European Court Decides that Israel Is Not Occupying Gaza

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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?

Both cases dealt with applications by persons displaced by the conflict who are not able to access their property in the affected areas. The Sargsyan case in particular dealt with the the denial of the applicant’s right to return to the village of Gulistan. The village is located on the territory of Azerbaijan, but very close or on the so-called line of contact between Azerbaijan and the forces of the separatist Nagorno-Karabakh republic. Thus, in the view of the Azerbaijani government, the village was not under the control of Azerbaijan, and was moreover mined and inaccessible to any civilian.

In fact, when it ratified the European Convention Azerbaijan made the following declaration (para. 93 of the judgment):

The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation.

Note the reference to the concept of belligerent occupation. Immediately after this paragraph, the Court makes the following observations, under the heading ‘relevant international law’ (para. 94):

Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter “the 1907 Hague Regulations”) defines belligerent occupation as follows:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state(1) . The requirement of actual authority is widely considered to be synonymous to that of effective control.

Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation(2) , i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice(3) .

There are three footnotes here, all to important works on the topic, including the proceedings of an expert meeting organized by the ICRC – let me quote these in full:

[1].  See, for example, E. Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012) at p. 43; Y. Arai-Takahashi, The law of occupation: continuity and change of international humanitarian law, and its interaction with international human rights law (Leiden: Martinus Nijhoff Publishers, 2009), at p. 5-8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009) at 42-45, §§ 96-102; and A. Roberts, ‘Transformative Military Occupation; Applying the Laws of War and Human Rights’, 100 American Journal of International Law 580 (2006) 585-586.

[2].  Most experts consulted by the ICRC in the context of the project on occupation and other forms of administration of foreign territory agreed that ‘boots on the ground’ are needed for the establishment of occupation – see T. Ferraro, Occupation and other Forms of Administration of Foreign Territory (Geneva, ICRC, 2012), at 10, 17 and 33; see also E. Benvenisti, cited avove, at p. 43ff; V. Koutroulis, Le debut et la fin de l’application du droit de l’occupation (Paris: Editions Pedone, 2010) at pp. 35-41.

[3].  T. Ferraro, cited above, at pp. 17 and 137; Y. Dinstein, cited above, at p. 44, § 100.

In para. 95 the Court then proceeds to cite the ICRC Customary IHL Study as well as Article 49 GC IV regarding rights of displaced persons. (The same text can be found in paras. 96-97 of the Chiragov judgment). But the really important bit happens in paras. 143-144 of Sargsyan:

143. At this point the Court considers it useful to reiterate that Azerbaijan has deposited a declaration with its instrument of ratification expressing that it was “unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia” (see paragraph 93 above). In its decision on the admissibility of the present case, the Court has held that the declaration was not capable of restricting the territorial application of the Convention to certain parts of the internationally recognised territory of Azerbaijan (Sargsyan (dec.), cited above, §§ 63-65) nor did it fulfil the requirements of a valid reservation (ibid., §§ 66-70).

144. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, “actual authority” being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan.

See what I meant? Replace “Gulistan” with “Gaza”, and there you have it! In fact, I’m pretty sure that this is at least one judgment of the European Court that Israeli governmental legal advisors will be citing all the time, whenever the issue of Gaza’s occupation is brought up (and good for them).

Just to be clear, I don’t think that the Court is wrong here – I’m in fact on the record in saying that Gaza most probably does not fit any classical notion of occupation, and that in fact occupation, as the Court says, requires troops on the ground. But was the Court wise in reaching this question, and deciding it as categorically as it did? That, I think, is more questionable; it seems likely that the issue of Azerbaijani control over the village could have been dealt with in some other way. The work that the whole occupation point does in the analysis that follows (paras. 145-150), which concludes that the Convention applies in full to the village, seems marginal at best.

I also very much doubt that the judges were really aware of the implications a categorical statement such as the one made here will have on the whole Gaza debate. If they were, I imagine that they would have avoided it like the plague. Note, in that regard, the lack of IHL experts on the Strasbourg bench – which, to be clear, is most definitely not the Court’s own fault! This inevitably leads to losing some nuance in appreciating current debates in IHL, with the Court perhaps overstating the degree of consensus among experts on these issues (even though, again, I agree with its bottom line). I would note, for example, that Yoram Dinstein, whom the Court cites twice, in fact takes a less categorical approach than the Court on the very page and in the very paragraph (44, para. 100) of his book that the Court cites, where he says that ‘the Occupying Power must deploy ‘boots’ on the ground in or near the territory that is under occupation’ (emphasis mine), and in fact thinks that Gaza remains occupied.

So there – Gulistan and Gaza have discovered that they have something in common, and the European Court of Human Rights is starting to make clear, decisive, and oh-so-very citeable pronouncements on key concepts of IHL.

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    Mark Nelson says

    June 17, 2015

    It's ironic that the Court cites - among others - Tristan Ferraro, a legal adviser at the ICRC, to support its main claim; as Peter Maurer, the President of the ICRC, has explicitly taken the position that Gaza IS occupied territory

    (see: Peter Maurer, Challenges to Humanitarian Action in Contemporary Conflicts: Israel, the Middle East and Beyond, 47 Isr. L. Rev. 175, 179 (2014)).

    Not only that, but the Court excluded a KEY caveat in Ferraro's argument.

    According to Ferraro:

    "However, in some specific and exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) while retaining key elements of authority or other important governmental functions therein which are typical of those usually taken on by an Occupying Power – it is proposed here that occupation law might continue to apply within the territorial and functional limits of those competences.

    Indeed, it is submitted here that, despite the absence of the foreign forces’ physical presence in the territory concerned, the authority they retained can – in some cases – amount to effective control for the purposes of the law of occupation and entail the continued application of that body of law’s relevant provisions.

    This functional approach to occupation would thus be used as the relevant test for determining the extent to which obligations under occupation law remain incumbent upon hostile foreign forces progressively phasing out or suddenly
    withdrawing from the occupied territory. This test applies to the extent that the foreign forces still exercise within all or part of the territory governmental functions acquired when the occupation was undoubtedly established and ongoing.

