Category Archives: Occupation

The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War

By Theodor Meron (The American Society of International Law, 2017)

Judge Meron’s 19-page article is available here to download.

Rarely does a jurist have the opportunity to render a legal opinion twice on the very same case or controversy fifty years apart.

Theodor Meron

Theodor Meron

Theodor Meron was 37 when he was appointed the Legal Adviser of the Israel Ministry of Foreign Affairs shortly after the Six-Day War. He was asked to address some of the international legal implications that followed from that war.

He opined on September 14, 1967 that “the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49(6)).” This prohibition is categorical, he wrote, and “not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state.”

In March 2017, his opinion has not changed. Given the inexorable demographic change in the West Bank over the past fifty years; the adoption by the Security Council of Resolution 2334 on December 23, 2016; John Kerry’s unprecedented speech delivered on December 28, 2016; and Netanyahu’s immediate rejection of the “shameful UN resolution” — Judge Meron felt compelled to speak up again in support of international law and its requirements and application to the settlements in the occupied West Bank.

Judge Meron’s career is noteworthy and worth recounting here because his opinion carries weight, except with Israeli leaders.

Meron

Theodor Meron – President of the International Criminal Tribunal for Rwanda

Judge and President of the United Nations Mechanism for International Criminal Tribunals; Judge and Past President of the United Nations International Criminal Tribunal for the former Yugoslavia; former Judge of the United Nations International Criminal Tribunal for Rwanda; Charles L. Denison Professor Emeritus and Judicial Fellow, New York University School of Law; Visiting Professor, University of Oxford, since 2014; past Co-Editor-in-Chief of the Journal; past Honorary President of the American Society of International Law.

Settlements in the Occupied West Bank

What is the scope of the problem? The Palestinian president says there will be no negotiations until Israel ends the expansion of settlements in the occupied West Bank. The Israeli prime minister says the Palestinians must come to the bargaining table with no preconditions, but he demands that the Palestinians first recognize Israel as a Jewish state. There have been no negotiations since 2010.

2016-mena-israel-overviewmap

Today there are nearly 600,000 Israeli settlers living in the West Bank and East Jerualem. There are 127 government-sanctioned Israeli settlements (not including East Jerusalem and Hebron), and approximately 100 “settlement outposts”. According to the Central Bureau of Statistics, the annual growth rate for the settler population (excluding East Jerusalem) in 2015 was more than two times higher than that of the overall population in Israel: 4.1% and 2% percent, respectively.  Translated: there are more Israelis today moving to Palestine than to the State of Israel.

Check out this segment on NPR from December 2016 about the settlements.

The Jewish settlements were illegal in 1967 and they remain illegal today.

The Fourth Geneva Convention, adopted in 1949 to protect civilians in a war zone, is considered the “gold standard of humanitarian law.” While 196 countries have signed on, the United Nations concluded in 1993 that the Geneva Conventions had passed into customary law and therefore everyone is bound by them.

What does the Fourth Geneva Convention require of the occupying power (Israel) towards the protected persons (Palestinians) in the territories it occupies?

  1. No collective punishment (article 33) – including no pillage, intimidation, or terrorism. Collective punishment is considered a war crime.
  2. May not forcibly deport protected persons or transfer part of its own civilian population into the occupied territory (article 49).
  3. Must facilitate the proper working of all institutions devoted to the care and education of children (article 50).
  4. No destruction of property belonging to the protected persons or to public authorities (article 53).
  5. Maintain the public health and hygiene along with the medical facilities in the occupied territories (article 56).

Nakba refugees

Despite clear and strong opinions from the International Court of Justice, supported by a score of Security Council resolutions, the International Red Cross, and a rare consensus of the international community on the applicability of the Fourth Geneva Convention to the occupied Palestinian territories, the State of Israel has built a 50-year record of parsing the Fourth Geneva Convention, applying provisions it likes while rejecting others. “This opacity is made worse,” Judge Meron writes, “by the reluctance of Israel to divulge in public the list of the Fourth Geneva Convention’s humanitarian provisions which it is prepared to apply.”

Disrespect for international law is, alas, not unusual in the affairs of states. It is rare, however, that disrespect of an international convention would have such a direct impact on the elimination of any realistice prospects for reconciliation, not to mention peace. And it is rarer still that such disrespect of internatioal law should subsist given the number of pronouncements on the matter.

