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Home Archive for category "Israel"

European Court Decides that Israel Is Not Occupying Gaza

Published on June 17, 2015        Author: 

Yesterday the Grand Chamber of  the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?

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Protection of UN Facilities During Israeli-Palestinian Hostilities: A Brief Assessment of the UN Board of Inquiry Findings

Published on June 17, 2015        Author: 

The release of United Nations (UN) documents on Israeli conduct always seems to give rise to controversy and heated debates. However, the latest publication of an UN Board of Inquiry investigating selected actions carried out during the 2014 Israeli and Palestinian hostilities has brought a relatively mild media storm. Israeli‘s acknowledgement of the investigation had already been shown through their active cooperation during the process. The Board’s findings show progress both in terms of quality and approach taken compared to an earlier 2009 investigation into selected incidents during the 2008-09 clashes between the same adversaries. Most importantly, the 2015 Board came up with several recommendations aimed at improving the internal security measures aiding the protection of UN facilities during hostilities. If implemented consistently, these recommendations should limit the abuse of such facilities for military purposes and thus reduce the risk of anyone located there from suffering the consequences of a potential, possibly entirely legitimate, attack.

A summary of the new Board’s report was made public by the UN Secretary General only last April and, like in 2009, the full document was not publicly released. The Board of Inquiry was tasked with investigating incidents which affected or involved UN personnel, premises and operations. The Board was specifically mandated to look into 10 incidents ‘in which death or injuries occurred at, or damage was done to, UN premises or in which the presence of weaponry was reported at those premises’ between 8 July and 26 August 2014. These incidents involved schools of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

Of the 10 incidents, three involved schools where weapons were allegedly stored. None of these had been designated or was being used as an emergency shelter at the time. All three schools were in summer recess and, in principle, free of pupils. But in one of them, a schoolyard had been made available for children’s use. The school gate remained unlocked, allowing unrestricted access. The Board subsequently established that weapons were found on all three premises, as previously reported, and in two cases the weaponry was then removed by unidentified individuals in somewhat mysterious circumstances. The Board suggested that one school might also have been used by members of a Palestinian armed group to launch mortar attacks. The Inquiry further concluded that in the remaining seven cases the damaged schools served as emergency shelters and all these attacks were attributed to the Israeli Defence Forces (IDF). Currently, all but one of these incidents are being investigated separately by the Israeli authorities.

The 2009 Board of Inquiry investigated only four incidents involving UNRWA schools. It attributed the attacks to the IDF in three of these. It is possible that two schools were not directly targeted, and that the resulting damage and casualties occurred as a side effect of an attack on another target. No military activity at the premises was established. The 2009 Board’s recommendations appeared almost entirely directed at the UN’s requests to the Government of Israel and did not include any recommendations about the UN’s own due diligence. The 2015 Board’s report was in stark contrast to this earlier report. It looked into the UNRWA internal security practices and arrangements and proposed a number of improvements to them. These included recommendations to enhance security at premises, such as by employing additional skilled security guards, and developing and implementing standard operating procedures for reporting security incidents. Read the rest of this entry…

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Prolonged Occupation and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally

Published on June 16, 2015        Author: 

I recently gave a paper on prolonged occupation at a UN Roundtable on Legal Aspects of the Question of Palestine.  In the law of armed conflict, the notion of “prolonged occupation” is absent from the governing international instruments.  It has been little discussed in commentaries, and Adam Roberts cautions that attempting to define the notion of prolonged occupations “is likely to be a pointless quest” (see 84 AJIL 44 (1990) 47)), but Israel’s High Court has employed it in a number of decisions.

The UN meeting in the Hague was perhaps a timely meeting given the outcome of the recent Israeli elections which brought into office a government which includes some ministers who are opposed to the existence of any Palestinian State and others who are opening calling for the annexation of the West Bank.  Despite the urging of President Obama, the guidelines for the new coalition government contain no commitment towards a Palestinian State.  The conclusion of the Oslo Accords and subsequently the Roadmap for Peace masked the reality of Israel’s occupation of Palestine with the figleaf of a negotiated process between ostensible equals which, under the Roadmap, was meant to have led to a comprehensive settlement of the Israel-Palestine conflict ten years ago.  As the outlook of the current Israeli government appears adverse to negotiation, this should put the fact of occupation back on the table.

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The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

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Double Duty at the ICC

Published on January 12, 2015        Author: 

After days of speculation, the clouds have begun to clear over Palestine’s strategy at the ICC. Ever since the Security Council rejected a draft resolution on December 30, 2014 designed to upgrade Palestine’s status to full Member State of the UN and imposing a 12-month deadline on a negotiated solution to the Israeli-Palestinian conflict, the media overwhelmingly reported that Palestine signed the Rome Statute. Yet there was no word on the ICC website and no official information confirming these reports.

The uncertainty grew as the holidays came to an end. Finally, on January 5th, the ICC issued a press release. Contrary to all expectations, however, it appeared that Palestine had submitted a declaration under Article 12(3) of the Statute on December 31st. When using this procedure, states confer jurisdiction to the Court on a one-time, ad hoc, basis. By using this procedure, states do not become party to the Rome Statute, the founding document of the International Criminal Court.

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Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

Published on August 22, 2014        Author: 

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. Read the rest of this entry…

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Collective Punishment Receives a Judicial Imprimatur

Published on August 21, 2014        Author: 

In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. al.is significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

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Mapping the Scholarly Commentary on Israel-Gaza Wars 2008-2014

Published on August 11, 2014        Author: 

John Louth, Editor-in-Chief of Academic Law Books, Journals and Online content at Oxford University Press has produced another one of those impressive Debate Maps that they have been creating over the last year or so. This one is about the Israel-Gaza Wars from 2008 to 2014 and it:

“. . . maps scholarly commentary on the international law aspects of the armed conflict(s) between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers, and free content from OUP’s online services other free repositories.

