Home Archive for category "Israel"

The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

Published on March 22, 2016        Author: 

In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel which was part of the ‘Freedom Flotilla’: the Mavi Marmara ship. The incident saw the establishment of a UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”). The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings both domestically in Turkey, and internationally at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Turkey issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it had decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’ In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. Read the rest of this entry…

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The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

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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. 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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