The essence of justice, as developed over many centuries by judiciaries and governments, is one of fairness, equality, lawfulness and order. Justice is entwined with individual perceptions of morality, ethics, acceptable norms, laws, penalties, standards and methods of implementation. Justice is therefore an essential element of the social contract whereby a population grants its rulers the authority to act on its behalf, provided those rulers protect both the individual rights of citizens and the common good and interest.
The espoused system of justice is an ideal, seeking to deliver fair and equitable treatment of individuals, encompassing equal rights, protections and opportunities. However, a lot will depend on the prevailing political ideology and system. Authoritarian states, like Russia, Iran, Saudi Arabia, Turkey and others, often fail to uphold justice, despite their claims to the contrary. Individuals with dissenting views or minority identities in these nations may face repression, arrest, imprisonment and even judicial or extra-judicial execution.
Justice in war
In addition to issues of social justice and the array of law-and-order injustices, there is also the issue of justice in the area of armed conflict. A party engaging in war must demonstrate a just cause, justify that war is the last resort after exploring peaceful options, declare war through proper authority, act with good intentions, have a reasonable chance of success, and ensure that the means used align proportionately with the perceived threat and declared objective.
In addition, parties in armed conflict must take the utmost care to prioritize the safety of civilians and to apply humanitarian principles. For example: no deliberate murder or other atrocities against unarmed civilians; no taking of hostages or harming them; no collective punishments of civilians as proxy targets for enemy combatants; no indiscriminate use of bombs, rockets or weapons of mass destruction; no targeting of hospitals, schools, water, fuel and power supplies, food and medical supplies; no denial of safe passage out of combat zones for civilians and priority medical patients; no forced detention, displacement or expulsion of civilians; and no expropriation or theft of land or other assets of the civilian population, whether by state agencies, interest groups or individuals.
The law of war has four guiding principles or requirements:
- Distinction: distinguish as far as possible between combatant targets and civilians.
- Proportionality: prevent excessive loss of life or damage incidental to an attack, disproportionate to military advantage.
- Military Necessity: target only existential and potential military threats.
- Avoidance of Unnecessary Suffering: prioritize humanitarian criteria.
Regrettably, history shows that observation of the law of war regarding civilians is often more in breach. As Bård Drange suggests, victims may have a long struggle to obtain any justice. Combatants often disregard rules, sought to justify their actions and ignored potential war crime charges. Some even cynically argue that they scrupulously observe the four guiding principles despite compelling evidence to the contrary which they deny. Putin’s war on Ukraine and the Israel–Hamas war are contemporary examples.
Of the two identifiable parties to a dispute or conflict, is the position of one wholly just and the other’s position wholly unjust. In other words, is justice in war zero-sum? Sometimes such an unequivocal judgment may be warranted, but quite often both parties may reasonably claim to have suffered injustice at the hands of the other. Responsibilities, liabilities and evaluations under agreements, contracts, laws and norms guide judicial decisions, which might differ from public opinions, partisan stances or populist views.
Nevertheless, in some of the worst cases of injustice, a “zero-sum” argument is precisely what protagonists relentlessly assert. The party with more power typically vehemently asserts its exclusive rightfulness, portraying itself as a paragon of virtue and godliness. Simultaneously, they depict the other party as despicable, pathological liars, entirely untrustworthy and devoid of any redeeming qualities, creating a narrative that attempts to justify their own grievances while vilifying the opposition. Each party may develop an immutable view that justice can only be served by the total annihilation of the other, figuratively if not literally.
In high-stakes disputes, hyperbolic propaganda reigns. In today’s world of instant communication and social media, winning the propaganda battle often means claiming an exclusive right to justice, even if, impartially speaking, it is unfounded.
When we look retrospectively at historical injustices, we encounter at least two main problems:
- Cognitive, emotional and motivational biasing. The”’truth” becomes distorted by knowledge limits, partiality, prejudice and purpose of the observer.
- Causation, forensic accountability and attribution of blame for events, whether in the recent or more distant past. Whereas it is often relatively easy evidentially to attribute causation, partisan arguments are likely to creep into judgments on responsibility and blame.