    This functional approach permits a more precise delineation of the legal framework applicable to situations where it is difficult to determine with certainty if the occupation has ended or not. This is all the more important insofar as the law of occupation does not expressly address the question of the legal obligations applicable during the unilateral withdrawal from an occupied territory. The silence of IHL on this very issue is notably due to the fact that occupation usually ends either by force, by agreement, or by a unilateral withdrawal often followed by a related empowerment of the local government. In most of the cases, the foreign forces leaving the occupied territory do not continue – at least without the consent of the local government – to exercise important functions therein.

    However, today, the continued exercise of effective control from outside the territory subject to it cannot be discarded outright. Indeed, it may be argued that technological and military developments have made it possible to assert effective control over a foreign territory (or parts thereof) without a continuous foreign
    military presence in the concerned area. In such situations, it is important to take into account the extent of authority retained by the foreign forces rather than
    focussing exclusively on the means by which it is actually exercised. One should also recognize that, in these circumstances, any geographical contiguity existing between
    the belligerent states might play an important role in facilitating the remote exercise of effective control, for instance by permitting an Occupying Power that has
    relocated its troops outside the territory to make its authority felt within reasonable time.

    Therefore, it is submitted here that any unilateral withdrawal from an occupied territory in which foreign forces, without the consent of the occupied territory’s government, retain key elements of authority (previously exerted as a result of their legal status as Occupying Power and amounting to effective control under IHL) calls for the application of those provisions of the law of occupation that remain relevant to the functions that the power continues to exercise."

    (Tristan Ferraro, Determining the beginning and end of an occupation under international humanitarian law, Int'l Rev. of the Red Cross, 133, 157-158 (2012)).

    Therefore, this ruling can be distinguished from the case in Gaza.

    Harry Melkman says

    June 17, 2015

    In reply to Mark Nelson, Ferraro's argument "This test applies to the extent that the foreign forces still exercise within all or part of the territory governmental functions acquired when the occupation was undoubtedly established and ongoing", being applicable to the case of Gaza is quite out of mark. Or may be he exerts himself in a kind of conspiracy theory that the rockets launched from Gaza clearly in contravention of IHL are a product of the occupying force.

    Heiko says

    June 18, 2015

    Gaza is very small. And it cant make a difference where your army sits.

    Hostage says

    June 18, 2015

    In response to Harry Melkman, while a blockade may not entail the presence of foreign troops in a territory, Israel most certainly does operate naval forces well inside the Palestinian maritime jurisdiction and routinely attacks the local fishing boats as they go about their routine business. Palestine doesn't have a navy. So, I assume the government of Israel has placed those territorial waters under the effective control of its own military and that Palestine is unable to maintain law and order there - even if it wanted to do so. Likewise, the Israeli Coordinator of Government Activities in the Territories has publicly declared that the “forbidden” buffer zone inside the Gaza strip stretches 300 meters from the Israeli border. Unless there are vigilantes shooting at Palestinians in the buffer zones, that means that the IDF is still exercising police powers there, not the government of Palestine. In addition, under the Agreement on Movement and Access, Israel still effectively controls the list of persons eligible to leave the country through the border crossings, because it maintains the population registry and decides who is, or is NOT considered a lawful inhabitant eligible for a passport. So the disengagement is only partial and conditional.

    In response to Marko, I think that State, UN, and ICC OTP practice understandably differs somewhat from your reading, because there are justiciable and material differences regarding the factual situations. In part, it's because Israel has not given up effective control over much of the territory of Palestine, including the Gaza Strip. In addition, it's not 1907 anymore. Even regular governments employ automatic surveillance cameras and remote supervisory systems to notify citizens by mail that they have committed traffic offenses, not "boots on the ground". As a military professional, I think that anytime drone operators, remote turret weapons systems, artillery crews, or tank crews have been issued rules of engagement that allow them to maintain a continuous state of martial law, rather than indigenous civilian rule, and fire at anyone actively engaged in hostilities or "signature" behaviors anywhere inside the Gaza Strip, then military authority has been established over protected persons and objectives and can be exercised preemptively without the consent of the legitimate government.

    If you do that to the extent that farmers can't harvest their crops and the free flow of humanitarian assistance and supplies essential to a protected community's survival is threatened, then you have prevented the legitimate government from functioning and maintaining order. That's why other states still hold Israel responsible for discharging some of the obligations of a belligerent occupying power.

    Hostage says

    June 18, 2015

    Re: Gaza is very small. And it cant make a difference where your army sits.

    I agree to the extent that stand-off weapon systems allow a belligerent force to exercise effective, if not exclusive control over all or a portion of a weaker state's territory and turn it into a no-mans-land.

    Re: i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice(3)

    Israel is actively controlling and invading the air space and territorial waters. That's not at all analogous to a mere air or naval blockade of the borders or international lines of demarcation.

    ELieblich says

    June 18, 2015

    It should be noted that the Gaza debate is less about when an occupation materializes and more about how and when it is terminated. There is no doubt that Israel was the occupying power in Gaza until 2005. The question is whether since its disengagement Israel retains control over governmental functions in a manner that amounts to effective control, or at least to effective control over these particular functions ("the functional approach").
    Having this in mind, the ECHR's ruling would be relevant to the Gaza situation only if Gulistan was previously "properly" occupied, and now Armenia withdrew its forces while still maintaining levels of control. I don't know whether this is the case here.

    Federico says

    June 18, 2015

    The ICTY ruled in 2003 that an occupation exists so long as the occupying army has “the capacity to send troops within a reasonable time to make the authority of the occupying power felt” (Prosecutor v. Naletilić, case No. IT-98-34-T, Decision of 31 March 2003, at para. 217).In June 2008, on the contrary, the Israeli Supreme Court ruled that “the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties required of an occupying power under international law.” Marko argued on Opinio Juris that there is no reason why State custody over an individual should constitute jurisdiction, but its power to kill that individual by a drone-fired missile would not. I completely agree with him, but I am afraid this is not the most followed opinion

    Alessandra Asteriti says

    June 18, 2015

    The investment law concept of 'creeping' or 'indirect' expropriation might be useful here. Gaza experiences a form of 'creeping' occupation whereby the classical criterion for occupation ('boots on the ground') is not there, just like the taking of title is not part of an indirect expropriation. International lawyers have no problem accepting that property has been expropriated under certain circumstances even if title is not officially taken. I have no problem extending the same sort of reasoning to the situation in Gaza.

