It’s Not Wrong, It’s Illegal: Situating the Gaza Blockade Between International Law and the UN Response – Noura Erakat
11 UCLA J. Islamic & Near E. L. 37 (available online for free download).
Living in Gaza for 8 months and sitting helplessly while Israeli bombs were falling all around us for 8 days in November 2012, I had a unique opportunity to experience “war” close-up and personal in a way that most Americans will never understand.
The experience stunned me and filled me with questions.
How could anyone call this a “war”? It certainly was not a war of equals. Has the definition of “war” been so obscured (war on drugs, war on terrorism) that any act of aggression might constitute an act of war?
Listening to President Obama on the radio say that “Israel has a right to defend herself” made me yell “Don’t the Palestinians in Gaza have the right of self-defense too?”
Why wasn’t anyone talking about the OCCUPATION when they reported about Hamas and others firing rockets into Israel, the growing death toll in Gaza, and the ceasefire negotiated with the help of Egypt’s new President Morsi? All of the news reports from the West that I saw online conveniently omitted the OCCUPATION. Why?
It seemed like I was living in an alternate universe while I was in Gaza, and I was very confused. Now, however, Noura Erakat’s law review article has cleared up a lot of my confusion. Thank goodness, there’s no alternate universe, just an impotent United Nations and a deliberate, ongoing campaign by Israel and the United States to blur the distinction between jus ad bellum and jus in bello.
War is governed by two different branches of international law. As an attorney, you would think I should have known this, but I didn’t. So it’s reasonable to assume that most journalists don’t know it either, but Obama and Netanyahu should.
Jus ad bellum is the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, which declares in Article 2: “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; and in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq’s aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities.
The easy way to remember the difference between the two is to remember that jus ad bellum refers to the laws governing when a state may START a war, and jus in bello refers to the laws governing how a state must CONDUCT the war.
Erakat says that Israel is trying deliberately to change the law, blurring the distinction between the two and challenging the existing legal order: (a) by changing what is the permissible use of force that is allowed during an occupation, and (b) by changing the legal definition of “self-defense”.
My confusion has cleared considerably after reading Erakat’s article. I encourage everyone (lawyers and non-lawyers alike) to read it, available here.
Much of her argument hinges on whether Israel occupies the Gaza Strip. Israel says it evacuated the Gaza Strip in 2005 when it removed its settlements and soldiers, but Erakat notes that Israel maintains “effective control” over Gaza’s air space, seaports, telecommunications networks, electromagnetic sphere, tax revenue distribution, and population registry. Israel maintains control over movement across 5 border crossings, and I will add that Egypt appears to be doing Israel’s bidding as far as controlling the Rafah border crossing.
Israel has also made the argument that there is no OCCUPATION in the West Bank because there was no State of Palestine in 1948 when it seized the land. Instead, Israel says it’s merely “administering the territories” despite the fact that the UN Security Council, the International Court of Justice, the UN General Assembly and the Israeli Supreme Court all reject that argument.
If there is no OCCUPATION, then Israel has no legal obligation as an occupying power under the Fourth Geneva Convention, but if there is an OCCUPATION, her responsibilities to the Palestinians are greater and she cannot invoke the right to self-defense in the same way. The permissible use of force and the right to self-defense are treated differently under jus in bello and jus ad bellum.
Under jus in bello, the permissible use of force is expansive. The principles of distinction and proportionality apply but Israel can probably use greater firepower than would be allowed under OCCUPATION, where the permissible use of force is limited to law enforcement and policing. That is why it’s very important to understand the distinction between the two and why Israel is working so hard to control the messaging about the OCCUPATION.
Israel is trying to avoid the constraints of international humanitarian law when it invokes “self defense.” The right of self defense, Noura Erakat writes, has been under debate since the US attacked Iraq in the early 1990s. Should the legal definition be subject to the broad framework of customary international law? Or considered within the narrow constraints of the UN Charter? Can self-defense be invoked against non-state actors?
Israel cites two UN Security Council Resolutions adopted in 2001 following the 9/11 attacks (Res. 1368 and Res. 1373) which give states the right to defend against terrorist attacks. Israel frames all acts of Palestinian violence as terrorism triggering these resolutions. It appears Obama has adopted that same strategy, but Erakat makes a good argument that these resolutions do not apply to the Israeli-Palestinian situation.
Israel has rendered Gaza into a legal black hole where the only applicable law is its own.
Noura Erakat has some strong words about the U.N. Security Council’s failure to uphold the rule of law, in the way it has handled Israel’s actions vis a vis Palestinians.
The blockade on Gaza imposed in June 2007 and ongoing to this day, Operation Cast Lead (2008-2009), the assault against the Mavi Marmara in international waters in 2010, and the most recent assault last November which I witnessed in Gaza, are examples of the Security Council’s failure to hold Israel accountable under international law, failed to explicitly condemn the illegal blockade, and politicized international humanitarian law.
The United States has been complicit in this failure. Between 1972-1997, the US used its veto power on the UN Security Council 32 times to shield Israel from rebuke, nearly 1/2 of its vetoes since the founding of the United Nations. (That fact alone bolsters my belief that nothing will change in Israel and Palestine until Americans change our government’s subservience to Israel. We must educate our Congress and President.)
Noura Erakat ends her law review article with some very clear recommendations for the United Nations, including reforming how the veto process works on the Security Council. I wonder if anyone at the UN has read her piece. They should.