Monday, December 29, 2008

International Law and The Fighting in Gaza

Justus Reid Weiner and Avi Bell have written a paper, International Law and The Fighting in Gaza [PDF], that goes into the issues both of how International Law actually applies to the current Israeli operation, and into the overall question of what Occupation actually means.

One thing that becomes very clear is that the critics of Israel engage in definitions of convenience when they claim that Israel is contravening International Law.

In their conclusion, Weiner and Bell write:
The Palestinian-Israeli fighting in Gaza has been characterized by the extensive
commission of war crimes, acts of terrorism and acts of genocide by Palestinian fighters.

On the other hand, Israeli counter-measures have conformed with the requirements of international law, with the possible exception that Israel may be legally required to cut off aid to the Palestinians. Israel may continue to impose economic sanctions and engage in military strikes including a full-scale assault on the Gaza Strip, as long as it continues to abide by the basic humanitarian rules of distinction and proportionality.

Other states can, and must, do more to encourage compliance with international legal standards by fulfilling their own legal obligations, while refraining from raising specious charges against Israel. International law requires Israel and other states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.
In one section of the paper, the overall issue of International Law is addressed:
Flawed Criticisms Made by Opponents of Israel 

Traditional opponents of Israel have criticized it for alleged violations of international law. One of the strongest sources of criticism has been the Office of the “Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967” in the UN Human Rights Council. The Special Rapporteur’s office was created by the Human Rights Commission (since replaced by the Human Rights Council) in 1993 to issue onesided criticisms of Israel; the mandate specifies that the Rapporteur is “[t]o investigate Israel’s [alleged] violations of…international law, international humanitarian law and the Geneva Convention…in the Palestinian territories occupied by Israel since 1967,” but does not request that he also investigate Palestinian violations.45 The Rapporteur has used the one-sidedness of this mandate to justify anti-Israel bias in his reporting and has publicly and repeatedly interpreted his mandate as requiring him to criticize only Israel.46 As befits the Rapporteur’s bias, the Rapporteur has ignored the fact that he has no jurisdiction to investigate alleged Israeli wrongdoing in Gaza. Since Israel’s withdrawal from Gaza in 2005, no credible legal argument can be made that Gaza is a “Palestinian territor[y] occupied by Israel since 1967.” The Rapporteur therefore lacks jurisdiction. Traditional opponents of Israel have criticized it for alleged violations of international law.

Nonetheless, Rapporteur reports have been replete with inaccurate and biased criticism of alleged Israeli wrongdoing in Gaza. John Dugard, who served as the Special Rapporteur from the inception of the post in 1993 until 2008, issued a statement on January 18, 2008, criticizing Israeli defense measures as illegal. Firstly, Dugard claimed that Israel’s attack on a Hamas headquarters in a Palestinian Interior Ministry building in Gaza was illegal because the target was “near a wedding venue with what must have been foreseen loss of life and injury to many civilians.”47 However, the Palestinian Interior Ministry building was certainly a legitimate target under the rules of distinction since it makes a definite contribution to Hamas’ hostilities. The fact that one Palestinian civilian lost her life in the Israeli strikes is unfortunate,48 but certainly not a violation of the rule of proportionality, which authorizes collateral damage to civilians where justified by military necessity.49

Secondly, Dugard asserted that Israel’s closure of its borders with the Gaza Strip constitutes illegal “collective punishment.”50 Yet there is nothing in international law that requires Israel to maintain open borders with a hostile territory, whatever its sovereign status. Similarly, as will be discussed below, exercising legal counter-measures against a hostile entity does not constitute “collective punishment” under international law. Dugard’s refusal to level the same charge against Egypt, which also closes its borders with the Gaza Strip at times, underlines the bias that accompanies this legally inaccurate statement. Nonetheless, Rapporteur reports have been replete with inaccurate and biased criticism of alleged Israeli wrongdoing in Gaza.