    Eugene Kontorovich says

    June 18, 2015

    By the way, it is not just Gaza that is not occupied - it is also Area A, under full PA security control under the Oslo Accords.

    Ah, that is the problem with general rules, they may force you to apply them to situations you'd rather not! They make it hard to grab on, ex post, to details of the situation that you want to come out differently and claim that they are legally relevant...

    Of course, the problem with the "Gaza is Occupied" theory isn't just the lack of boots on the ground - it is the presence of a different and hostile government controlling daily life. So it is not the ECtHR that first ruled Gaza is not occupied - it is following in the footsteps of the ICJ itself, in Congo v. Uganda.

    See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/13/gaza-is-not-remotely-occupied-ii/

    Hostage says

    June 18, 2015

    Re: See what I meant? Replace “Gulistan” with “Gaza”, and there you have it! In fact, I’m pretty sure that this is at least one judgment of the European Court that Israeli governmental legal advisors will be citing all the time, whenever the issue of Gaza’s occupation is brought up (and good for them).

    No I don't see it, since Gulistan is located inside the territorial jurisdiction of Azerbaijan and Gaza is not located inside the territorial jurisdiction of the State of Israel according to UN Security Council resolutions 62, 73, 242, 338, and 1860. I don't think Sargsyan v. Azerbaijan constitutes the same legally cognizable arguments regarding exhaustion of domestic remedies in the courts of first instance. Those would quite obviously be Palestinian ones, not Israeli. Likewise, none of the PA factions have heavily mined the so-called 25 mile long "forbidden zone" or the coastal waters of the Gaza strip and they do not "straddle a Line of Contact (LoC)" established by the cease fire agreements between the parties to the conflict. Aside from a few instances where missiles have reportedly fallen short, there is no doubt among members of international fact finding missions, NGOs, or the international press about the fact that Israeli forces are responsible for destroying tens of thousands of homes in the Gaza Strip.

    Hostage says

    June 18, 2015

    Re: By the way, it is not just Gaza that is not occupied – it is also Area A, under full PA security control under the Oslo Accords.

    On the contrary, the ICJ included a brief analysis of the Oslo Accords in its findings which advised that none of the post-1967 developments as of 2003 had altered the fact that that particular territory was still under belligerent occupation and that Israel was actively interfering there in the exercise of the Palestinian right of self-government and self-determination. In Congo v. Uganda, the Court noted Uganda had “ensured that its troops refrained from all interferences in the local administration, which was run by the Congolese themselves” and that in cases of incursions where Ugandan troops were actually present and had substituted their own authority for that of the Congolese Government, "any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied." There is no requirement for the military commander to establish a new administrative regime to govern the territory under the Hague or Geneva rules. In fact, the commander has plenty of incentives to leave as many of the normal laws in place and make the majority of the officials and organs of the subjugated indigenous government subordinate to his authority through the terms of a cease fire or other special agreement. The commander can then exercise jurisdiction indirectly and through occasional incursions and preemptions. In any event, the international obligations of the power exercising jurisdiction aren't limited to seeing that the functions of government are carried out, they also include the obligation to refrain from engaging in proscribed acts and behavior.

    Marko Milanovic says

    June 18, 2015

    Many thanks to everyone for their comments. I must say that I am a bit surprised, however, at some of the attempts to distinguish this case from Gaza. The Court was perfectly clear that it thought that occupation requires boots on the ground, full stop. And it made no distinction in the relevant standard between the establishment and the maintenance of an occupation. The legal proposition was categorical and not particularly fact-dependent. It may well be wrong - some good arguments (and some bad) have been made in that regard. But ultimately that's neither here nor there. The point of my post was simply that the Court's holding on occupation - correct or not - has clear implications for the Gaza dispute, and will inevitably used as an instrument in that dispute, which is not (I think) something that the Court really would have wanted.

    Dave says

    June 18, 2015

    "I must say that I am a bit surprised, however, at some of the attempts to distinguish this case from Gaza."

    You are surprised that people try to make a stricter law for Israel than the rest of the world? This is just one in a thousand such cases.

    Charlie in NY says

    June 18, 2015

    The problem faced by those who would expand the law on occupation to cover Gaza but not other situations, such as Northern Cyprus, Western Sahara or Tibet, to name a few, is that their limiting principle is unmoored from any objective standard. A functional approach could theoretically work if the local government was a puppet of the former occupiers. It should go without saying that Hamas is not such a government. As no country is obligated to open its borders to its neighbors, that criterion would appear irrelevant. As the UN's Palmer Commission has found the Israeli naval blockade to be lawful, the existence of that blockade adds nothing to the analysis. Would anyone claim that the U.S. "quarantine" of Cuba during the 1962 missile crisis establish US occupation of Cuba? Reading Hostage's comments, a certain bias may be detected in the phrase "indigenous government," as Gazan Arabs are indigenous to Arabia, assuming you mean to use its accepted definition. It is the Jews who are the remaining indigenous people of that area.
    Of course, this entire discussion assumes that Israel has no rights under international law to any part of Gaza (or the West Bank, for that matter). That may not be a correct assumption as the rights granted to the Jewish People under the League of Nations Mandate for Palestine of 1922 would appear to remain applicable and relevant - see UN Charter article 80. In any event, that issue will be taken up in a conference jointly sponsored by the law schools of Columbia and Hebrew Universities on June 21-22.

    Mordy says

    June 18, 2015

    Ferraro writes: "However, in some specific and exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) while retaining key elements of authority or other important governmental functions therein which are typical of those usually taken on by an Occupying Power – it is proposed here that occupation law might continue to apply within the territorial and functional limits of those competences."

    The operative question is what are these "key elements of authority," but since that clause is immediately followed by "or other important governmental functions" it suggests that the key elements are institutional / governance authority. Israel in Gaza, even according to Hostage's description above, does not meet that criteria.

    Hostage says

    June 19, 2015

    Re: I must say that I am a bit surprised, however, at some of the attempts to distinguish this case from Gaza. The Court was perfectly clear that it thought that occupation requires boots on the ground, full stop.