Things become far murkier the further back in time one examines. Historical revisionism and retrospective rationalization are likely to play a part. Parties may well introduce degrees of fiction and exaggeration into their accounts of past or present situations or events in order to bolster their present claims for justice or to deny the claims of others.
The curse of slavery and ethnic subjugation was normalized for thousands of years by many nations. Many argue that assigning blame and seeking reparations from specific nations in contemporary times proves futile and unjustified, appearing more as an act of retribution than genuine justice. Historical regression has no bounds, and for those demanding reparation, who is to say how far back any alleged obligation should go?
For example: Should the UK make reparation claims against the Italian government for the subjugation, including slavery, of its native population for over 400 years by the Roman Empire? Similarly, should it claim against the French government for the Norman invasion and conquest, including quasi-enslavement of the English peasantry, from 1066 onwards?
Should multiple European countries lay claims against Morocco for the kidnapping and enslavement of their citizens in the 17th century by the Barbary pirates? What about all those peoples and countries conquered and subjugated by Spain for centuries in the Americas — aren’t they entitled to compensation? The absurdity speaks for itself.
Nevertheless, there are many unresolved injustices in more recent history that warrant serious attention. Health care inequalities, wrongful convictions, wrongful deportations, the Rohingya massacres in Myanmar, the opioid addiction crisis, the political curbing of judiciaries, war crimes in Ukraine — the list is endless.
From a wide spectrum of injustices, I will examine two topical ones. The two divergent cases illustrate some of the characteristics of injustice and the difficulties faced by victims in obtaining justice.
Case 1: The UK Post Office’s ongoing Horizon scandal
The Post Office Horizon scandal, lasting more than 20 years, has been described as “the most widespread miscarriage of justice in UK legal history.” In addition to its own larger stations, the UK Post Office contracted with a substantial number, approximately 9,000, of small shopkeepers, particularly in small towns and villages, to provide postal services within their premises. These sub-postmasters are contractually liable for any accounting shortfall involving “carelessness or error”.
In the late 1990s, the Post Office decided to convert its Horizon IT system for the payment of state pensions and benefits into a comprehensive service. Horizon went live in 2000, and within two months large, unexplained accounting variances were being reported at sub-Post Offices. The Post Office then invoked the contract clause for liability for deficits, asserting that “carelessness or error” on the part of the sub-postmaster was the only possible cause.
The number of such cases escalated, with alleged deficits ranging from £1,000 ($1,227) to tens of thousands of pounds and, in one case, over £1 million ($1.227 million). Over the next few years, the Post Office racked up over 700 such alleged cases in which sub-postmasters were coerced into covering alleged deficits and typically were sacked from their Post Office roles. In some cases, the Post Office launched criminal prosecutions for such alleged offenses as theft, fraud and false accounting, and many sub-postmasters were convicted on the basis of “fool-proof Horizon” evidence and jailed and/or fined.
As the number of cases mounted, both the Post Office and its Horizon software provider Fujitsu steadfastly maintained that the software was “absolutely accurate and reliable” and that all the actions against sub-postmasters with shortfalls were fully justified. Nevertheless, by 2012, a growing number of MPs concluded that both the technical reliability of Horizon and the integrity of the Post Office’s and Fujitsu’s senior management were in question.
By 2015, the House of Commons business committee summoned the Post Office’s chief executive, Paula Vennells, to account for why her previous pledge to resolve the Horizon debacle had not been met. Richard Brooks and Nick Wallis reported that her claim to be running a “caring” business and having “no evidence” of any miscarriages of justice was met by “barely disguised derision” by committee members, one of whom described the Horizon affair as a “shambles”. The Post Office and Fujitsu continued to maintain their “paragons of virtue” position and to deny that Horizon was in any way faulty or responsible for the errors and the false charges, false convictions and all the damage to the lives of the sub-postmasters.
However, in March 2017, the High Court of Justice granted a group litigation order to 555 sub-postmasters to sue the Post Office. Over the next two years, in a series of trials and appeals to overturn judgments against them, the Post Office lost in every instance and came in for excoriating criticism by judges. In one judgment in March 2019, a judge described the Post Office as “aggressive,” attempting “to put the court in terrorem,” seeking to “obfuscate matters, and mislead me,” “obdurate” and guilty of “oppressive behavior.”