Israeli leaders rejected Meron’s opinion in 1967 and, undoubtedly, reject it today. They hinge their position on the argument that the territories are not occupied because conquered territory only becomes occupied territory when it belongs to a legitimate sovereign that was ousted. This theory disputes the status of Jordan as such a sovereign of the West Bank in 1967 which, in the opinion of Israel makes the Geneva Convention inapplicable de jure. The government has simply decided, in the absence of an international obligation to do so, to act de facto in accordance with the humanitarian provisions of the Convention.

Judge Meron rejects this argument summarily, asking “what would prevent every conquering state from contesting the sovereignty of every defeated state, even where no legitimate doubts about the sovereignty arise?” In a nutshell, the status of the lands conquered in the Six Day War has no bearing on the applicability of the Fourth Geneva Convention to Israel, as the conquering power.

While the Fourth Geneva Convention bestows rights on the “protected persons” (Palestinians in this case), the Hague Convention No. IV establishes responsibilities on the occupying power, and Israel’s Supreme Court has recognized the applicability of the Hague Convention No. IV as customary law to the West Bank.

There is the requirement to respect private property (Article 46), and the property of municipalities, and that of institutions dedicated to religion, charity and education, and arts and sciences. (Article 56). The occupying power must also safeguard and administer the real estate in accordance with the rules of usufruct.

With the construction of the “security wall” encroaching on Palestinian lands, and a record number of housing demolitions in the West Bank in 2016, the reasonable question Palestinians and the rest of the world might ask is “Who is going to hold the State of Israel accountable for its violations of international law?”

12794787_10208838393703043_5184863994902971158_o Judge Meron concludes his 2017 opinion:

Those of us who are committed to international law, and particularly to respect for international humanitarian law and the principles embodied therein, cannot remain silent when faced with such denials or self-serving interpretations.

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a two-state solution, and thus of reconciliation between the Israelis and Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other people can no longer be accepted in our time.

 

 

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Senators should not build unity on the backs of Palestinians

When do U.S. Senators stand lockstep together?

When the American Israel Public Affairs Committee (AIPAC) convinces them that the United Nations is biased against the State of Israel.

The Wall Street Journal notes:

It’s rare, especially these days, for all 100 U.S. Senators—from Bernie Sanders to Ted Cruz, from Elizabeth Warren to Mitch McConnell—to agree on something. But the scourge of anti-Israel bias at the United Nations is such an issue.

So all of them, including Senators Warren, Sanders, and my two Senators from New Mexico signed on to the letter undoubtedly written by AIPAC, the pro-Israeli lobbying operation ensconced in Washington DC.

The letter is a warning note to Secretary-General Guterres – “reform your agencies from within or pay the consequences.”

Although, as Republicans and Democrats, we disagree on many issues, we are united in our desire to see the United Nations improve its treatment of Israel and to eliminate anti-Semitism in all its forms.

My response sent to my two U.S. Senators follows.  I hope they hear from many other constituents.

May 10, 2017

RE:   April 27 letter to Secretary-General Antonio Guterres – Israel & Palestine

Dear Senators Udall and Heinrich,

I’m very disappointed with your signatures on the letter (likely drafted by AIPAC) to the United Nations regarding Israel.

Senator Martin Heinrich

Sen. Martin Heinrich (D-NM)

You, along with your colleagues in the Senate, have adopted Israel’s strategy of deflecting legitimate and worldwide criticism of Israel’s brutal 50-year occupation by focusing criticism on the messenger, the United Nations. We’ve all seen this same “strategy of deflection” coming from the White House in the form of childish Tweets. Your letter is just as childish.

Threatening the United Nations and demanding internal “reforms,” based on false assertions that the U.N. is unfairly targeting Israel, belies the fact that the community of nations stand together in their condemnation of Israel’s long-term, illegal occupation of Palestine.

A quick online review of recent actions in the United Nations reveals that the U.S. stands alone with the Marshall Islands, Federated States of Micronesia, Nauru, Palau (and sometimes Canada) in supporting Israel in the U.N. General Assembly. Every other nation is united in speaking the truth about Israel’s continuing violations of international humanitarian law and the law of occupation. Your letter’s bullying demands to the Secretary-General reflect poorly on the United States, but it’s certainly a testament to AIPAC’s power over the U.S. Senate.

I particularly want to draw your attention to the letter’s outrageous claim about “UNRWA’s troubling anti-Israel bias and activities.” You write that “UNRWA must pursue reforms or risk significant consequences.” I’m personally familiar with UNRWA’s solid work in the Gaza Strip and I find this characterization and threat totally unacceptable. The Senate’s blind loyalty to Israel’s hasbara must end.

