Law Trumps Hate? Enforcing Legal Constraints on Use of Force in Armed Conflict in the Face of Literal, Interpretive and Implicatory Denial

Abstract

The rise to power of champions of post-truth politics attests to a social climate in which facts are devalued while sentiment is given great currency. In this environment, there is cause for concern that both facts and norms will be set aside when yielding unpopular outcomes. Such concerns are especially warranted when it comes to holding state servicemen accountable for alleged violations towards persons affiliated with the adverse party to an armed conflict. Promoting accountability in such cases has always posed a challenge and will likely prove all the more difficult in a state of widespread indifference to the truth. With this threat to the rule of law looming in the background, the article looks to experiences from the Israeli-Palestinian context to draw cautionary lessons and raise a call for vigilance. Through analysis of case studies in which Israeli troops allegedly applied unlawful force against Palestinians, it traces a corrosive process whereby regular recourse to ill-founded and unwarranted denial has undermined the enforcement of international humanitarian law and related rules in the occupied territory. Noting that denial persists even in the wake of seemingly compelling evidence furnished by advancing technologies, the article contends that it has fostered a culture of impunity that in turn threatens to bred widespread disrespect, indifference and alienation towards the law and towards its underlying values. The article ultimately advocates for steps to be taken to offset this dangerous outcome.