Gaza Conflict- Application of International Intertemporal Law Changing Indian Positions?

The recent Hamas attacks on Israeli civilian targets and the taking of women and children as hostages as a protest to Israeli interference in the Al-Aqsa Mosque complex has added one more armed conflict situation, constituting a serious breach of World Peace. It is true that by the end of the 19th century, the Israel population did not even have 2% of the Jewish population. It was essentially a Palestinian territory. Palestine then was a part of the Ottoman Empire. After the First World War, Britain took over the administration of Palestine, encouraged Jewish settlements, and aided the creation of a Jewish state. Between the First and Second World Wars, Jews around the world gravitated to Palestine (as it was known then) and started acquiring properties aggressively. We have to recognize that prior to World War 2, there was no right to self-determination. The purchase of properties was at par with military conquests, and both were legal. After the Kellogg-Briand Pact and the subsequent establishment of the United Nations, war as an instrument of national policy was prohibited. Genocide became an international crime. The UN at the time had a specialized agency called the Trusteeship Council. But the UN General Assembly resolution on the Declaration of Granting of Independence to people under Colonization conferred on humanity the right to self-determination. When the British mandate over Palestine expired, the people of Palestine would have acquired the right to self-determination in due course of time. This would have meant an independent Palestinian state. However, the global banking lobbies had other plans, ably assisted by the United Kingdom, USA etc. Unfortunately, Hitler, through his senseless genocide, convinced the scattered population of Jews worldwide to unite and establish a homeland in the territory from where Judaism and Christianity originated. Admittedly, even today, the share of secular non-believing people in the Jewish community is much more in comparison to other established religions such as Christianity, Islam, and Hinduism. As a resident of Bharat, I like to record that Buddhism and Jainism were the first rational religions of the world. Both religions did not believe in Gods but demanded that humans should behave in an ethical and righteous way without looking for salvation or an honourable place in heaven. The onslaught of God-believing religions on these two ancient Indian religions that did not believe in God was so much that at least in India, Hinduism encompasses Buddhism, Jainism, and even Sikhism, which were then believed to be different and independent religions from Hinduism.

Phillips E Jessup, a distinguished American International Lawyer, in his very famous book 'The Price of International Justice'(New York: Columbia University Press, 1971), describes the birth of Israel as some kind of illegitimate child in the Family of Nations. Admittedly, at the end of the First World War, less than 5% of the population of the present Israel-Palestine region was practising the Jewish faith. By the end of the Second World War, this number increased to about 25%. By 1948, Israel became an independent Jewish country. Palestinians were naturally furious and felt that their homeland was taken away from them unlawfully because the colonial master Britain (supported by European and American banking lobbies) desired an independent homeland for Israel. Palestinians have been fighting against this for more than 70 years now, against the creation of Israel. Their allies have changed-But the fight continues!!!

INTERTEMPORAL LAW AND ISRAELI CONFLICT

In International Law relating to disputed territories, there is a doctrine called intertemporal law. This doctrine addresses the question of a dispute that persists over a few centuries. Over a period, changes relating to particular principles of International Law take place. This poses a special difficulty. For example, the acquisition of territory by conquest was valid in 1910. By 1940, it became illegal. The dispute may come for adjudication in 1960. In this scenario, which of the legal principles would decide the dispute? In the Island of Palmas Arbitration (1928), Judge Huber held that the Spanish claim to title by discovery has to be tested in the light of the US claim that it had inherited the territory in the light of legal principles prevailing in the 16th Century when the discovery was actually made. However, recently the ICJ in the Aegean Sea Continental Shelf case (1978) declared that the phrase 'disputes relating to territorial status of Greece contained in Greek reservation to the 1928 Kellogg-Briand Pact should be interpreted in accordance with the rules on International Law as they exist today and not as they existed in 1931’. This will naturally result in a legal conclusion that though the dispute originated long ago, it will be settled in accordance with the law that prevails at the time of resolution. This would change the narrative in favour of Israel. Today, international law of war and armed conflict clearly prohibits acts of terrorism; intentional attacks on civilian non-combatants and hostage-taking for achieving political objectives. In fact these offences punishable under international law by the International Criminal Tribunal. Hence, the trigger provided by Hamas by its recent attacks on Israeli civilian targets puts Israel in the position of a wounded righteous soldier who will naturally assert his rights of self-defence by resorting to Reprisals in the Gaza territory.

