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Home Archive for category "Israel" (Page 4)

Legal Issues Raised by Israel’s Blockade of Gaza (UPDATED)

Published on June 2, 2010        Author: 

In this post I simply want to direct readers to places where they can read about the legal issues raised by the Israeli blockade of Gaza and about Israel’s attempt to enforce that blockade earlier this week. I am sure we will return to these matters on EJIL:Talk! in the next few days. Douglas Guilfoyle, who has written several posts on this blog on issues relating to maritime interdiction has a piece in the Times (of London) in which he states that:

International law tells us that states may create and enforce blockades during an armed conflict, but it also tells us that those blockades must meet humanitarian standards to be lawful.    . . .

The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing. The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.

He then goes on to examine the legality of the operation to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence – a matter which may prove to be as important  and worthy of analysis as the legality of the blockade. Douglas then turns to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris.  Douglas has also given two interviews on the BBC which are worth listening to. See here and also here (around the 19 min mark). Afua Hirsch, Legal Correspondent at the Guardian also has a piece considering the legal issues here.

Also at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is Israel is involved in in Gaza. He accepts that if Israel is involved in an international armed conflict (IAC) in Gaza then it has the right to blockade Gaza. However, he questions whether blockades are lawful in non-international armed conflicts. So:

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. Read the rest of this entry…

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EU denies preferences to products from Israeli settlements

Published on March 2, 2010        Author: 

Dr Lorand Bartels is University Lecturer in Law, University of Cambridge. His publications include Human Rights Conditionality in the EU’s International Agreements (2005, OUP) and Regional Trade Agreements and the WTO (co edited with F. Ortino, 2006, OUP)

The European Court of Justice decided an interesting case last week (Case C-386/08, Brita, 25 February 2010). The Hauptzollamt Hamburg-Hafen (the main customs office of the port of Hamburg) had refused to give preferential treatment under the EC-Israel Association Agreement to products manufactured by an Israeli company in the West Bank.The judgment gives the following facts:

32. The German customs authorities provisionally granted the preferential tariff applied for, but commenced the procedure for subsequent verification. On being questioned by the German customs authorities, the Israeli customs authorities replied that ‘[o]ur verification has proven that the goods in question originate in an area that is under Israeli Customs responsibility. As such, they are originating products pursuant to the [EC-Israel] Association Agreement and are entitled to preferential treatment under that agreement’.

33. By letter of 6 February 2003, the German customs authorities asked the Israeli customs authorities to indicate, by way of supplementary information, whether the goods in question had been manufactured in Israeli-occupied settlements in the West Bank, the Gaza Strip, East Jerusalem or the Golan Heights. That letter remained unanswered.

34. By decision of 25 September 2003, the German Customs authorities therefore refused the preferential treatment that had been granted previously, on the ground that it could not be established conclusively that the imported goods fell within the scope of the EC-Israel Association Agreement. Consequently, a decision was taken to seek post-clearance recovery of customs duties amounting to a total of EUR 19 155.46.

One might have thought that the question would hinge on whether the origin of the products fell within the territorial scope of the EC-Israel Agreement (the ‘territory of the State of Israel’). But the Court took quite a different route. It referred to the EC-PLO Association Agreement, which provides for free trade for products from the ‘territories of the West Bank and the Gaza Strip’ and said:

52. Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention.

Is this correct? Recognizing Israeli competence in relation to products originating in the West Bank does not amount to a denial of Palestinian competence over those products. And even if it did, it does not impose any obligation on the Palestinian authorities not to exercise this competence. They remain free to do so, if they can. So this is not entirely convincing.

The more interesting question is why the Court found it necessary to adopt this odd approach to the case. Why not just determine whether or not the West Bank is part of the ‘territory of the State of Israel’ (as did the A-G)? Could this have anything to do with possible future cases involving annexed territories?

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Goldstone Report on Gaza: A Question of Trust

Published on September 16, 2009        Author: 

I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.

Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.

And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.

