Manipulating International Law as Part of Anti-Israeli "Lawfare" for the Jerusalem Center for Public Affairs.
Here is a summary of the main points of his paper:
- Israel's record of compliance with international law is remarkably strong. In a long series of decisions, the Israeli High Court has ordered the Israeli government, army, and security services to change policies that, in the court's view, were in violation of customary international law. The court has even intervened in actual combat situations.
- Perhaps because Israel's detractors are aware of this reality, they have undertaken a process of manipulating international law in a way that invents rules that are applied only to Israel and not to other states or in other situations.
- Israel's detractors invented a new international legal concept called "illegal occupation." In an armed conflict, international law clearly permits military occupation. The UN Security Council has never declared Israeli occupation to be illegal. U.S. occupation of Iraq after the First Gulf War was universally considered a legal act.
- It is often presented manipulatively as a legal axiom that the Green Line already has the status of a legally binding border. By signing a peace agreement, Israel and Jordan have now mutually acknowledged the termination of the Armistice Agreement and its demarcation line. The validity of an armistice line expires with the expiration of the armistice. Therefore, formally, there is no longer any legal validity to the Green Line.
- By any accepted legal standard, Gaza is not under Israeli occupation. International law requires that, for an area to be considered as under occupation, the territory must be "actually placed under the authority of the hostile army." Again, there appears to be a unique definition of "occupation" applicable only to Israel.
- The essence of any legal system is that law applies equally to all. Devising tailor-made rules of international law for application only where Israel is concerned undermines international law and can have an insidious and corrosive effect on the rule of law in general.
In his article, Professor Sabel notes that in addition to manipulating international law and the facts, enemies of Israel have also attempted to create new rules that apply only to Israel.
For example:
- Proportionality in combat
"Israel must not use weapons that are not proportionate to the weapons used by terrorist groups. Regarding other states, there is no such rule; on the contrary, all armies try to concentrate superior forces and arms against enemy positions and forces. This universal military practice, however, does not prevent Israel from being accused of using “disproportionate” force in actual combat situations."
- Civilian casualties
"...as far as Israel is concerned, any enemy civilian casualties are presented as the result of a “war crime,” even though it is acknowledged that Israel takes immense steps to try and prevent and minimize civilian casualties."
Robbie Sabel is professor of international law at the Hebrew University of Jerusalem and former legal adviser to the Israel Ministry of Foreign Affairs. Among his publications: Procedure in International Law (Cambridge University Press, 2nd ed., 2006) (awarded the Certificate of Merit of the American Society of International Law); International Law (the Sacher Institute of the Law Faculty of the Hebrew University of Jerusalem, 2nd ed., 2010).
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