Udall

Sen. Tom Udall (D-NM)

I’m also astonished that you oppose the international call for Boycott, Divestment and Sanctions (BDS) as stated in the letter to the U.N.  Peaceful, nonviolent methods to end Israel’s occupation deserve your strong support, not condemnation.

Please learn the facts about the occupation, beginning with the fact that the Gaza Strip will be unlivable by 2020.

Israel’s leaders have proven over many decades that they are incapable or unwilling to end the occupation. If the United States cannot play a constructive role, then please support the United Nations and its constituent agencies in the work they are doing in the Middle East.

Finally, I invite you and your staff to join me in UNRWA-USA’s 5K run in Washington, DC in September.  Your support for this worthy cause would be greatly appreciated.

Sincerely,

Lora A. Lucero

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How do I talk with you?

 

Four years …. its been four years since I left Gaza and returned home to friends and family. Little did they know that I was a changed woman.

After nine months in Gaza, my eyes and heart were open. I cannot unsee what I’ve seen. I certainly will not close my heart to the realities I learned about the occupation. And I’m not going to forget.

IMG_4249Although returning to Gaza is my first choice today, it appears that Egypt, Israel and even the U.S. government have their own ideas about travel to the Gaza Strip, so I’ve wondered if there’s perhaps another path I’m suppose to follow.

There’s certainly much I can learn about the occupation from books and others more knowledgeable. Maybe I’m suppose to share what I’ve learned with Americans, add my voice to the parade beating the drums for the U.S. government to change its obsequience and blind loyalty to Israel.

I’ve spent the past four years walking a tight rope, teetering from side to side, not wishing to offend anyone with my words about Israel and the occupation, but to speak the truth when the opportunities arise. My options for speaking out have been self-imposed and narrowly-constrained to carefully account for the “sensibilities” of those around me.

  • A friend told me bluntly, “don’t talk about politics. I want to keep things peaceful around here.” I suspect others feel the same way but don’t want to tell me to my face.
  • A family member called me an anti-Semite while another said my words about Israel hurt her to the core because Israel is like a brother.
  • Another family member said my conversation about Israel was the same as asking Jews who support Israel to “commit psychological suicide.”
  • Some have looked at me like I’m a broken record. “Get a life, there’s more than the occupation to worry about.” One friend recommended that I channel my “do gooder” nature into the issue of female trafficking!

I’ve “unfriended” family members on social media to avoid bursting their protective bubbles. I’ve bitten my tongue and kept quiet in the company of some who might be offended. I’ve rationalized to myself that it’s better to be strategic and use my words wisely. If my goal is to change public opinion, and ultimately U.S. foreign policy, then beating someone over the head with the hammer for peace and justice is counter-productive.

Today, however, I turned the corner. Something snapped.

I’m not the same woman-mother-sister-aunt you thought you knew in 2012.  Back then, I knew about oppression, occupation, inhumanity, and all the rest of the human condition from an intellectual point of view.  I was very well informed, better than the average American, or so I thought.

Today, I’m connected with the Palestinians at the cellular level. I feel the occupation in a way that words cannot begin to describe. This isn’t to say that my experience can replace the life experiences of Isra, Samir, Motasem, Mohammed, and the generations of Palestinians who have grown up and lived under occupation. Never!  Their shoes can never be my shoes, and vice versa.

But I cannot ignore and turn my back on them either. I can’t pull the wool over my eyes. I can’t fill my remaining days with other “do gooder” projects in an attempt to forget the truth I know in Palestine. And your ability to do just that really burns me.

How do I talk with you?

Your well-being is just as important to me as the well-being of the Palestinians. This isn’t a zero-sum game where my attention in one direction should harm or distract from another direction.

My personal growth and the love I found in Palestine should help me be a better person in every way, not just a better advocate on behalf of Palestinians’ rights.

But I feel you shut me down and disrespect me when you ignore me and prefer to remain in a cocoon of complacency with the status quo. The status quo is not OK!  Our government’s direct and obscene support of Israel is just as responsible for the Palestinians’ suffering and injustices as are the laws enacted in the Knesset and the orders given to the Israeli Defense Forces.

How do I talk with you?

Silence is no longer an option. But I’m willing to listen to you as deeply as I hope you will listen to me.

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Oceans of Injustice

Many first-time visitors to the Occupied West Bank & Gaza return home numb from the experience. How could man treat his neighbor this way in the 21st century?

The oceans of injustice we witness there impact each of us in different ways. After her first visit in 2013, Farah Nabulsi returned home to the UK and wrote down her feelings in a therapeutic attempt to come to grips with her experience.