A later update of this map will include consideration of a referral of the situation to the International Criminal Court.

Whereas previous maps attempted to provide comprehensive coverage of blog commentary, this map is more selective due to the time period covered. Comments from readers pointing out important issues and perspectives that have not been included can be sent to john.louth {at} oup(.)com.”

We at EJIL:Talk! have, at least thus far, not had much to say about the current conflict in Gaza. However, as the OUP Debate Map shows, we have have posted extensively on previous manifestations of the conflict between Israel and Gaza. Much of that prior analysis remains relevant to the current conflict. We are highlighting that previous commentary in our “From the Archives” box which is to the left of this post (if you’re on a computer) or below the list of posts (if you’re on a mobile device). As John has not yet included material on the possibility of a Palestinian acceptance of the jurisdiction of the ICC, we have included in the “From the Archives” box some of the previous EJIL:Talk! posts on that issue. We have also included some of the posts on whether Gaza is occupied – an issue of critical importance with regard to the debate on whether Israel has a continuing obligation to supply electricity to the territory. We have also included some of our early posts on proportionality and on the question of who is to be regarded as a combatant in Gaza (here, here and here).

As with the other Debate Maps produced by OUP, this one is to be highly recommended. It is one of the easiest and best ways to get an overview of the legal issues and provides a really useful bibliography of scholarship on those issues. For an explanation by John and Merel Alstein at OUP of the thinking behind the Debate Maps see here and here.

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Apartheid in Occupied Palestine: A Rejoinder to Yaffa Zilbershats

Published on October 2, 2013        Author: 

 

 dugardJohn Dugard (pictured left) is Emeritus Professor of John ReynoldsInternational Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. John Reynolds (pictured right) is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway.

‘Upper Nazareth is a Jewish city and it’s important that it remains so’, wrote its mayor Shimon Gapso last month. ‘If that makes me a racist’, he continued, ‘then I’m a proud offshoot of a glorious dynasty of racists’. Gapso was responding to criticism he had received over his call for the preservation of Jewish Israeli demographic superiority over Palestinians in his jurisdiction. He sought to undercut such criticism by situating his views as merely symptomatic of the core tenets of Zionism. His position, he suggested, is no more or no less racist than Herzl or Ben-Gurion and the pioneering Jewish settlement—with inevitable removal of Palestinians—that they espoused. While Gapso makes this admission of racism rather facetiously, so as to expound the ‘hypocrisy and bleeding-heart sanctimoniousness’ of his liberal Israeli critics, his comments go to the heart of Israeli policy vis-à-vis the Palestinians historically and contemporaneously: colonisation, displacement, and segregation. In pointing to security issues and the diverse political, socio-economic and cultural needs of the two population groups, Gapso essentially reproduces the vision of “separate development” that was central to apartheid in southern Africa. Apartheid was presented by its Afrikaner architects as not about oppression or denial of self-determination, but “separateness”.

Gapso’s comments mark the latest round in an ongoing debate over the role of ethno-racial dynamics in Israeli policy-making, and the nature of Israel’s institutional and legal regimes as they apply to the AbuDisWallPalestinians. They came in the context of the relationship between Israeli authorities and Palestinian citizens inside the state’s borders. They are equally and arguably more prescient when considered in relation to the occupied Palestinian territories, where the narrative of an Israeli apartheid-like regime has gained particular prolificacy in popular and political discourse since the 1990s. More recently, the relevance of the normative prohibition of apartheid as articulated through the specific language of international law has come to the fore. Our article in the current issue of the European Journal of International Law explores international law’s engagement with questions of race, racial discrimination and apartheid. It considers the nature of Israel’s occupation of the Palestinian territories in that light, and concludes that the regime of discrimination and segregation imposed in the occupied territories is of a sufficiently institutionalised nature to be qualified as a system of apartheid. (photo: Israeli wall at Abu Dis, credit)

Yaffa Zilbershats’ reply  to our article roots itself in the familiar refuge of Israeli exceptionalism, and parrots two standard talking points of Israeli government lawyers. The first is that as a mere occupying power, Israel’s behaviour in the Palestinian territories is not susceptible to the same standards by which a sovereign state would be judged. The second is that because Palestinians have committed acts of “terror”, Israel’s behaviour is not susceptible to the same standards by which a sovereign state would be judged. Both of these points are supported by almost exclusive reference to Israeli court decisions.

Occupation and Apartheid: “Apples and Oranges”

Zilbershats suggests that because Israel occupies the Palestinian territories without having formally annexed them (disregarding the fact that in the case of East Jerusalem it has done so), the state is bound there only by the laws of armed conflict. Israel can exempt itself from other spheres of international law, including, apparently, the prohibition of apartheid; its status as a jus cogens norm and explicit inclusion in the laws of armed conflict themselves notwithstanding. Zilbershats argues that, by asserting that regimes of apartheid and occupation can (and do) occur simultaneously, our article is guilty of ‘comparing apples and oranges’.

Apart from erasing several decades of Namibian history, this claim obscures the present reality that Israel’s colonisation of Palestinian territory goes far beyond the image of a temporary occupation that Zilbershats conjures up. With this “temporary” situation now approaching fifty years as the status quo and the settlement enterprise continuing apace, it is not merely a regime of belligerent occupation but also one of expansionary settler colonialism. Read the rest of this entry…

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Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Published on April 3, 2013        Author: 

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation. Read the rest of this entry…

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