    Okay, I apologize for the fact that my references to the ICC OTP, UN, and State practice on the meaning of the term occupation above were probably too vague. Those implicitly included statements or findings of fact regarding the Flotilla raid, Operation Cast Lead, Operation Pillar of Defense, and Operation Protective Edge, wherein there were IDF boots on the ground. I did not mean to imply that Israel exercises effective control "solely" through control of the airspace, coastal waters, population registry, or border crossings. From the outset, the Court cited four works by Benvenisti, Arai-Takahashi, Dinstein, and Roberts on the meaning of the term that are full of qualified language and caveats which apply to the situation in Gaza, but do not appear to apply (at all) to the situation described by the Court in the case of Azerbaijan. The Court once again cited Benvenisti and two additional sources, Ferraro, and Koutroulis, in support of the proposition that "boots on the ground" are essential to initially "establish" an occupation. But Koutroulis has written other journal articles which explicitly stated that Gaza remained occupied territory after the 2005 disengagement and that a continuous military presence inside the territory is not a conditio sine qua non for the existence of a belligerent occupation. See Vaios Koutroulis, Of Occupation,Jus ad Bellum and Jus in Bello:A Reply to Solon Solomon’s “The Great Oxymoron:Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense:The Post-Disengagement Israeli Measures towards Gaza as a Case Study,” 10 Chinese JIL (2011), paras.4-14.

    The Grand Chamber then cited Ferraro and Dinstein in support of the proposition that 'occupation is not conceivable without "boots on the ground" therefore forces exercising naval or air control through a naval or air blockade do not suffice'.

    That's all pretty clear, until you consider that Dinstein only required that an occupation "has been" established once at some point in the past and that thereafter the boots on the ground do not need to remain in the occupied territory continuously. He explicitly said "or nearby". He also notes that effective control waxes and wanes and may need to be reestablished in the same locale "de novo" on multiple occasions during the course of a single conflict, and that when it is, some of the obligations applicable to an occupation on land extend to the territory's coastal waters, its continental shelf, and its airspace. Anyone who reads the Israeli press on a daily basis is familiar with routine reports quoting military commanders and government officials about when, not if, it will be necessary for the IDF to enter Gaza once again and impose its will, its terms, or conditions on the inhabitants and the government that is in place there.

    Arai-Takahashi, Benvenisti, Dinstein, Ferraro & the ICRC experts, and Koutroulis all cite and discuss the US Military Tribunal's judgment in the Wilhelm List (aka Hostages) case which held that it is sufficient that the occupying forces “could at any time they desired assume physical control of any part of the country”, and that
    the state of occupation is not to be diminished by the fact that the partisans showed a capacity to control part of these countries at many times. Likewise, they discuss aspects of the ICJ judgment in the Uganda case which held that the existence of a structured military administration was not a required factor and that a lapsed agreement of garrisons of troops could transform a friendly allied occupation into a belligerent one. Arai-Takahashi cites Justice Shamgar of the Israeli Supreme Court's decision in the in the Antzar Camp (or Ansar Prison) case. He ruled that the area in question constituted an occupied territory subject to the laws of war and GCIV in particular. He concluded that the application of the law of occupation in that area did not necessarily require the existence of a durable belligerent occupation or the establishment of a military administration.

    I think the other case, the UN General Assembly, the ICRC, the Grand Chamber, and several of those same sources agree that, despite its denials, Armenia is an occupying power in Nagorno-Karabakh which exercises "indirect effective control" remotely through the government of the Nagorno-Karabakh Republic.

    I would be amazed if the government of Israel would touch either of these judgments with a proverbial barge pole. Both of them establish that there is a customary and conventional obligation under international law, apart from the EC acquis, to allow refugees to have access to their land and property and/or compensation - without regard to prolonged on-going negotiations on a final settlement. The Chamber cites similar judgments in the case of the occupied territory of northern Cyprus. Israel has a corresponding obligation with regard to the refugees in Gaza and elsewhere under the terms of the minority protection plan contained in UN General Assembly resolution 181(II) and the so-called "UN Pinheiro principles" cited in one of the judgments.

    Brian from Toronto says

    June 19, 2015

    What state is Israel supposedly occupying?

    Philip Kisloff says

    June 20, 2015

    Several points I can think of in Hostage's points:

    Occupying forces generally withdraw after a peace treaty or establishment or normalised relations. For Israel to withdraw from Gaza unilaterally, their options for continued legal defensive measures such as a blockade or military action against rocket attacks would appear to be severely curtailed if that can be construed as continuation of a prior occupation.

    Also,

    "there is a customary and conventional obligation under international law, apart from the EC acquis, to allow refugees to have access to their land and property and/or compensation – without regard to prolonged on-going negotiations on a final settlement."

    If that is a general rule not specifically against Israel, it would apply to Jewish settlements in the West Bank, for example Kfar Eztion, the surviving inhabitants driven out during Jordan's belligerent occupation, would it not?

    Eitan says

    June 22, 2015

    The debate is, evidently, still very much alive. This is from the Report of the independent commission of inquiry on the 2014 Gaza conflict published today, 22 June 2015:

    QUOTE

    30. The commission concludes that Israel has maintained effective control of the Gaza Strip within the meaning of Article 42 of the 1907 Hague Regulations. The assessment that Gaza continues to be occupied by Israel is shared by the international community as articulated by the General Assembly and has been reaffirmed by the International Committee of the Red Cross (ICRC) and the Prosecutor of the International Criminal Court (ICC).
    31. In view of the 2005 disengagement, Israel’s obligations under occupation law are consistent with the level of control it exercises, and the rules of treaty and customary law of occupation by which it is bound remain those that are relevant to the functions that Israel continues to exercise as an occupying power.

    UNQUOTE

    Brian from Toronto says

    June 22, 2015

    "The debate is, evidently, still very much alive."

    There is no debate. There is only the perversion of international law to use it as a tool to attack Israel.

    What exactly does the Naletelic case (which the commission cites) say?