Then she created Native Liberty, a not-for-profit media production company that aims to rehumanize the Palestinians and draw attention to the injustices they face.

The fruits of her labor gave birth to Oceans of Injustice. Check out her website here.

Baltimore Palestine Solidarity Oceans of Injustice

Thanks to Baltimore Palestine Solidarity, I viewed three of her short films (Oceans of Injustice, Nightmare in Gaza, and Today They Took My Son) and then skyped with the filmmaker afterwards. She told us what motivated her to create the films, and her future projects.

“The Palestinians have been suffering for such a long time on such a large scale that its become normalized.” She wants her films to humanize the Palestinians and show the rest of us that they are just like you and me.  The occupation is NOT normal.

Oceans of Injustice will be released on May 16.  If you want to help people around the world to begin to feel what it’s like to be a Palestinian under occupation, please follow these steps:

1. Visit http://thndr.me/Ll4c5p

2. Click on “Support”, then “Support with Facebook” Or “Support with Twitter” (on your phones or computers)

3. Confirm your support when prompted.

I’m in awe of Ms. Nabulsi’s actions when it’s so easy to fall into the trap of believing that we have no power to change the occupation.

power quote

 

 

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“Gaza Strip is not occupied,” says Israel’s Supreme Court, as Gaza is thrown into darkness

I just read the Ahmed decision by the Supreme Court of Israel. This case involves a petition filed in 2007 by the Palestinians against the State of Israel regarding the reduction of fuel supplies and electricity to the Gaza Strip.  Recently, the American Friends Service Committee prepared a short description of the problem here.

In 2005, Israel removed its settlers and soldiers from the Gaza Strip. The Supreme Court concluded that “Israel no longer has effective control over what happens in the Gaza Strip” and so “Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law.”

The Supreme Court ruled in favor of Israel, in part because

(1) Israel asserts it is monitoring the fuel supplies and electricity delivery to the Gaza Strip to meet the humanitarian needs of the people in Gaza;

(2) Israel says that the Palestinian officials have the capability to manage the load reduction;

(3) it’s better that the parties negotiate between themselves regarding the issue of fuel delivery and electricity; and

(4) there is a big distinction between the parties — one is fighting in the name of the law (Israel) and the other is fighting against the law (terrorists = Hamas).

Quick Facts • Less than half–only 45 percent—of Gaza’s power needs are now being met. Rolling blackouts leave residents with only six to eight hours of power each day. • Since 2013, the Gaza power plant has operated at less than half capacity. The plant regularly has to shut down, due to fuel shortages caused by Israeli restrictions on importing fuel. • Since 2010, at least 29 people—24 of them children— have died in Gaza from fires or suffocation directly linked to power outages. • Over 70 percent of Gaza households have access to piped water for only six to eight hours once every two to four days, because of the limited power supply.

I find the Ahmed decision troubling for several reasons:

(1) The Supreme Court’s rather cursory conclusion that Israel does not occupy the Gaza Strip. No occupation = no duty under the international laws of belligerent occupation. This conclusion appears to have been reached without arguments proffered by the parties on this very important issue, and almost as a side note to the court’s decision.

(2) The Supreme Court’s characterization of the parties in the case — one is law-abiding and fighting to preserve the law, while the other is a terrorist organization fighting against the law — demonstrates the inherent bias and lack of judicial neutrality that permeates the decision. The Supreme Court also demonstrates its lack of objectivity when it cites with approval Israel’s statement that the Palestinians are capable of managing the load reduction so as not to harm hospitals, etc., while dismissing without discussion the contrary arguments made by the Palestinians.

(3) While the Supreme Court acknowledges that Israel has a responsibility to meet the “essential humanitarian needs of the civilian population” in Gaza, it doesn’t provide any guidance about what constitutes “essential humanitarian needs” and appears to defer to Israel’s assertion that the State recognizes its responsibility and will monitor the delivery of electricity and fuel so as to meet its responsibility. (That must be cold comfort to the civilians sitting in the dark on a cold winter night in Gaza, or to the children who have died in house fires due to the candles.)

(4) The issue of the nexus between Israel’s rationale for reducing the electricity and fuel to Gaza seems to be accepted carte blanche by the Court without any critical examination. Israel says its “decision to limit the supply of fuel and electricity to the Gaza Strip was made in the framework of the State’s operations against the ongoing terrorism.” Doesn’t Israel have a duty to show the Court a nexus —- that the reduction of electricity and fuel has some measurable impact on reducing the terrorism (rockets)? If there is no nexus, then isn’t it fair to say that Israel’s actions, in fact, constitute collective punishment against the civilian population?

• