53 and 54 of the French Constitution, Russia- Article 86 of the Constitution of Russia, The USA- Article II, section 2 and Article VI, section 2 of the Constitution of USA, Egypt- Article 151 of Egyptian Constitution, Syria- Article 104 and 71 of Syrian Constitution, Yemen- Article 118 of Yemeni Constitution, Saudi Arabia- Article 70 of Saudi Constitution, Qatar- Article 68 of Qatari Constitution, Bahrain- Article 37 of Bahraini Constitution, UK- Though the UK doesn’t have a written constitution, the position has been clarified by the judiciary in the case: JH Rayner Ltd v. Department of Trade and Industries [1989] 3 WLR 969

[6] Hart (n 1) 56

[7] Hart (n 1) 93

[8] For example: New York convention also applies only when if both the parties have agreed to it [Article V(1)(d) and is dependent on the domestic laws of the countries Article V(1)(e), V (2) and Article III] Pacific Settlement of International Dispute [Hague I] is also not binding (Article 9) and depends on the consent of the states (Article 14)

[9] Luís Duarte d’Almeida, Reading HLA Hart’s ‘The Concept of Law’ (1st edn Hart Publishing 8 November 2013) 1, 224

[10] Hart (n 1) 214

[11] Hart (n 1) 95

[12] Akehurst, Modern Introduction to International Law (7thedn Peter Malanczuk 1997) 46.

[13] Hart (n 1) 92.

[14] Hart (n 1) 124.


Harshit Goyal is a 3rd-year student at NLSIU, Bengaluru.

Image Source: The New York Times

 

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