The judge found the contractual relationship to be unfair in its coercive disadvantage to sub-postmasters. The Post Office then attempted to have him removed for alleged bias and, when this failed, they lodged an appeal. The appellate judge rejected this appeal outright, describing the appellants’ arguments as “misconceived,” “fatally flawed,” “demonstrably wrong” and “without substance”. He stated that the appeal had been based “on the idea that the Post Office was entitled to treat [sub-postmasters] in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory owner.”
Evidence submitted by senior Fujitsu witnesses for the defense was systematically discredited and shown as false, revealing a “party line” conspiracy over many years to hide evidence of the fundamental flaws of the Horizon product that had led to the false charges and convictions. The courts noted that the two organizations had cheated the litigants and lied to them, and that the Post Office’s approach consisted in “bare assertions and denials that ignore what actually occurred … [and] amount[ed] to the 21st-century equivalent of maintaining the earth is flat.”
Following the judgments, the Post Office initially agreed to pay £57.75 million ($72 million) in the settlement, plus its own costs, with the then expected total to exceed £90 million ($110 million). Taxpayers footed the bill since the Post Office operates as a public entity.
Subsequently, hundreds of other victims sought compensation under related schemes, and in 2023 the government announced that each person wrongfully convicted would receive £600,000 ($785,000) from the government. However, overturned convictions (93 so far) are a minority, leaving hundreds of other victims denied full justice. Some have already died, some face destitution, and some have committed suicide attributed to the shame and hardship inflicted on them by wrongful conviction, imprisonment and fines. Justice delayed is justice denied.
In addition, sub-postmasters were authorized to pursue the Post Office for malicious prosecution. More recently, the chair of the Public Inquiry into the scandal cautioned senior officials from the Post Office and Fujitsu that their persistent delay in providing crucial documents might result in criminal sanctions against them. These include perverting the course of justice. Recently, another 50 sub-postmaster victims came forward and have been added to the police investigation into the Post Office for potential fraud and conspiracy to pervert the course of justice.
Many people argue that key figures involved in creating and perpetuating the scandal over so many years should be prosecuted on indictment. The most prominent would be the disgraced former chief executive (and former priest), Paula Vennells, who sanctioned the long-term policy of prosecuting the sub-postmasters and contributed to the cover-up by deliberately misleading and not cooperating with a parliamentary committee over several years of their inquiry into Horizon.
Case 2: The Israeli–Palestinian conflict and territorial rights
If ever there were a case of national and individual injustice, the long-standing conflict between Israelis and Palestinians and their respective rights must surely rank among the most thorny and intractable. I can only attempt to identify the essence of such an immensely complex problem and address the main injustices claimed by each party. Further, I will discuss the most fruitful prospect for a way out for both parties to obtain some justice and peaceful coexistence.
On October 7, 2023, armed Hamas terrorists from the Palestinian enclave of Gaza carried out a coordinated attack on Israel. Over 1,200 civilians were killed and some 240 were taken hostage. The sheer savagery of the Hamas attack shocked and enraged the world. People of all ages, from young children to the elderly and incapacitated, were killed, tortured and wounded in a frenzy of depravity.
In response, Israel launched a defensive campaign to root out and destroy the entire Hamas organization and military capacity in Gaza. At time of writing, the tragic toll on the Gazan civilians has reached at least 23,300 dead and a further 59,400 injured, along with an estimated 7,000 missing, according a January 10 Al Jazeera television broadcast citing Gaza’s health ministry. As the Israeli campaign continues, these numbers will certainly increase.
Israel insists that it has fully followed and respected the law of war and humanitarian requirements, especially the protection of civilians, despite the exceptionally high number of casualties. However, many independent observers, including UN bodies, the UN Secretary General and the UN High Commissioner for Human Rights, warn that both Hamas on October 7 and Israel in its subsequent Gaza campaign appear to have committed war crimes. Indeed, some Israeli officials and others have asserted that there is no distinction between Hamas terrorists and Palestinian civilians, even babies and young children and have likened them all to non-humans who must be eliminated. Extremists such as Hamas, Islamic Jihad and Hezbollah talk in similar terms about Israeli Jews.
