Hermès Marangos discusses the ongoing conflict in the Middle East and international law jurisprudence from the insurance market in Insurance Day

It is with trepidation that I have even considered responding to this request for information and legal materials the insurance industry has at its disposal that speak in any helpful way to all those suffering during the ongoing conflict, and what it says about the present situation in the Middle East.  However, the industry has long experience dealing with political violence in that region, and in so doing specialist courts and tribunals had to be thoughtful, objective, precise and careful in identifying the exact nature of political violence. In fact, the jurisprudence that developed in both private and public international law on war and terrorism is extensive and of assistance to all those looking for an end to this conflict through a rules-based system, once and forever.

Given the ongoing disturbing situation, my comments are confined to highlighting where relevant materials were made public or are now in the public domain from trials and specialist arbitration hearings specifically dealing with war, civil war, guerrilla warfare, insurgency, invasion, terrorism, insurrection, and other political violence terms.  This jurisprudence can be useful to all those who are looking to the operation of the rule of law and any guidance therein on the treatment of political violence and the legal principles relevant to bringing armed conflict to an end.

I refer specifically to detailed jurisprudence analysed in the cases of Mondelez v Zurich et al (2023) and Merck v ACE et al (2024) both in relation to war and terrorism and the manner in which the law distinguishes military from terrorism attacks, including those with a military related cyber component, both in relation to the state and non-state actors involved, as well as in relation to the exact political violence perpetrated.

I also specifically refer readers in relation to terrorist organisations and their terrorism acts, the private and public international law jurisprudence discussed in the case of Universal Productions v Atlantic Insurance (2019) and the applicable principles on political violence perpetrated by a nation state or an entity with the attributes of a sovereign versus similar acts perpetrated by a non-state actor, of relevance to Hezbollah and Hamas respectively.  This line of cases is also relevant to additional parallel or sequential political violence and the correct legal interpretation of rebellion, revolution, insurrection and civil commotion assuming the proportions or amounting to an uprising.

Anyone impacted by the conflict in the Middle East can also consider materials released in the public domain from various arbitrations before leading jurists in private and public international law dealing with deaths and destruction during previous Israel/Palestine/Iraq/Kuwait/Syria and other Middle Eastern conflicts that refer to the Spinney’s (1948) Ltd v Royal Insurance (1980) and Holiday Inns v Aetna Insurance (1983) Beirut civil war cases decisions.  There are also materials released in the public domain on principles reiterated in the World Trade Center line of cases and war and terrorism provisions post the introduction globally of NMA2918 and clauses with a similar architecture, also on how causation and remoteness operate under these bespoke clauses. It is worth noting that failure to apply such technical meanings leads to wrong conclusions and decisions.

As we saw with the release of the arbitration decision in the Dawson’s Field dispute in 1972 where Michael Kerr QC was sole arbitrator, the industry via agreement can make public the decisions and materials from political violence related arbitrations.

Beyond also analysing matters that do emanate from behind closed doors, specialist insurance and reinsurance arbitrations or hearings with those involved in those matters, considering the details of the laws of war as analysed in these commercial insurance disputes can also assist when looking at reconstruction and humanitarian programmes where, as one recently saw in Lebanon, were undertaken via extensive support from the insurance and reinsurance industry.

The insurance industry, with its extensive resolution of private and public international law disputes - within and across the territories - has acted as a catalyst for socio-economic development and mutual cooperation across state boundaries.

The industry jurisprudence has contributed greatly to solid international law principles that are desperately needed right now. I have also seen in practice on sensitive issues involving state and self-determination rights that the industry’s practices and discipline pulls people from the brink and back into a rules-based discourse.