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Gaza Crisis: Of Just Ends and Unjust Means- International Law and the Perils of Whataboutism Gaza Crisis
A trail of destruction in Gaza/Photo courtesy: UNI

Gaza Crisis: Of Just Ends and Unjust Means- International Law and the Perils of Whataboutism

Varun Nambiar | @indiablooms | 17 Nov 2023, 11:31 am

As West Asia (or the Middle East, if you will) slides into yet another fit of the spasmodic violence that has plagued it for the better part of a century, the world has found itself scurrying to form opinions and take sides. 

True to form, nowhere has this trend been more pronounced than in the media and among the self-appointed paragons of virtue in the commentariat. Politicians, activists, and social media users from across the globe have also thrown their lot with one side or the other, taking maximalist positions — appropriating victimhood for their side and condoning any degree of cruelty that is visited upon the other side as ‘just deserts.’

Polarized discourse

Zionists, even supposedly moderate ones such as Israel’s centre-left president Isaac Herzog, have argued that the depravity of the Hamas terrorist attack on Israeli civilians justifies the brutally heavy-handed means the Israeli military uses in Gaza. Herzog was blasé enough to have suggested that the people of Gaza are collectively responsible. Other Israeli leaders have ventured farther, with a minister from the extremist Otzma Yehudit party going so far as to advocate the use of nuclear weapons on Gaza’s defenceless people.

Many ‘progressive’ scholars and civil society groups have adopted an equally absolutist view, effectively in support of the killing, maiming, and abduction of Israeli civilians by Hamas. They have sought to deflect attention to the oppressive Israeli occupation of the Palestinian territories as if the Palestinians’ suffering and victimization at the hands of the State of Israel makes Israeli civilians (and citizens of other countries in Israel) fair game for Palestinian wrath and retribution.

Both these positions rely on a logical fallacy known colloquially as ‘whataboutism,’ or responding to an accusation of wrongdoing by claiming that an offence committed by another is similar or worse. In other words, any discussion on the moral and legal wrongs committed by the side one identifies with is deflected and dismissed offhand by an appeal to the perceived injustice that the other side is supposedly to blame for.

Whataboutism and international humanitarian law

As a legal justification for illegal conduct, whataboutism is untenable. Innocent individuals cannot be punished for crimes allegedly committed by others belonging to the same national, ethnic, or religious group. All people have the right to be presumed innocent until proven guilty, and collective punishments are prohibited under international humanitarian law (IHL). Article 50 of the Hague Regulations annexed to the Hague Convention (II) of 1899 provides, “[n]o general penalty, pecuniary or otherwise, can be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.” Art. 33(1) of the Fourth Geneva Convention (GC IV), accepted universally, is more unequivocal, stating, “[n]o protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” This prohibition means that the violence unleashed by Hamas on October 7 cannot be justified on the grounds that Israeli civilians are collectively responsible for the actions of the government they elected. By the same coin, any assertion that the Palestinians deserve to be punished collectively deserves our opprobrium.

IHL governs the conduct of armed conflict. The four Geneva Conventions form the bedrock of this body of law. They are supplemented primarily by Additional Protocol I (AP I) for international armed conflict and AP II for non-international armed conflict. In addition to these written instruments, a substantial portion of IHL is uncodified and exists as customary international law.

Article 48 of AP I lays down the maxim of ‘limited warfare’ based on the customary requirement of distinction. Parties to an armed conflict must at all times distinguish between the civilian population and combatants and between civilian objects and military objectives. Operations must only be directed against military objectives. Palestine is a State party to the Geneva Conventions and AP I. As an armed group claiming to wage a war of national liberation on behalf of Palestine against ‘alien occupation,’ Hamas cannot shirk adherence to the law of armed conflict. Rocket attacks launched indiscriminately at civilian population centres without due regard to the principle of distinction run afoul of IHL.

Israel, for its part, would do well to respect its legal obligations and avoid recourse to hiding behind technicalities and sophistry. Although not a party to AP I, Israel is bound nonetheless by the Geneva Conventions and customary IHL. Couching its military operations in the grammar of counter-terrorism does not absolve it of blame for its violations of IHL. Israel’s stance that GC IV is not applicable to the territories occupied in 1967 has been rejected by all other states parties to the Geneva Conventions and by the International Court of Justice in its 2004 Advisory Opinion on the Legality of the Wall.

International crimes like genocide, war crimes, and wars of aggression cannot be justified by pointing out that the other side has done worse in the past. The legitimacy and righteousness of a cause cannot afford legal cover to illegal means employed in pursuit of otherwise laudable objectives such as national liberation or the suppression of terrorism.

Implications for the international order

Admittedly, ‘whataboutist’ critiques may provide the impetus for self-reflection by opening space for constructive debates about discrepancies and double standards. For instance, some comparisons in the case of post-2022 Ukraine have shed light on problematic aspects of Western power. Whataboutism in the study of international law on the use of force has engendered new debates on international law's functions and double standards. It has also shed light on the law’s relationship with imperialism and colonialism. Similarly, in migration governance, whataboutist comparisons have highlighted differentiated applications of refugee law by powerful States and the implicit racial biases underpinning these decisions. Whataboutism, as long as it is not used to justify wrongdoing, is not harmful in itself. However, the tendency to use whataboutism to legitimise egregious criminal violence is repugnant to democratic values and an anathema to the rule of law.

Warring sides in protracted ethnic conflicts seldom believe they are not on the right side of history. Both Israel and Hamas are convinced that the ends they pursue are just, and it would be quite beside the point of this article to suggest otherwise to either party. No amount of hair-splitting on the legal and ethical underpinnings of their respective causes can do away with the fact that the law should apply universally.

One shudders to think of the consequences of whataboutism in an ever-so-volatile global political climate. Consider South Asia as a hypothetical example. In 2002, India could have, like Israel in 2023, used the unspeakable inhumanity of the perpetrators of the Kaluchak Massacre (when Indian families and children were targeted) as a ‘whatabout’ to justify carpet bombing Pakistani homes in retaliation. Mercifully, it did not. But the alarming rate at which whataboutism is becoming the norm in the global public discourse, brooks little reason for optimism. If Hamas can justify targeting civilians by branding them ‘settler colonists,’ could Baloch nationalist armed groups not justify an indiscriminate slaughter of Pakistani migrant workers by resorting to whataboutism and terming their victims ‘Punjabi settler colonists’ out to dispossess the Baloch with the backing of the ‘occupying’ Pakistani military?

Two wrongs don’t make a right, as the old adage goes. Mahatma Gandhi rejected the idea that a just cause can be pursued by any means, however immoral, available at one’s disposal. He resolved, correctly, in my view, that evil means can never lead to good ends. An eye for an eye will only make the world blind. A lesson that world leaders and opinion-makers alike must imbibe. The world would rapidly descend into unbridled chaos if all countries and non-state actors were permitted to do what they please, as long as they believe in the legitimacy of a cause and their enemies have employed (or continue to employ) the same or worse means and methods.

All hope of salvaging a just, peaceful, and prosperous world will be lost if whataboutism becomes the norm in our approach to contemporary and future conflicts. Condemning one side’s war crimes and simultaneously justifying equally criminal acts perpetrated by the other side is the thin edge of an ideological wedge that may one day imperil the very existence of a rules-based international order.

[Varun Nambiar is a PhD candidate at South Asian University (SAU). He writes on international strategic affairs and legal issues. The opinion expressed in the article is of the writer who can be reached on varunnambiar10@gmail.com.]

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