What 'top lawyers' got wrong on Palestinian recognition

The National

2 days ago

These warnings came from what was described as 'top lawyers' – 40 members of the House of Lords, including several high-profile barristers with enough letters before and after their name to populate a small alphabet.
Lawyers, as you may have noticed, are one of those professions where any lawyer deemed worth quoting on any topic is automatically classified as 'top'. Try and think of the last time you ever saw a barrister or advocate described as one of the 'bottom KCs' in the stable, and you'll ponder in vain. Journalistic cliché has its catechism, and the cub reporter can only follow its rules. This approach sometimes produces absurd results.
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I remember, as a callow PhD student in the 2000s, one arch-Unionist newspaper picked up on a blog post I'd written, critical of some aspect of Scottish Government policy of the day. In their write-up, I was described as a leading 'boffin' – like 'revellers', a curious species which only exists inside the pages of tabloid newspapers – who'd 'blasted' the hapless Holyrood regime.
On any objective analysis, what I'd written was a fairly well-informed reflection as a minnow swimming in the shallow end of legal academia – but because the paper liked the critical line I was advancing, I was polished up, puffed up, and field promoted in my mid-twenties to the status of 'top lawyer'.
In this case, however, many of those reported to have added their signatures to this menacing message to Keir Starmer are lawyers of significant eminence, including established academics in the field of international law, leading silks coming down with experience of advocating in the highest courts in the land, and even one former Supreme Court judge.
And given all this legal eminence, it is sad to see them putting their names to hokum like this, which most of the signatories must know is a transparent distortion of the true position, pitched in a way which is not only guaranteed but apparently
designed to be misunderstood. I can't think of a clearer example in recent years of the cynical exploitation of real expertise to push a feeble argument for nakedly ideological reasons.
Politically, Starmer's intervention has prompted a range of reactions. First, why the conditionality? Why should recognition of Palestinian statehood be contingent on what the occupying power does or ceases to do to its civilian population? The International Court of Justice recently recognised 'the right of the Palestinian people to self-determination, including its right to an independent and sovereign state'. This includes its territorial integrity. If the Palestinian people already have these rights as a matter of international law, why should the UK wait for an Israeli ceasefire before recognising them, or delay full recognition if the killing stops and basic necessities begin to flow back into the region? In law and in politics, neither stance is logical.
You might also ask yourself where precisely the line is being drawn on 'intolerability' by the UK Government. Why here? Why now? Experience over the past year suggests Starmer and those around him have remarkably strong stomachs for violations of conduct actually prohibited by international law, such as the use of lethal force on civilian populations and indiscriminate deployment of deadly munitions in urban areas occupied by men, women and children who cannot be classified as combatants.
The problem for our 'top lawyers' is that they're making bricks without straw. Their main argument is that because Palestine might not meet the criteria for statehood identified in the Montevideo Convention – an international treaty the UK has not even signed – then it would be unlawful for the UK to press ahead and extend diplomatic recognition of the Palestinian regime.
They argue that Palestine lacks a permanent population, clearly defined territory, a specific government and the capacity to enter into relations with other states – and therefore shouldn't be recognised as one. For the purposes of this intellectual exercise – and that's exactly what this intervention amounts to – we are apparently not to think about how all these population displacements and territorial encroachments on Palestinian territory might have happened and who might have been responsible for them.
It isn't just the weakness of the underlying argument which rankles. It is the cynical framing. Describing recognition of the state of Palestine as 'breaking' international law might imply to the average reader that the UK might face some kind of criminal sanction or judicial challenge if the Government recognises Palestine. It won't. It can't. That isn't how it works.
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[[UK Government]] ministers are quite right to push back hard, underscoring that this is a political judgement for states to exercise. To give you some kind of context on exactly how persuasive these 'top lawyers'' analysis is internationally, [[Palestine]] is already recognised as a sovereign state by almost 150 members of the United Nations. In total, there are only 193 member states of the UN. You work out the percentages. If these legal peers were right, that's a lot of breaches of international law nobody noticed before. The intervention is pure pettifoggery.
The top lawyers must know this. It is the kind of basic legal fact which you must have tripped over in that long climb to the top, which won you your ermine macintosh and all those magic post-nominals.
This story is a little microcosm of the uses and abuses of legal ambiguity in thinking and reporting on what has happened in Gaza over the past two years. A huge amount of energy has been expended online and on air asserting, denying and quibbling about whether or not what is being done by Israeli forces to the civilian population in Gaza meets the legal tests for genocide under international law.
Article II of the Genocide Convention defines the international crime of genocide as encompassing 'any of the following acts' committed with intent to destroy a 'national, ethnic, racial or religious group' in 'whole or in part'. Prohibited conduct includes killing members of the group, causing serious bodily or mental harm to them, or 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part'. The definition also extends to 'imposing measures intended to prevent births within the group' and 'forcibly transferring children of the group to another group'.
Language matters. What we call things matters. Allegations of genocidal violence are dire ones to make. But an extraordinary wattage of intellectual energy over the past two years has gone into disputes over whether this threshold has been reached – as if it is the only legally and morally significant issue at stake in Palestine.
This illustrates what a powerful distraction legalistic reasoning can be. Imagine you're sitting in your office and a masked man kicks in the door. He's armed with a gun, and opens fire, killing one of your colleagues. If my first reaction to this terrifying event was 'that man just violated Kenny's right to life', you might well think my legalistic mindset had got the better of ordinary human reactions to witnessing violence like this, and finding the right words to describe what you saw. If I immediately started quibbling about whether the shooting was murder or culpable homicide, you might reasonably think I'd missed the enormity of what I'd just seen.
This should be a moral caution. Legal analysis can sometimes have a powerful distancing effect, transforming living people into bloodless abstractions, and tales of human horror into fine conceptual disputes over nice points of law. It can do so in a way which doesn't recognise and capture an injustice, but actually obscures and distracts from the evidence of our own eyes and a full moral engagement with what you witness.
If there is any consolation here, it is that it won't work. Throughout this conflict, ordinary people across the United Kingdom have demonstrated a much keener sense of the injustice being visited on the civilian population in Gaza by the IDF than the UK Government, the Conservative opposition and the tangled web of increasingly manic media opinion formers, who are still trying to persuade the public that their concern about dead, dying and amputated and malnourished civilians somehow represents support for an extremist cause, or amounts to an unjust and exaggerated critique of Israel, itself in some versions of the argument amounting to a form of antisemitism.
'Technically, we are not committing genocide but only systematic violations of international humanitarian law against the civilian population' may not be the persuasive defence argument some very online lawyers seem to think it is. This is one kind of stupidity that only very smart people fall into. Most people, mercifully, have more sense.