    217. To determine whether the authority of the occupying power has been actually established, the following guidelines provide some assistance:

    - the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly; {Obviously not the case in Gaza; Hamas functions publicly; it rules the territory.}

    - the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation; {Again, Hamas has obviously not surrendered, been defeated or withdrawn; on the contrary, they're the governing body in Gaza.}

    - the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; {Again obviously *not* the situation in Gaza. This point footnotes “The Law of Land Warfare”, Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 356, which clarifies that the situation envisaged is one in which the "belligerent occupation must be both actual and effective, that is, the organized resistance must have been overcome and the force in possession must have taken measures to establish its authority." Obviously, Hamas has not been overcome and Israel is not the authority in Gaza; Hamas is. Therefore it's irrelevant that Israel can quickly send troops into Gaza.}

    - a temporary administration has been established over the territory; {Obviously not the case in Gaza; Hamas administers Gaza, not Israel.}

    Indeed, the contention that Israel occupies Gaza is so unreasonable that suggesting it does can only bring International Law into disrepute.

    It's like saying that the U.S. occupies Canada, since that U.S. could send troops into Canada any time it wants. It's true the U.S. doesn't do this, but that's because Canada hasn't fired thousands of missiles into the U.S.

    Really, the argument that Israel "occupies" Gaza amounts to just this: In order to end its occupation of Gaza, Israel must forgo its right to self-defense, because if it replies to attacks from Gaza, that proves it can re-enter Gaza and therefore still occupies Gaza.

    In other words, the purpose of the argument is to make Israel pay for defending itself, and this is not really a legal argument at all, but a political attack.

    Hostage says

    June 24, 2015

    Re: You are surprised that people try to make a stricter law for Israel than the rest of the world? This is just one in a thousand such cases.

    On the contrary, I think that the same rules regarding refugee right of return, access to their property, and to compensation should be applied to Palestine refugees. I also think that the same rules that were employed to determine that Armenia was occupying Nagorno-Karabakh indirectly and remotely could be, and should be applied to the countries that provide the financial, military, and political assistance to Israel in violation of UN resolutions which are indispensable to the occupation and colonization of Palestine by their own nationals.

    Hostage says

    June 24, 2015

    Re: The problem faced by those who would expand the law on occupation to cover Gaza but not other situations, such as Northern Cyprus, Western Sahara or Tibet, to name a few, is that their limiting principle is unmoored from any objective standard.

    But the Grand Chamber used exactly the same laws and ratioinale to order the UK Courts to enforce a Southern Cypriot Court judgment in the matter of Meletis Apostolides v David Charles Orams and Linda Elizabeth Oram. It restored title to the original refugee owner's property and lost rent on land located in Northern Cyprus. It also required the UK settlers, who had obtained the plundered property through an improper transaction, to remove the home that they had constructed on the site.

    While the EC has decided to lift sanctions on the indigenous Turkish communities of northern Cypus, the regulation that governs financial assistance stipulates that the aid is predicated on the understanding that the affected areas in the North of Cyprus will be subject to the acquis under the final settlement and that eligible projects must respect property rights.

    Hostage says

    June 24, 2015

    Re:The operative question is what are these "key elements of authority," but since that clause is immediately followed by "or other important governmental functions" it suggests that the key elements are institutional / governance authority. Israel in Gaza, even according to Hostage's description above, does not meet that criteria.

    It suggests to me that the authors chose to say "or" rather than "and". In any event, I wasn't writing an exhaustive description of all the situations in which Israel imposes and substitutes its authority for that of the Palestinian government. First and foremost, although UN Security Council resolution 1860 (2009) encouraged tangible steps towards intra-Palestinian reconciliation, and there was an agreed upon non-terrorist technocratic Unity government, most of these discussions simply assume the legitimacy of the successful Israeli government policy of non-recognition, and its own right to "divide and rule" the Palestinian inhabitants as it sees fit.

    Immediately after the Palestinian Unity government was sworn into office, Israel imposed collective penalties and began efforts to prevent it from assuming control. It prevented it from transferring currency to banks, paying wages, or providing essential services in Gaza or anywhere else. It withheld customs fees that it collects for the Palestinian government and even interfered in the conduct of its foreign relations with donors. The latest UN report cites the restrictions imposed on international humanitarian assistance projects, whereby detailed construction plans and bills of material have to be submitted and approved by Israeli government officials. So they have assumed de facto authority over the most minute details of basic municipal planning in Gaza.

    That degree of control is nothing new. There are regular reports in the Israeli and Jewish press about routine incursions of IDF tanks, bulldozers, and soldiers into Gaza to arrest persons who enter security/forbidden zones, destroy new roads constructed there by local officials, or to raze any new buildings erected by the respective land owners. Israel has re-occupied the territory on an "as required basis" and rendered up to 40 percent of the arable land of the Gaza Strip unusable to the population that depends upon it in precisely that fashion.

    Uganda did not control the supply of currency to the banks or collect taxes in the DRC. The circumstances in Gaza did not exist in either of the cases before the EC Grand Chamber. Nothing in IHL prevents other states from viewing Palestine as a single territory that is occupied and administered remotely or indirectly at all times by Israel through either the IDF or the PA. It can quickly impose its authority over any parts of the country, including Gaza, which are under the partial control of partisan militias. The state parties to all of the IHL conventions have always insisted on the inclusion of a Martens Clause to protect invaded countries and address any vagueness regarding the scope and applicability of terms, like "authority", or any lacuna regarding the precise beginning or end of a belligerent occupation regime.

    Charlie in NY says

    June 24, 2015

    Once again, in trying to stretch international law concepts to cover Israel when the straightforward, long accepted and commonsensical existing interpretations exonerate it, the results are self evidently unsustainable. Hamas controls all governmental functions in the strip, to pretend otherwise is simply intellectually dishonest. Until Israel was the topic, occupation required boots in the ground or the imposition of a puppet government j set the control of the previously occupying power. Now, if some of the novel approaches are applied, all of Ukraine is under Russian occupation. Who knew? Then again, perhaps there is something sui generis in the redefining of the concept that leads to such absurd results.

    Hostage says

    June 24, 2015

    Re: Also, [is] "there is a customary and conventional obligation under international law, apart from the EC acquis, to allow refugees to have access to their land and property and/or compensation – without regard to prolonged on-going negotiations on a final settlement."

    Yes, the EC Grand Chamber wrote: "Nonetheless the right of displaced persons “to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist” is regarded as a rule of customary international law (see Rule 132 of the ICRC Study on Customary International Humanitarian Law[4]) that applies to any kind of territory.

    Re: If that is a general rule not specifically against Israel, it would apply to Jewish settlements in the West Bank, for example Kfar Eztion, the surviving inhabitants driven out during Jordan's belligerent occupation, would it not?

    Yes it would, since minority rights in both states were placed under the same UN guarantees. But those 480 or so inhabitants and their descendants have little or no relations among the 50,000 or so current Jewish inhabitants of the region. For example, Efrat was established by a US national and there are so many New Yorkers living there that its known locally as "Little Scarsdale".

    FYI, I wrote an article for Mondoweiss about the contents of the famous 1967 Meron memo and the fact that he suggested the government could initially attempt to conceal its plans to circumvent the GCIV Article 49(6) prohibitions under the guise of merely returning or resettling the former inhabitants or descendants of Kfar Etzion. See Theodor Meron’s ’67 memo provided legal rationale for settlements http://mondoweiss.net/2013/06/provided-rationale-settlements

    FYI, I'm a member of Jewish Voice for Peace. Our political platform calls for social justice and equal human rights for all of the parties concerned, including the displaced Jews. I've written articles and commented elsewhere about the fact that about 17,000 of the "Palestine refugees" who filed property claims with the UN PCC or who lived in refugee camps in Israel operated by the UNRWA or its predecessor were Jewish. They were mostly from Jerusalem, but there were almost 500 residents in the four small Kfar Etzion colonies located on land acquired by the Jewish National Fund for the southern defense of Jerusalem on or near the hill known as Dhar-el-Kadis (the Holy Mount) and its old German Monastery.

    In the spring of 1948, after the mothers and children had been evacuated, 220 fighters were sent by the Haganah. Published IDF historical reports say that there no more than 535 people garrisoned there at that time. See Itzhak Levi, Jerusalem in the War of Independence ("Tisha Kabin" – Nine Measures – in Hebrew) Maarachot – IDF, Israel Ministry of Defence, 1986. ISBN 965-05-0287-4

    The actual residents and their heirs have the same rights as other displaced persons to return to the country of habitual residence, to be paid compensation for their buildings and other abandoned property, lost lease payments, & etc. On the other hand, The Jewish National Fund does not possess all of the rights that accrue to a natural person. In addition, it is holding millions of dunams of unlawfully plundered Palestinian refugee property in Israel as part of state-inspired scheme that could be viewed as an on-going crime or wrongful act of state.

    Hostage says

    June 25, 2015

    Re: Occupying forces generally withdraw after a peace treaty or establishment or normalised relations. For Israel to withdraw from Gaza unilaterally, their options for continued legal defensive measures such as a blockade or military action against rocket attacks would appear to be severely curtailed if that can be construed as continuation of a prior occupation.

    Israel began fencing-off Gaza in the 1990s and it already had an illegal administrative regime in place that impermissibly infringed on freedom of movement and other non-derogable human rights in 2003.

    It shouldn't take a legal or military expert to know that there is no military solution to the situation in Gaza or Palestine. There were MKs who told Sharon that the militias would fire rockets from Gaza if the IDF was withdrawn. He reminded them, that in actual practice, the IDF had never been able to prevent them from firing rockets into Israel in the first place. It's no mere coincidence that the number of rocket attacks peaks during Israeli invasions of the Strip or that no evidence to support a corresponding defensive military advantage can be derived based upon that particular metric.

    The Security Council called on the parties to the armistice agreements to begin repatriating refugees that had been vetted by the mixed armistice commissions in 1950. It reminded the parties in 1951 that it had ordered a termination of the hostilities under the auspices of Article 40 (Chapter 7) and that none of them had the legal right to operate a blockade under the auspices of Article 51. It noted that the agreements were part of a transition to permanent peace. So all of the Palestine refugees, Jews and Arab alike, should have been repatriated at that time under the customary rule cited by the EC in the SARGSYAN v. AZERBAIJAN case. See http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/89%281950%29 and http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/95%281951%29

    The legality of the Gaza closure has been challenged on the grounds of IHL rules that do not appear under the heading of Part 3 Section 3 of GCIV regarding belligerent occupations. Israel has pro-actively interfered with attempts by others to supply humanitarian relief to the Gaza population. The Security Council has ordered unimpeded flow of food, medical supplies, and fuel into and throughout Gaza. UN Treaty Monitoring bodies, the ICRC, the UN fact finding missions, and non-governmental reports, like the ones that appeared in the British Medical journal, The Lancet, have all complained about collective penalties, and the deliberate destruction of the population's sources of sustenance, combined with interference with the free passage of consignments of essential food and medical supplies. It appears that Israeli officials imposed conditions of life that resulted in stunted growth in children, permanent developmental disabilities, and shortened life expectancy as a result of malnutrition. The reports said that about 10 percent of the population exhibited those symptoms, and that in some areas, as many as 30 percent of the children had been seriously harmed by the Israeli sanctions. Documents published by Wikileaks indicated that Israeli officials intentionally brought the economy of Gaza to the brink of collapse. Documents obtained through the Israeli Courts revealed that officials had calculated the minimum number of daily calories for the population; the required portion needed from imports; and then deliberately refused to allow-in a sufficient number of consignments to satisfy its own estimates.

    Hostage says

    June 25, 2015

    Re: Once again, in trying to stretch international law concepts to cover Israel when the straightforward, long accepted and commonsensical existing interpretations exonerate it, ...

    No, as I've mentioned, Israel has been accused of deliberately using starvation as a mode of warfare and interfering with essential consignments of food and medical supplies to the point that it caused serious injury to the bodies and health of about 10 percent of the children of Gaza. That is a grave breach according to the explicit terms of Article 147 and No High Contracting Party can exonerate itself on that account by simply arguing that it is no longer an occupying power, i.e. Art. 148. No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

    Hostage says

    June 25, 2015

    Re: As the UN’s Palmer Commission has found the Israeli naval blockade to be lawful, the existence of that blockade adds nothing to the analysis.

    The report of the Palmer Commission and the two Turkel Commission reports were political exercises, not legal inquiries or fact finding investigations "conforming to international standards."See the text of the Palmer report itself in that regard and H.C.J. 4641/10, Uri Avneri et al. v. The Prime Minister et al.