Actually, when I was a young learner of International Law, I sympathized with the people of Palestine. My views were also influenced by the fact that successive Indian governments during the first 40 years stood behind Palestine. India did not even recognize Israel for a long time. It took even longer to establish diplomatic relations with Israel. There was a time when the Indian passport was not valid for travel to countries such as Israel, South Africa, and Namibia. Then Israel, but today, Mr Narendra Modi's government was one of the first nations to express solidarity with the state of Israel and condemn the acts of Hamas terrorist violence. However, the Indian National Congress under the present leadership had expressed solidarity with the Palestinians of Gaza and demanded Israel exercise restraint and ensure observance of the rules relating to International Armed Conflict. Even Mr Modi’s Government insist on Independent full-fledged Palestine nations with mutual territorial adjustments.  

To begin with, the Palestinian Independence movement was homegrown. It was then known as the Palestine Liberation Army. Thereafter, there was an Arab coalition demanding justice for Palestinians. Arab nations, in an ostensible attempt of their right to collective self-defence, initiated two major wars against Israel. Even Saudi Arabia imposed an oil embargo against the US in solidarity with the Palestinian cause to compel the United States to distance itself from the Israeli subjugation of Palestinians. They were defeated very badly. Israel established itself as a strong military power that has demonstrated its guts to defy even superpowers and realize its sovereign objectives. On the other hand, individual Arab countries have realized that they cannot mess with Israel and thought it fit to normalize their relations with the state of Israel. The Abraham Accords, bankrolled by the United States of America, reflect this trend. Thus, it is correct to say that Palestinians do not enjoy the same level of economic and military support from fellow Arab nations.

Today, only the Islamic Republic of Iran is an unconditional supporter of the cause of Palestine. Even they deny their direct involvement in this conflict. Countries like the European Union and even India have committed substantial non-military humanitarian aid to Palestinians living in autonomous regions like Gaza. Yet even they had to take a nuanced position that the military wing of Hamas cannot be reflective of the political will of Hamas that rules the Gaza Strip. Admittedly, Israel has been facing real existential threats since its inception by one or the other entities such as the Palestine Liberation Army, later secular and socialist Palestine Liberation Organization, PATA, Hamas, Hezbollah, etc. The Palestinian Liberation Movement today is fully controlled by people who strongly believe in the supremacy of the Quran and Allah and further declare all other Kafirs have to be eliminated in the ever-continuing holy Jihad. In fact, the present-day Palestine Liberation Movement, unlike the PLO (Palestine Liberation Organization) headed by Yasser Arafat, is no longer socialistic or secular. The Islamic theocratic leadership that we have in Iran and Afghanistan has caused a perceptible panic even among other Islamic/Muslim countries. In fact, these organizations have expressed support for Pakistani claims over Kashmir and have vowed to facilitate the right of self-determination of Kashmiri Muslims.

The Foreign Ministry of India knows fully well that in International Relations, you have a permanent interest to protect. Ukraine had traditionally supported Pakistani positions and even sold weapons to Pakistan and now buys ammunition from Pakistan. Naturally, the Government of India thought it fit to take the first available opportunity to remind both of them that the Union of India will adopt a policy that will facilitate the realization of their local and global policy objectives. In short, I would say that the recent ghastly acts of terrorist violence by Hamas aided by Iran are international crimes warranting prosecution before the International Criminal Tribunal. Hence, the act of declaration of war against undisclosed enemies by the Israeli leadership is a calculated ploy. Though they have not disclosed the enemies, you can be sure that Israel will address the threat from Iran and, if necessary, from Lebanon as well. That is why the State of Israel has not named its enemies.

However, I would still believe that there must be a dialogue by picking up the lost threads woven by the Oslo Peace Accords. If there is a real god, this just prayer must be fulfilled. But I am not sure there is a god, though the present divided world believes that there are many, and their own god is superior to the other gods. But whether there is a god or not, I would expect the nations to follow Dharma or righteous conduct. To Diplomacy it is called enlightened self-interest.