At the same time, in sharp contradiction to the dictates of international law, Dugard offered several invalid excuses for Palestinian terrorism. In his report of January 21, 2008, Dugard wrote that “[c]ommon sense…dictates that a distinction must be drawn between acts of mindless terror, such as acts committed by Al Qaeda, and acts committed in the course of a war of national liberation against colonialism, apartheid or military occupation....They must be understood as being a painful but inevitable consequence of colonialism, apartheid or occupation.”51

Dugard failed to mention that such a distinction is forbidden by international law. Security Council Resolution 1566 specifically states that illegal terrorist acts “are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.”52

In a similar vein, in the same report, Dugard attempted to downplay Palestinian terrorism by omitting all mention of international conventions and resolutions violated by Palestinian terrorism. Instead he inaccurately accused Israel of committing illegal terrorism by, for example, targeting military strikes at Palestinian terrorists and flying planes at supersonic speed.53 Needless to say, there is no international law treaty, UN resolution or international legal custom that renders such Israeli acts as “terrorism” or illegal in any other way.

Difficult as it is to envisage, Richard Falk, Dugard’s successor to the post of Special Rapporteur, appears poised to surpass Dugard in bias and legal inaccuracy. Falk has repeatedly and outrageously accused Israel of genocide, claiming in 2002 that “Israel is seeking to obliterate the existence of the Palestinian people,”54 and in 2007 that he felt “compelled to portray the ongoing and intensifying abuse of the Palestinian people by Israel” as a repeat of the Holocaust because Israeli policies “express so vividly a deliberate intention on the part of Israel and its allies to subject an entire human community to life-endangering conditions of utmost cruelty.”55 Shortly after his appointment to the post of Special Rapporteur on March 28, 2008,56 Falk defended the appropriateness of his comparisons of Israeli treatment of Gazans to genocidal Nazi policies.57 

To their credit, some foreign officials, such as Franco Frattini (until recently the European Commissioner for Justice, Freedom and Security),58 have correctly defended the legality of the Israeli actions. Others, such as Dutch Foreign Minister Maxime Verhagen, have criticized UN bias against Israel.59 

Later in the paper, Weiner and Bell address different aspects of the alleged occupation of Gaza by Israel:

The Legality of Israeli Military Actions under The Laws of Occupation

1. Is Gaza Occupied?

Some groups have claimed that the Gaza Strip is “occupied” by Israel according to the Fourth Geneva Convention, in which case Israel would be required to “ensure the food and medical supplies of the population” as well as “agree to relief schemes on behalf of the…population” and maintain “public health and hygiene.”100

However, there is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another “High Contracting Party” (i.e., a state party to the convention) and the occupier “exercises the functions of government” in the occupied territory.101 Yet, the Gaza Strip is not territory of another state party to the convention - Egypt, which previously controlled Gaza, is a party to the convention, but Gaza was never Egyptian territory. And Israel does not exercise the functions of government - or, indeed, any significant functions - in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or any other state. 

Some have argued that states can be considered to be occupiers even of areas where they do not declare themselves in control, as long as the putative occupiers have effective control. For instance, in 2005, the International Court of Justice opined that Uganda could be considered the occupier of Congolese territory, over which it had “substituted [its] own authority for that of the Congolese Government,” even in the absence of a formal military administration.102 Some have argued that this shows that occupation may occur even in the absence of a full-scale military presence, thus claiming that this renders Israel an occupier under the Fourth Geneva Convention.103 However, these claims are clearly without merit. First and foremost, Israel does not fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Secondly, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza.

Military superiority over a neighbor does not itself constitute occupation. If it did, the U.S. would have to be considered the occupier of Mexico and Canada, Egypt the occupier of Libya, Iran the occupier of Afghanistan, and Russia the occupier of Latvia.

Moreover, it is difficult to avoid the conclusion that foes of Israel that claim that Israel has legal duties as the “occupier” of Gaza are insincere in their legal analysis. If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, Israel would be required to take “all the measures in [its] power to restore, and ensure, as far as possible, public order and safety.”104 Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias.

Additionally, claims of occupation necessarily rely upon a belief that the occupying power is not the true sovereign of the occupied territory. For that reason, those who claim that Israel occupies Gaza must believe that the border between Israel and Gaza is an international border between separate sovereignties. Yet, many of those claiming that Gaza is occupied, such as John Dugard and Richard Falk, simultaneously and inconsistently claim that Israel is legally obliged to open the borders between Israel and Gaza. No sovereign state is required to open its international borders.
Read the whole thing.

The obvious problem of course is that Israel critics do not really care about International Law or at least have not looked into it sufficiently to really understand the issues. Thus articles such as this one are basically preaching to the choir.

As long as individuals and agencies remain willfully ignorant of the very topics they preach about, the issues will continue to be clouded--to Israel's detriment.

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