The campaign so far has effectively destroyed most of the homes, buildings and infrastructure of the entire North and Central Gaza, including any means to sustain life such as fuel, water, power and food supplies. The Israeli Defense Forces (IDF), claiming that Hamas was hiding in tunnels underneath public buildings, have attacked hospitals. By December, only 9 out of 36 hospitals in Gaza were functioning, with the remainder teetering on closure for lack of fuel and power.
Nearly two million Gazans have been internally displaced. The IDF initially coerced the inhabitants of North Gaza under threat of bombardment to abandon their homes and flee to the relative safety of Central Gaza, and subsequently South Gaza. In both cases, however, Israeli bombardments and ground attacks are the daily norm.
Millions of refugees are now packed into South Gaza. They lack adequate access to shelter, basic facilities, food, water or medical assistance. Prior to October 7, over 500 trucks per day carried essential supplies into Gaza over the Rafah Crossing from Egypt. Now, after no trucks for many weeks, that number is just 120 a day, adding to the unavoidable image of the IDF laying a siege and punitive bombardment to kill, wound, terrify and starve the surviving population into quiet submission. Israel vehemently denies this, insisting that it was all down to military necessity, that any civilian casualties and “inconvenience” are simply unavoidable collateral damage and that Hamas is fully to blame for all this.
Only with great reluctance and following sustained pressure from the US and other allies did Netanyahu finally agree to a short temporary ceasefire and a limited flow of essential supplies into Gaza. What comes next in the IDF campaign in Gaza can only be speculated. Once Hamas remnants in North Gaza had been greatly reduced, the IDF turned to relentlessly attacking Central and South Gaza, although it had previously designated the latter as a safe zone for refugees from Central and North Gaza. And to what end? What comes after? Political scientist John Mearsheimer questions Hamas termination as being their sole objective and suggests far uglier additional Israeli objectives. South Africa went further and laid charges at the International Court of Justice against Israel for crimes against humanity and genocide.
Far-right Israeli cabinet ministers, such as Avigdor Lieberman, Amihai Eliyahu, Itamar Ben-Gvir and Bezalel Smotrich, are pushing an extreme Zionist line. On January 3, 2023, Ben-Gvir and Smotrich publicly expressed their desire to expel Palestinians from Gaza. In their minds, only the elimination of the Palestinian population in the West Bank and Gaza will ensure freedom from Hamas, Islamic Jihad and Hezbollah attacks. The Times of Israel has described the policies and stance of the Otzma Yehudit (Jewish Power) party, to which Ben-Gvir and Eliyahu belong, as “neo-fascist” and likely to make Israel an international pariah. For the far right, a convenient by-product of Palestinian expulsion would be an Eretz Yisrael (Land of Israel) finally almost free of non-Jewish contamination — not only Palestinians but other Muslims as well as Christians and Druze.
Anyone doubting they have extreme views need only consider what Eliyahu said in an interview on Radio Kol Barama on November 5, 2023, which included taking back control of Gaza and moving in Israeli settlers, a position he has since repeated. On the Palestinian population, he said they “can go to Ireland or deserts….the monsters in Gaza should find a solution themselves.” When asked if Israel should drop a nuclear bomb on Gaza to flatten it and kill all the inhabitants, he replied “That is one of the options”. While possibly merely emotional venting, its pathological origin is unmistakable.
Potential expulsion of the Palestinian population into tent cities in Egypt’s Sinai Desert had already been considered in an Israeli cabinet concept document prior to the October 7 Hamas attack. Although subsequently played down by Netanyahu as only a “what if?” document, it indicates a predisposition to regard the Palestinian population as an unwanted and disposable nuisance without rights. It also indicates that Egypt would either be expected to comply readily or be coerced by threat or blackmail, all unlikely to succeed.
How did Israel and Palestine get to this point?