Read the rest of this entry…

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The Wikipedia Approach to Reality

Published on September 9, 2009        Author: 

I was reading the news today, and was again struck for the umpteenth time by the ease with which people slip into what I now like to call the Wikipedia approach to reality – a phenomenon that I’m sure psychologists have defined in a much more sophisticated way as some form of cognitive bias or another. Take a look at this CNN report regarding a new B’Tselem report on casualties during the Gaza conflict (on which see more from our blog here, here, here, and here):

Read the rest of this entry…

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

Published on May 3, 2009        Author: 

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. Read the rest of this entry…

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Is Gaza Still Occupied by Israel?

Published on March 1, 2009        Author: 

While the recent conflict between Israel and Hamas was still ongoing, I was wary of commenting on what is a very contentious legal issue – whether Gaza is still to be considered as occupied as a matter of international humanitarian law, even after Israel’s unilateral disengagement from Gaza in 2005. I was wary of doing so primarily because the issue is a complex one, because these complexities can often get lost in the passion of the moment, and, well, because at the time I hadn’t yet done my homework. Even now I’d just like to offer some tentative thoughts, and point the readers to excellent new scholarship on the issue. The first work I’d like to strongly recommend is Yuval Shany’s article on Gaza, commenting on the Israeli Supreme Court’s Bassiouni decision, which is available on SSRN (h/t International Law Reporter).  The second is Yoram Dinstein’s book The International Law of Belligerent Occupation, which has just been published by CUP, and which promises to be one of the definitive works on the whole subject.

If you have been following the debates on Gaza closely, you will know that there are two reflexive answers to the question whether Gaza is occupied, on both ends of the spectrum. The first one is that of course Gaza still continues to be occupied by Israel. Israel controls all of the border crossings, the air, the sea, its soldiers can enter Gaza at will, so on and so forth. The second is that of course Israel no longer occupies Gaza. It has no actual, effective control of the place, which is the factual predicate for any occupation. It does not have troops on the ground and it is not running an administration of the territory. It is Hamas that has such control. Gaza is not under Israeli occupation, but under a siege and a blockade, and rightly so.

Now, before I get into the specific arguments on either side, it is important to explain why the issue matters, and why many in the human rights community in particular tend to (again, somewhat reflexively) adopt the first position. The answer is simple. Under IHL, a belligerent occupant has positive obligations to ensure the well-being of the civilian population, including the provision of food and other supplies. In a state of siege without occupation, however, the party to the conflict only has negative obligations not to interfere with relief consignments etc., and even these can be subject to military necessity. It does not have to provide food and supplies to the civilian population of its adversary (cf. Arts. 69 & 70 of Additional Protocol I). Indeed, to impose such a requirement would be manifestly absurd. The problem is of course precisely that the civilian population of Gaza is heavily dependent on Israel and need Israel not just to let humanitarian aid through, but also to provide electricity and other supplies of its own.

This is why the gentler souls among us international lawyers need to argue that Israel is the belligerent occupier of Gaza. It is the only legally certain way of assigning some positive obligations on Israel to provide for the civilians of Gaza – something that by the way I agree with entirely as a matter of policy. But the certainty is unfortunately only deceptive. Let me now turn to the specific argument and counterarguments.

Read the rest of this entry…

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Filed under: EJIL Analysis, Israel, Occupation
 

Who is a Civilian? A Follow up on the Status of Hamas Police Officers

Published on January 9, 2009        Author: 

At the end of 2008, I put up a post in which I suggested that a key issue in assessing the lawfulness of Israeli airstrikes in Gaza was determning the status of Hama police officers. Before attempting to make the proportionality calculation International Humanitarian Law (IHL) requires, one has to first answer the question who is a civilian and who is a legitimate target. As has been pointed out on this site, one needs to be clear about the relevant facts before engaging in the required legal analysis.

Darryl Li, a student of mine at Yale Law School, sent me an email, in response to my earlier post, in which he attempts to set out what he considers to be the relevant facts regarding the structure of the Gaza police and the status of the police officers. Darryl has worked in Gaza for Human Rights Watch, B’tselem (the Israeli Human Rights group), and the Palestinian Centre for Human Rights. With his permission, I set out some of his email to me.

Gaza police are distinct, operationally and otherwise, from the armed wing of Hamas, the ‘Izz al-Din al-Qassam Brigades.  There may be individuals who are members of both but Hamas-controlled police use the same facilities, wear the same uniforms, and have pretty much the same internal chain of command that existed under Fatah control, at least as far as I could tell during my last trip in January.  Hamas membership is not a prerequisite to being hired, though I’m sure it helps.  Indeed, the commander of the Gaza police, who was killed on the first day of the raids, Tawfiq Jabr, was actually a Fatah man, a career police official who had even supervised the arrest of Hamas activists during the Oslo period.

Ever since the establishment of the Palestinian Authority, the security services, and especially general police, have for the most part hampered armed attacks against Israel.  Not simply in the general sense of cracking down (or not — there is an old tired debate about this) on such groups, but more importantly because they have served as a public employment mechanism and have essentially ‘captured’ the labor of middle-aged cadres, Soviet and Chinese-trained, who developed considerable military experience while fighting in Lebanon. This dynamic deprived the armed groups of useful military experience and in the early years after 2000 left armed attacks essentially in the hands of children (case-in-point: Zakaria Zubaydi of the Aqsa brigades in Jenin).

In fact, the non-combatant status of Hamas policemen — which in this case is also tantamount to their plain-sight vulnerability to massive aerial attack — points to probably the only interesting political lesson I have drawn from this round of fighting, namely that Hamas has committed the same strategic error that they rightly criticized Fatah for: the doomed attempt to create a quasi-state authority without first achieving the rudiments of sovereignty.  Hamas, like Fatah before it, has the vulnerability of a state army without any of its benefits as far as ending the occupation is concerned. The Palestinians have at most a civil police force for internal control and an irregular wing to deter invasions of urban areas. . . .

Read the rest of this entry…

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A Follow-Up on Israel and Gaza

Published on January 3, 2009        Author: 

I just wanted to add a few thoughts after Dapo’s excellent post on the Gaza conflict, of which there seems to be no end in sight.

First, a word of warning. As Dapo pointed out, talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases. Without knowing exactly how many of those killed in Gaza were actively participating in hostilities and/or were members of Hamas, it is far, far too early to speak of Israeli massacres or war crimes in Gaza. Take as an example the statement by Richard Falk, the recently appointed UN Special Rapporteur on human rights in the occupied territories, who condemned the Israeli air strikes as massive violations of international humanitarian law, war crimes and crimes against humanity on the very day that they began. How exactly does he know enough of the facts to actually be able to pass a reasoned judgment, when even today these facts are far from clear? Such statements only serve to reinforce the criticisms regarding Prof. Falk‘s bias against Israel that were made when he was appointed.

Far be it for me to minimize the humanitarian plight of the people of Gaza. But for a legal analysis of the issue to have any use at all, it must involve a measure of distance and objectivity.

In that regard the first legal issue I’d like to raise is that of proportionality, a word thrown around so much these days when talking about the Gaza conflict. It is truly astonishing to me how people who so casually label Israel’s action as disproportionate fail to distinguish between the various types of proportionality found in international law.

The first type of proportionality is the law on the use of force or jus ad bellum proportionality, as one of the conditions for the lawfulness of self-defense, together with the existence of an armed attack and the necessity to repel it. It is easy to instinctively qualify Israel’s action as an exercise of self-defense, lawful or unlawful — see, for example, this post by Ole Pedersen — which should then be assessed in the terms of the jus ad bellum.

But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine. In other words, no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force. Article 2(4) does not apply, and consequently Article 51 and the self-defense notion of proportionality do not apply either, unless one is willing to argue that Palestine (Gaza included) already is a state in international law – a position that is in my view untenable.

(By way of authority, let me cite the ICJ’s Wall advisory opinion, at the much criticized para. 139. The Court has received much flak over the years for what appears to be its off-hand approach to armed attacks by non-state actors, to which Article 51 in the Court’s view supposedly does not apply. But the better reading of this decision is the one I have given above — Israel could not justify its building of the wall in the occupied Palestinian territories by resorting to Article 51, because Article 2(4) did not apply in the first place. A converse situation would be Israel’s response against Hezbollah, which required it to invade Lebanon, thereby triggering Article 2(4)).

