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Home Archive for category "Israel" (Page 4)

Palmer Committee Report on the Mavi Marmara Incident

Published on September 2, 2011        Author: 

Yesterday the report of the UN Palmer Committee on the Mavi Marmara incident was leaded to the New York Times – the whole thing is available here. We hope to have more commentary on the report in the coming days; on the whole, it seems more favourable to Israel than the earlier Human Rights Council report. For now, however, I want to make two quick comments, and refer readers for background to Douglas Guilfoyle’s excellent recent piece in the British Yearbook.

First, although a very important finding in the report – a finding that Israel appreciates – is that the blockade of Gaza was legal as a matter of international law, that finding is based on a prior one that Israel most certainly will not like. Namely, as readers will recall, we discussed both on this blog and extensively in these two posts by Kevin Heller at OJ and the comments thereto that Israel’s blockade runs into a fundamental difficulty – that a maritime blockade, which involves the interdiction of the shipping on third states on the high seas, can only be effected in an IAC; it traditionally took place only in wars, and it necessarily involves a relinquishment by third states of their rights to the belligerents.

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The Turkel Commission’s Flotilla Report (Part One): Some Critical Remarks

Published on January 28, 2011        Author: 

Dr Amichai Cohen is a Senior Lecturer at the Ono Academic College in Israel; Prof. Yuval Shany is the Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. Both Dr Cohen and Prof. Shany are senior researchers at the Israel Democracy Institute. The authors thank Prof. David Kretzmer, Mr. Gil Limon and Mr. Rotem Giladi for their comments to a previous draft. The usual disclaimers apply

A. Introduction

On January 23, 2011 The Public Commission to Examine the Maritime Incident of May 31, 2010  – The Turkel Commission published its partial report on the Flotilla incident. This partial report deals with the two main issues raised in the aftermath of the Flotilla incident – the legality of the naval blockade on Gaza, and the tragic results that ensued from the raid by Israel Defense Forces (IDF) commandos of the flotilla ships, which tried to run the blockade – the killing of  9 passengers on board one of the flotilla ships – the Mavi Marmara.

The Turkel Commission was set up by the Israeli government on June 14th 2010, and was headed by a former Justice of the Supreme Court, Yaakov Turkel. Its members included a retired diplomat (Ambassador Reuven Merhav), a former army general (Amos Horev) and a civil law professor (Miguel Deutch). Shabtai Rossene, the fifth member of the Commission, a renowned international law expert, died during deliberations. The Commission also included two international observers, Nobel laureate, Lord David Trimble, and the former Judge Advocate General of the Canadian Forces, Brig. General Kenneth Watkins. The Commission was further assisted by two notable international law experts – Professor Michael Schmitt and Prof. Dr. Wolff Heintschel von Heinegg. The report, which covers 240 pages (the English version is almost 300 pages long), exonerated the IDF and the Israeli government from any violation of international law connected with the flotilla incident and declared that the nine deaths which occurred on board the Mavi Marmara were a tragic result of a conflict which Israel did not seek, plan or even foresee. This conclusion is supported by extensive fact finding and legal analysis. Although the Commission conceded that it could not verify the entire body of evidence for each and every case of shooting or other form of violence employed on the Mavi Marmara during the takeover (the Commission identified 133 such incidents), it did not find Israel’s action to violate any applicable international law standard.

The purpose of this comment is to discuss some of the specific legal findings made by the Turkel Commission, which we believe to be problematic in nature.

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Turkel Committee Publishes Mavi Marmara Report

Published on January 23, 2011        Author: 

Today an Israeli inquiry, the Turkel Committee, published the first part of its report on the Mavi Marmara incident and the lawfulness of the Gaza blockade generally, finding that Israel acted in accordance with international law (full report; summary; BBC News article). An earlier UN inquiry reached the opposite conclusion – for a critique see Yuval Shany’s post; for previous coverage see this post by Dapo.  I have not had the time to read the report, let alone digest it, but on a quick skim I saw, inter alia, that the report qualified the Israel/Hamas conflict as an international armed conflict, thus enabling the creation of a blockade, without however articulating a clear theory in that regard. The report also somewhat more controversially alleges that a blockade would be permissible even if the conflict was non-international in nature (see paras. 37-44).

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Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Published on October 12, 2010        Author: 

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

The Report of the “international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.

 

Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.

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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.

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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):

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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.

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Filed under: EJIL Analysis, Israel, Occupation