The conflict between Israelis and Palestinians has its roots in 1947, when the British administrative mandate from the League of Nations in 1922 ended. For 400 years under the Ottomans, the land of Palestine had been a patchwork of intermingled Palestinian and Jewish-owned land and communities, with Palestinians being the larger population. In 1922, census data showed Palestinian Muslims as 78%, Christians as 9.5% and Jews as 11.4% of the population. By 1944, the census data show Muslims as 61%, Christians as 7.8% and Jews as 30.4%. This is a reflection of immigration by Jews from other parts of the world as well as the birth of sabras, or indigenous Jews.
Jewish immigration into Palestine came in waves starting in 1881, encouraged by the Zionist movement. Zionism is a cultural-nationalist ideology that uses racial, religious and political ideas to further its aims, the primary one being to create a permanent Jewish homeland in Palestine. This home aims to promote aliyah (“going up”), urging the Jewish diaspora, scattered across centuries due to conflicts, expulsions and anti-Semitism, to return to their historical biblical and pre-biblical homeland of Eretz Yisrael.
Chaim Weizmann, an esteemed scientist and influential early Zionist leader in Europe, effectively championed the Zionist movement. He successfully persuaded Arthur Balfour, the British Foreign Secretary during the onset of the British Mandate, to support the establishment of a national home for the Jewish people in Palestine. Crucially, the short Balfour Declaration also stated: “It being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities or the rights and political status enjoyed by Jews in any other country.”
As mentioned earlier, Jewish immigration to Palestine surged until the conclusion of the British Mandate in 1947. This influx provoked increasing concern and discontent among Palestinians, who feared that the sheer volume of immigrant Jews and their land acquisitions could lead to the eventual domination of Palestine.
Following the British departure in 1947, a swift civil war ensued, resulting in the triumph of the Jewish population. This victory led to a mass departure of the majority of Palestinians — estimated at a minimum of 750,000 — across borders into Jordan, Syria, Lebanon and Egypt, whether coerced or fleeing for safety. Much of their land was expropriated.
On May 14, 1948, the Jewish Agency in Palestine formally declared the creation of the State of Israel, which the Arabs call al Naqba (“the Catastrophe”). Both mass expulsions and voluntary departures of equally fearful Jews from Arab states that strongly objected to the creation of the Jewish state continued for years.
Israel emerged victorious in subsequent wars forced upon it by Arab states in 1967 and 1973, acquiring significant territories from the enemy nations. To date, Israel has steadfastly refused to allow the return of Palestinian refugees, now numbering 5.9 million, of whom the plurality are internally displaced in Gaza (26%) and the West Bank (15%), with the remainder in Jordan, Syria, and Lebanon.
Both Jewish and Palestinian roots in Palestine trace back several thousand years, encompassing the area delineated as the modern state of Israel, which includes Palestine. Thus, both ethnicities can claim a roughly equal general right to live in the same ancestral homeland under the principles of jus naturale (natural law), jus sanguinis (law of bloodlines), jus soli (law of birthplace) and jus gentium (law of nations). This equal coexistence was clearly intended by Balfour in his express wording about the rights “of existing non-Jewish communities in Palestine”, i.e., no community could claim exclusive rights. An inclusionary multi-ethno-religious model with no exclusively Jewish land rights was also proposed by the founding father of Zionism, Theodor Herzl.
In the 1990s and up to 2005, there was a hopeful phase marked by potential reconciliation, setting the stage for a two-state solution that acknowledged peaceful coexistence between Israel and Palestine, acknowledging their respective land rights. However, after 2005 this momentum took a sharp turn in the opposite direction. Modern Zionist ideology has increasingly adopted an uncompromising denial that Palestinians have any right to be in Eretz Yisrael and supporters have adopted a narrative of exclusionary nationalism. To bolster their claim of an exclusive Jewish right to exist in Israel, hard-line Zionists also include a justification of jus divinum (law of God), which asserts that God promised Abraham the land to the Jews alone. This steadfast nationalist assertion has underpinned Israeli government policy for years, particularly escalating under the authoritarian leadership of Prime Minister Netanyahu and through the enactment of the 2018 Jewish Nation-State law.
One obvious problem facing the jus divinum argument is that, unlike other jus arguments, it is not testable against objective facts or data as it relies on beliefs and faith. It is self-serving. It requires everyone to accept that “the truth” regarding exclusive land rights is what today’s ultra-Zionists say it is.