That brings me to the second, IHL or jus in bello concept of proportionality, as enshrined in Art. 51(5)(b) of AP I. This concept of proportionality differs from the jus ad bellum one precisely in that is unconcerned with the overall goals, legitimacy or legality of the use of force. It is irrelevant, from the standpoint of IHL, that on balance ten or a hundred Palestinians are killed for every Israeli killed. It is likewise irrelevant whether the use of force is likely to achive its stated objective of putting an end to the rocket attacks by Hamas. That is not part of the IHL equation, since the point of IHL is precisely for it to apply in all conflicts, just or unjust, legitimate or illegitimate, equally to all sides.

What IHL tries to weigh – with great difficulty in some cases – is whether the expected civilian casualties are excessive in relation to the concrete and direct military advantage anticipated. The military advantage is just that, a military one. Does the attack hurt Hamas or not, and how much – not whether hurting Hamas in the first place is a good idea. It likewise must be emphasized that IHL proportionality is assessed in relation to every given attack, not in relation to the overall picture of the conflict. Without having a good idea about the facts on the ground, just knowing that on the whole many more Palestinians are killed than Israelis cannot suffice for making a judgment on proportionality.

The third type of proportionality is one under human rights law. Was it, for example, really necessary to kill a certain person, if he could have been captured instead? This type of proportionality was relied on, for instance, by the Israeli Supreme Court in the Targeted Killings case, to limit the use of targeted killings to measures of last resort. But it is also questionable if, and to what extent, this principle applies to the Gaza conflict, both because of the question whether Israel actually exercises effective overall control over Gaza, thus incurring extraterritorial human rights obligations, and because of the application of IHL as lex specialis.

Finally, I’d just like to add a few words to Dapo’s analysis of the question of how we are to legally characterize the Gaza conflict in the sense of IHL. Unlike Dapo, I don’t think that the characterization of the conflict depends on whether Gaza is still considered to be occupied by Israel or not. It is one thing to say that an international armed conflict is necessary for a belligerent occupation to arise in the first place. It is quite another to say that any conflict in an occupied territory, no matter how distant in time from the setup of the occupation, should qualify as international. It is precisely because no sovereign continues to claim Gaza that I would say that the conflict is probably non-international (FYI, for my criticism of the Israli Supreme Court’s qualification of the conflict in the Targeted Killings case, see this article in the International Review of the Red Cross).

But, as Dapo pointed out, the qualification of the conflict is not that important for the IHL proportionality assessment. What is important are the facts, and it is the facts that we are most sorely lacking.

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Israeli raids in Gaza: Proportionality and the Status of Hamas Policemen

Published on December 29, 2008        Author: 

The latest Israeli raids in Gaza are said to have killed over 300 people (injuring over 1000 others) with most of the dead being Haman policemen and security officials. Israel has launched the raids in response to the repeated rocket fire into Israel from Gaza. Given the very high Palestinian casualties resulting from Israel’s raids and (as far as I can tell) the very low numbers killed or injured in Israel as a result of rocket fire there will be a debate about whether Israel’s actions are proportionate [I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids]. Indeed, the UN Secretary General has been quoted as condemning Israel’s “excessive use of force leading to the killing and injuring of civilians” (see here). No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL). The relevant rule of IHL that will be invoked is the rule that forbids attacks which may be expected to cause incidental loss of civilian life or civilian damage which is excessive when compared with the concrete and direct military advantage to be gained (Art. 51, Additional Protocol I 1977 to the Geneva Conventions of 1949). It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory. Afterall, one is not comparing two things that are necessarily commensurate, unless one makes a straight forward comparison between life lost and life expected to be saved by the military operation. Using that crude comparision, some will suggest that the taking of over 300 lives in order to save just a handful would be disproportionate (if the operation could be expected to cause such loss of life). I do not intend to disagree with that analysis.

However, I suggest that in this case, starting from the proportionality analysis is to start in the wrong place. The recent Israeli raids raises other more basic legal issues under IHL. The answers to those issues might suggest that one never gets to making a proportionality calculation. The proportionality rule requires a comparision between civilian loss (or life or of property) and the military advantage to be gained. Since we are told that most of the deaths caused by those raids are to Hamas policemen or security officials one has to ask whether these are civilians. Read the rest of this entry…

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