    The Secretary General's Palmer Commission was operating under a cloud from the get-go, since it's mandate didn't allow it to collect its own evidence or hear testimony from eyewitnesses. It also took instructions from the two member states concerned regarding the conclusions of the report in violation of the principles contained in Article 100 of the UN Charter.

    Neither of the commissions was empowered to collect or cross examine testimony from the IDF members involved in the raid; the victims on board the ships; or the victims of the blockade in Gaza. FYI, the US had arranged for the Palmer report in order to make the formal reports from the international mandate holders, i.e. the UN OHCHR and UN HRC, "disappear". Anne Bayefsky spilled the beans about the behind the barn deal that led to its creation because she thought the Obama administration hadn't kept-up its end of the bargain:

    August 2, Ban launched his investigation, which got off the ground only because the U.S. pressed Israel to agree, and Israel took American assurances seriously. U.S. ambassador to the UN Susan Rice spelled some of them out: “The United States expects that the Panel will…obviate the need for any overlapping international inquiries.” The overlapping inquiry of the Human Rights Council, she claimed, would go away.
    ...
    Haaretz added that the Israeli government believed it had received assurances that “the review panel will not have the authority to subpoena witnesses, including Israel Defense Forces soldiers and officers.” -- http://www.weeklystandard.com/blogs/investigation-israels-action-flotilla-continue?nopager=1

    Hostage says

    June 25, 2015

    Re: Reading Hostage’s comments, a certain bias may be detected in the phrase “indigenous government,” as Gazan Arabs are indigenous to Arabia, assuming you mean to use its accepted definition. It is the Jews who are the remaining indigenous people of that area.

    Palestine was part of Arabia from the 8th century until the early 20th century. During the Arab “Golden Age” Syria was divided into five administrative districts called Junds. Even the Israeli MFA website admits that Ramla was founded at the beginning of the 8th century by the Umayyad Calif Suleiman ibn Abd el-Malik and that it served as the Umayyad and Abbasid capital of “the Province of Palestine (Jund Filistin)”. By the 13th century, the Fatamids had moved the capital of “Filastin” to Jerusalem. See page 29 of Palestine under the Moslems; a description of Syria and the Holy Land from A.D. 650 to 1500. http://www.archive.org/stream/palestineundermo00lestuoft#page/29/mode/1up

    FYI, I'm perfectly familiar with the existence of the indigenous Jewish communities located in the four Holy cities, since I grew-up in a household with an elderly relative who had been employed as a lawyer working on their behalf in the Political Department of the Jewish Agency for Palestine. I've written elsewhere that they had been placed under the protection of European public international law when the Sublime Porte was invited to participate in the Concert of Europe (or else) and had issued a unilateral declaration prohibiting discrimination on the basis of religion or nationality in the exercise of civil and political rights in any locale whatsoever. See Article 62 of the Treaty of Berlin 1878. The Jewish communities enjoyed local autonomy, including their own religious courts that governed personal status, their own secular councils and schools, their own tax collectors; and their own high religious official and representative in the central government, the Hakim Bashi. The old Yishuv's claims would be something on the order of a micro-UN member state.

    Brian from Toronto says

    June 25, 2015

    Is "Hostage" a paid PLO operative or merely an enthusiast?

    Brian from Toronto says

    June 25, 2015

    I note that "Hostage" confesses that he "wrote an article for Mondoweiss."

    And Mondoweiss is a hate site. I recommend this article from the Washington Post as an introduction:
    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/04/mondoweiss-is-a-hate-site/

    Hostage says

    June 25, 2015

    Re: Of course, this entire discussion assumes that Israel has no rights under international law to any part of Gaza (or the West Bank, for that matter). That may not be a correct assumption as the rights granted to the Jewish People under the League of Nations Mandate for Palestine of 1922 would appear to remain applicable and relevant – see UN Charter article 80.

    I can save you some trouble there. The Union of South Africa employed the same line of argumentation regarding its rights in the neighboring state of Namibia, but the UN General Assembly and the ICJ advised that its rights were terminated along with the mandate. The ICJ had a similar finding regarding rights under a terminated trusteeship in the British Cameroons. FYI, during his testimony to the UNSCOP David Ben Gurion said that the mandate had been abrogated and that the Jewish Agency didn't want a return to it. He said that, since it had been abused in the past, and could be abused again in future, the Agency demanded that it be terminated. In fact, that was the only part of the future course of action upon which the British Administration, the Arab Higher Committee, the Jewish Agency, the UNSCOP panel of experts, and the UN General Assembly seemed to unanimously agree.

    In the Gaza Coast Council v Knesset case, the Israeli High Court of Justice ordered the settlements in Gaza removed because the owners couldn't have received a better title from the military commander than the one he held himself - none at all. They could have simply reiterated the earlier HCJ decisions from the 1950s in Shimshon Palestine Portland Cement Factory Ltd. v. Attorney-General and Sifri v. Attorney-General which held that all rights under the mandate ended when it was terminated.

    FYI. One of the legal advisors to the Jewish Agency, Jacob Robinson, published a book in 1947 that presented a historical account of the Palestine Question and the United Nations. He explained, that when the Jewish Agency learned the Allied Powers had discussed a new system of international supervision to supersede the system of mandates at the Yalta Conference, that the Agency had submitted a formal request to the San Francisco Conference on the UN Organization to obtain a safeguarding clause in the Charter. The proposed clause would have prevented any trusteeship agreement from altering the Jewish right to nationhood secured by the Balfour Declaration and the Palestine Mandate. The UN Conference did just the opposite and stipulated in article 80 of the Charter that the UN organization did have the necessary power to conclude trusteeship agreements that could alter existing rights held under any mandate. -- See Robinson, Palestine and the United Nations: Prelude to a Solution, Greenwood Press, 1971 Reprint (1947), pages 2-3.

    The actual scope of application for Article 80 is "nothing in this Chapter" [Chapter 12: International Trusteeship System]. So it does not affect other treaty obligations, like those found in Chapters IV, V, VII, or XI The "decision" to terminate the mandate and place Jerusalem under direct UN supervision was taken under the terms of Chapter IV, Article 18 by 2/3rds of the members present and voting - and did not conflict with Chapter 12 at all. In fact, Articles 81 and 85 of that Chapter empower the General Assembly to place territories under direct UN administration.