Israelis and Palestinians both have entrenched positions on land rights whereby each regards the other as an unwelcome “cuckoo in the nest.” Does either side have a convincing case?
Professor Chaim Gans of Tel Aviv University has provided a detailed analysis and evaluation of Zionist justice and the right of return of Palestinians in which he concluded that both Israelis and Palestinians had substantive rightful claims to exist in the same territory. Of possible options to resolve this conflict, he concluded that territorial separation was the most likely to succeed and that he made this “as a factual prediction, not just a moral argument.”
Yet various attempts since the 1960s at a two-state solution failed, and it has been stagnant since 2007. Ironically, the Hamas attack on October 7 has spurred international clamor from the US, the G7 and other allies for a two-state solution being the only viable long-term option. Thus far, Netanyahu has totally rejected it, but it may be his only way of ensuring continued US support for Israel.
Justice for all?
That Hamas carried out a monstrous war crime on October 7 is beyond dispute, as is Israel’s absolute right to take defensive measures against further such attacks. However, the impassioned cries of Israeli victims’ families and loved ones, especially about the plight of hundreds of hostages taken by Hamas, have to compete with the shock-and-awe video portrayal day after day of all the carnage of thousands of Palestinian civilians in Gaza.
Israel’s friends and allies strongly support going after Hamas and its fellow travelers Islamic Jihad and Hezbollah, all of whom they see as a hideous bunch of criminal psychopaths who must be eliminated. However, those same friends and allies are increasingly alarmed that Israel’s methodology is extremely reckless in relation to civilian casualties and infrastructure. Many observers question whether the emerging evidence simply supports the official Israeli line that its campaign methods are all necessary, proportionate and humanitarian. Does the Hamas war crime warrant other war crimes in response?
A large majority of American under-50s apparently does not think so, thus putting both President Joe Biden’s current staunch support and longer-term US policy on Israel in question, as well as the US’s international standing. Israel’s vast propaganda machinery seeking to control “the truth” and portray its might-is-right onslaught on the entire Palestinian civilian population of Gaza as being just, righteous, virtuous and civilized only plays well outside Israel to a limited and diminishing audience.
Nevertheless, an often-overlooked section of Israeli society abhors what is being done in their name. With the current raw emotions and clamor for vengeance against Hamas and proxy vengeance against Palestinian civilians, their voice is suppressed and unheard. Yet, when the current rage and vengeful blood-lust among both sides subsides (as it surely will), calm and constructive thinkers, trust-creators and peacemakers will be needed.
Both Israelis and Palestinians must redirect their focus from the past and look ahead to create a mutually beneficial new framework. If the British and Irish governments and the Irish Republican Army could reach an agreement in 1998, ending an almost century-long armed conflict and paving the way for a shared, democratic future for Northern Ireland’s communities, then there’s hope for a similar creative approach between Israelis and Palestinians — if they are both prepared to compromise in the spirit of 80% of something is better than 100% of nothing.
Terrorist groups such as Hamas and their destructive and murderous ideology can no longer have any license or sanctuary anywhere, least of all as self-imposed and unaccountable “protectors” of the Palestinian people. The tyranny of Hamas and similar groups must be dismantled. So too must the despotic authoritarian rule of Netanyahu and his far-right cabinet, accused of establishing an elective dictatorship in Israel. This includes allegations of suppressing judicial independence, endorsing unlawful and violent land seizures of Palestinians, Christians and other minorities by Israeli settlers and perpetuating oppression against Palestinians over many decades.
Will Israelis and Palestinians clear out their respective dystopian blackguards? Will they reject zero-sum? Will they have the strength of character, the moral backbone, the determination and a sufficient capacity to compromise and persevere?
Academics such as Prof. Gans and Prof. Mearsheimer, diplomats such as former Bosnian ambassador Emir Hadžikadunić, the US State Department and a consensus of world leaders and governments agree that a two-state solution is now the only viable way out for both parties. Without a just settlement, what is assured is perpetual conflict, bloodshed and misery for both.
[Madelyn Lambert edited this piece.]
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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