Leigh Brosnan: In Gaza we are witnessing war on consensus reality

Karen Moynihan, Caoimhe Butterly, and Leigh Brosnan on board legal support boat Shireen, holding images of Palestinian female journalists, from left, Shireen Abu Akleh, Bisan Owda, and Hind al Khodary.

I am sailing to Gaza on board the Shireen, a legal support boat that is accompanying the Global Sumud Flotilla to Gaza. I am joining this boat because as a legal practitioner, I hold true to the fact that law must be used to right the wrongs of oppression we see globally in the 21st century.

Our boat is named after Shireen Abu Akleh, the assassinated Palestinian journalist, with the blessing of her family.

The Shireen carries lawyers, human rights analysts, and genocide scholars, in addition to a seasoned crew, from Ireland, South Africa, Canada, Britain, Syria, Croatia, and France. The legal team will accompany the Global Sumud Flotilla to witness, monitor, and document any human rights violations or acts of aggression against participants and vessels.

My Irish colleagues on board include fellow barrister Gemma McLoughlin Burke, MEP Lynn Boylan, and psychotherapist and human rights campaigner Caoimhe Butterly. The Shireen is crewed almost entirely by female sailors and crew who have worked in refugee search and rescue.

Law can be, and as we have seen in Germany, the US, and the UK has been, weaponised. Routinely using excessive force on protesters, including Irish citizen Kitty O’Brien, revoking student visas, and the proscription of Palestine Action and its supporters all illustrate a concerning, emerging pattern of erosion of civil rights, such as the rights to assembly, association, and free expression.

As a lawyer, I say it is imperative that those versed in the law take a firm stance on this pattern of rights erosion, by applying international law to the readily available facts. 

I fully support civil society mobilising against live-streamed war crimes and genocidal acts in Gaza, and equally support those standing on the right side of history being labelled and criminally sanctioned as terrorists. For me, justice is truth in motion. Law must be embodied, it cannot remain an intellectual exercise or a rhetorical device. Solidarity must be a verb and every human, every global citizen has a duty to speak up.

The Global Sumud Flotilla sees dozens of boats with participants from 44 countries currently sailing through international waters towards the shores of Gaza. The aim is to break Israel’s illegal blockade and open a vital humanitarian corridor through which sufficient aid can flow.

Palestine is the lynchpin for unravelling what has been an apartheid global legal order. Our world systems of political representation and ‘rightness’ have failed us. 

Both democracy and the rule of law exist as hollowed out versions of what they could and should be. 

I cannot live in a world where might is right and stronger, more resourced states have boundless latitude to bully other territories into submission. I cannot passively stand by while legal systems are distorted and manipulated to serve the interests of a few Western leaders, at the cost of other nations’ right to self-determination.

In terms of the international law applicable for the Global Sumud Flotilla mission, starvation as a weapon of war is unlawful. This is enshrined in the Genocide Convention and Geneva Conventions, Rome Statute, and San Remo Manual and most recently in Resolution 2417 of the UN Security Council.

The use of blockades by Israel is unlawful, on both land and sea. An Occupying power does not have a legal entitlement to impede the flow of aid to civilians under any circumstances.

All participants are ‘protected persons’ under the Geneva Conventions (Article 4, fourth convention) and any interference with them carrying out their mission would be unlawful and engage the liability of Israel.

Even more simply, under Article 19 of the UN Convention on the Law of the Sea and international customary law, all vessels and their passengers have a right to ‘innocent passage’ through territorial waters. While Israel has not ratified the convention, customary law binds every jurisdiction in the world.

In terms of the global legal order, Palestine is the canary in the coal mine of how true the ideal of equality is on the global stage. International humanitarian law must apply equally to all humans without fear or favour.

Will we tune into what our instincts say about ‘terrorism’ and ascribe to its logic intuitively, or will we rely on the inverted legal definitions of co-opted politicians?

A protester waves a Palestinian flag in support of the Global Sumud Flotilla as it arrives at the port of Sidi Bou Saïd in Tunis, Tunisia, on September 7. Picture: Anis Mili/AP

Throughout the 19th and 20th centuries, a body of legal morals and principles developed into what is referred to as international humanitarian law. It boils down to the bare minimum agreed treatment of civilians during armed conflict. It comprises what are called ‘negative rights’, meaning they should have a preventative effect.

The International Court of Justice (ICJ), in its binding provisional measures of January, March, and May 2024, has found that Israel’s military activity in Gaza constitutes a “plausible risk of genocide”. On July 19, 2024, an advisory opinion by the court stated that the Occupation of Israel in Palestine in and of itself is unlawful.

These strong judicial findings, when set against the prevarication of a vast majority of state leaders in the Global North to take concrete action diplomatically or economically, cast doubt on the willingness of states to uphold international law, when it is inconvenient to do so.

The definition of genocide is harmful acts committed with the “intent to destroy, in whole or in part, any national, ethnical, racial or religious group” (Article II(C) of the Genocide Convention). Israeli cabinet members have expressed that intention, and the world has seen the results. By definition, what we are witnessing in Gaza is not a war, it is a genocide.

However, I believe there is a war on consensus reality. Extremely biased media coverage is assaulting our capacity to ascertain true facts. There is an affront on semantics, whereby a false distinction between ‘prisoners’ and ‘hostages’ perpetuates a mass smear campaign against Palestinians. We cannot let truth be undone in this way.

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In Ireland, we have many potential avenues vis-à-vis the positive obligations imposed on us through our ascension to the Genocide Convention and ICJ measures and opinions referred to above.

It could look like clear, consequential action to boycott, divest, and sanction Israel. It may look like enacting a comprehensive Occupied Territories Bill by including trade, as opposed to just services. Or it could mean investigating the use of Shannon Airport and our ‘neutral’ airspace for the transport of weapons of war.

• Leigh Brosnan is an asylum barrister based in Dublin. She sits on the executive committee of the Socialist Lawyers Association of Ireland and is a member of Irish Lawyers for Palestine.