    More importantly, UN General Assembly Resolution 9 (I) had reminded the members administering mandates that the treaty obligations contained in Chapter 11: "Declaration Regarding Non-Self-Governing Territories," had been assumed by all of the member states and did not require the establishment of trusteeship agreements at all. The Assembly said that those obligations were "already in full force and effect". Article 103 of the Charter deals with any conflict between those Charter obligations and an obligation under the Palestine Mandate: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. So the entry into force of the Declaration Regarding Non-Self-Governing Territories, Article 18, Article 80, and article 103 of the Charter were huge political problems for the Zionists, because they were deliberately designed to preempt the conflicting terms of any mandate.

    Article 80 in its final form, was actually incorporated at the insistence of the Arab states to support the status quo in Palestine, including the rights of the Arab majority under the 1939 White Paper policies and the de facto partition contained in the 1940 Land Transfer Ordinance. See the discussion on pages 859 and 860 under the heading "Palestine" in "The United Nations conference on international organization, San Francisco, California, April 25-June 26, 1945", Foreign relations of the United States : diplomatic papers, 1945 http://goo.gl/Oczx6g

    Hostage says

    June 25, 2015

    Re: I note that "Hostage" confesses that he "wrote an article for Mondoweiss." And Mondoweiss is a hate site.

    A number of professional journalists, university professors, and political activists blog there. Anyone can read my comments and articles and see that I don't engage in hate speech or tolerate those that do so. If you want to read about the minority protection plan for Arab persons and property in Israel that the provisional government formally accepted, I've written about it at length. Its all thoroughly documented with reliable third-party verifiable sources and it doesn't contain any hate speech. http://mondoweiss.net/2015/05/congress-legislatures-against#comment-770309

    Re: Is "Hostage" a paid PLO operative or merely an enthusiast?

    The main problem in Palestine has always been the refusal of either side to recognize and extend equal human rights to the other party. I'm no fan of the PLO, but it has signed on to the key IHL and UN HL conventions and adopted a Basic Law which promises that respect for the sanctity of all divine religions will be maintained and that Palestinians will be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability.

    I simply encourage Israel to do the same thing and for the treaty monitoring bodies to work with them to eliminate human rights violations.

    The PLO doesn't need paid operatives while the Israeli press publishes headlines which explain that the establishment of the state of Israel was conjoined to serious crimes against humanity which displaced people on a massive scale that wouldn't have gone unnoticed in Eastern Europe during WWII:

    "100-Year-Old General: We Razed Arab Villages, So What?: Brig. Gen. (res.) Yitzhak Pundak: If we hadn't done it, there would be a million more Arabs and there would be no Israel.
    http://www.israelnationalnews.com/News/News.aspx/168912#.VYuDd7y37tR
    ...
    100-Year-Old Becomes Israeli Major-General
    100-year-old finally gets rank of “Major General” that he earned 60 years ago.
    http://www.israelnationalnews.com/News/News.aspx/171126

    Gen. Pundak: Kill 500 in Gaza and They'll be Quiet
    Newly promoted 100-year old general who was Gaza Governor supplies his formula for peace.
    http://www.israelnationalnews.com/News/News.aspx/171139#.VYuPlLy37tQ

    I happen to think those sort of statements are examples of officially sanctioned incitement and the public trivialization of serious crimes against humanity made by one of the actual commanders responsible for exercising military authority over Gaza in the past.

    One of the conditions for termination of a mandate regime was the acceptance of a minority agreement. The representative of Israel acknowledged that its treatment of the Arab minority was an obligation that was capable of fulfillment by Israel alone and that it was not altered by the attitude of the neighboring Arab states. Abba Eban claimed that the Declaration of Independence and its assurances of equality under the law, which had been signed by the members of the provisional government, was promulgated as a fundamental law of State as required by the UN resolution. It had required a declaration that recognized its stipulations regarding human rights and equality as fundamental laws of the State and it said "no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them."

    More than sixty years on, Israel claims that permitting refugees to exercise the same fundamental human rights the Grand Chamber recognized in these two EC judgments would literally cause it to cease to exist. The PLO doesn't need to have paid operatives when the government of Israel makes headlines like these:

    MKs debate protection of 'equality' in future constitution
    Religious MKs reject inclusion of ensurance of equality, saying it would contradict Judaism.
    http://www.haaretz.com/news/mks-debate-protection-of-equality-in-future-constitution-1.234565

    Lapid: Israel’s definition as Jewish and democratic is an unsolvable contradiction: “Judaism is a whole line of values that have existed for thousands of years, but the democratic idea is a new idea, and significant parts of it stand in contradiction to Judaism”
    http://www.jpost.com/Diplomacy-and-Politics/Lapid-Israels-definition-as-Jewish-and-democratic-is-an-unsolvable-contradiction-330067

    Binyamin Netanyahu: 'Arab voters are heading to the polling stations in droves' http://www.theguardian.com/world/2015/mar/17/binyamin-netanyahu-israel-arab-election

    Charlie in NY says

    June 25, 2015

    Yes, Hostage's admission of writing for Mondoweiss explains all his special pleading. Arabia and its indigenous Arab population apparently expanded by Arab conquest to include Israel. Under that reasoning, Britain and its indigenous populations expanded to North America, India and eventually Israel through conquest as well. Don't you see anything wrong with your theory?
    Also, in the Namibia case, South Africa was in the shoes of the UK not of the Jewish Agency. When the Mandate terminated, the rights flowed to the intended beneficiaries. There, it was the Namibians. I the Palestine Mandate it was the Jewish People. Not surprisingly, your understanding of Article 80 is precisely backwards and the final decision on the White Paper was its rejection as inconsistent with the Mandate by the League Council charged with such review- so no rights were created.
    Simply put, the Mandate created rights for the Jewish People that the UN has no competence to alter or diminish. Those include having demarcated the boundaries of the anticipated Jewish state. That Israel has not formally claimed its maximal entitlement is not relevant under the doctrine of uti posiditis juris as it has never explicitly rejected or ceded them.

    Marko Milanovic says

    June 25, 2015

    This comment thread has ran out its usefulness, plus it has degenerated to ad hominem arguments. Comments closed.