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Reflecting On The Law

Published: Thursday July 24, 2014 MYT 12:00:00 AM
Updated: Thursday July 24, 2014 MYT 6:49:44 AM

Victims of proxy wars

THIS has been a fortnight of horrible savagery. Israel is continuing to butcher children, women and civilians in Gaza in its third war against Gaza in six years. In East Ukraine, the proxy war between Russia and the West has brutally claimed the lives of 298 innocent passengers of MAS flight MH17.

In Northern Iraq, the renegade, self-proclaimed Islamic State (IS), which is sponsored by some Sunni Gulf states, is conducting a fratricidal war against the Syiah government of Iraq. On the sidelines, it is indulging in flagrant violation of international law and the spirit of Islam by persecuting the small Christian minority in Mosul, Iraq’s second largest city, and causing it to flee its ancestral homes.

Israeli aggression

For more than 65 years, the genocidal state of Israel has converted the fragmented territories of Palestine, especially Gaza, into a huge prison. There are apartheid walls and hundreds of checkpoints on Palestinian land to prevent the free movement of children to schools, farmers to their farms and the sick to hospitals. Some roads are reserved for Jews.

Water is undrinkable. Fuel shortages are endemic. Sanitation plants often shut down and waste floats in the streets.

Economic blockades prevent essential goods from reaching the population. Intolerable living conditions exist and much of Palestine is a veritable hell. All borders, skies, coastlines, roads and water resources are controlled by Israel.

An example of Israel’s inhumanity is that though it collects taxes from Palestinians, it refuses to pay the salaries of the 43,000 civil servants who work for the elected Hamas government. Qatar offered to pay these starving public servants but Washington warned against that. A United Nations envoy offered to deliver the salaries through the UN but Washington and Israel called for the envoy’s expulsion.

The unspoken reason for the present military action is that in April, a national consensus government was forged by Hamas and the Palestinian Liberation Organisation. Any unity between the Palestinians is anathema to the Jewish state, whose inarticulate aim is to force the Palestinians to migrate, exterminate or strangle those who stay behind.

Under such oppression, the Palestinians occasionally retaliate with crude, home-made rockets and weapons. Israel uses such opportunities to pulverise them with missiles and rockets supplied or funded by the United States.

In the present blitz, more than 500 Palestinians have been killed, 70% of whom are women and children. Israel has lost 13 soldiers.

When such massacres take place, peace laureates and moral guardians in the West urge restraint and chant ritualistic mantras about “Israel’s right to self-defence”. But they close their hearts to the fact that no human being can endure such oppression and brutalisation as the Palestinians have for six and a half decades. At some point in their lives, even the meekest prefer to die on their feet than to live on their knees.

While genocide and crimes against humanity continue and the Geneva Conventions and the US Arms Control Export Act are violated by Israel, the US Congress continues to grant massive economic support of up to US$4bil (RM12.7bil) per year to Israel, approximating 25% of Washington’s Foreign Aid Budget.

Downing of MH17

This horrendous tragedy brings in its wake a number of important though contentious legal issues.

Malaysia Airlines might face global negligence lawsuits for taking a flight path right above the cauldron of conflict, where an SU-25 fighter and an AN-26 transport plane were downed just a few days before MH17’s destruction.

“Negligence” is a legally defined term and generally refers to what a reasonable company would have done under similar circumstances. A week’s data of flights over the Donetsk region prior to the shooting indicates that 66 airlines, including Lufthansa, KLM, Aeroflot and Air India negotiated the corridor safely.

Singapore used it 75 times, Aeroflot 86 times and MAS 48 times. Only a handful of airlines like Qantas and all US airlines avoided the area.

The airspace in question was not closed off by any international or national authority. The corridor MAS flew in was assigned to MAS by Ukraine’s aviation authority and approved by the International Civil Aviation Authority.

Hefty insurance payouts will have to be given and much will depend on the type of policies involved. Basic insurance coverage for air travel does not include acts of war and terrorism. However, under the Montreal Convention of 1999, airlines have to pay US$175,000 (RM555,000) for each passenger killed in any air accident even if it is caused by war or terrorism.

The families of the 15 crew members of MH17 who perished will be eligible for compensation under Malaysia’s social security laws like Socso.

Can the UN Security Council order the authorities in Kiev, Moscow and Washington to declassify and release raw military data about the shooting down of MH17? As Dr Chandra Muzaffar has pointed out, this would help the investigation immeasurably.

Is it not clear under international law as to who has the authority to appoint the impartial, international investigators and whose writ runs large over the site of a plane crash?

If the investigation implicates Russia, the Moscow-backed rebel commanders, Ukraine or an unknown fourth party, can the culpable individuals be hauled up before the International Criminal Court for crimes against humanity?

Regrettably, neither Russia nor Ukraine (or for that matter, the United States and Malaysia) have ratified the Rome Statute. This means that the crime was not committed on the territories of a member state.

The UN Security Council has the power to refer crimes committed by a non-signatory to the ICC. Unfortunately, Russia has a veto.

Can Russia be held accountable for the tragic downing of MH17 because of its supply of missiles to pro-Russian separatists? If the answer is “yes”, then on the same principle, can the United States and Europe be held liable for the pogroms regularly committed by Israel in Palestine, Syria and Lebanon with monetary, military and political aid from the West?

Whatever theory may hold, disappointing answers await us in reality. Though the tide of international law is gushing up on every shore, the existentialist reality is that international law catches flies but lets the hornets go free.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The views expressed here are entirely the writer’s own.

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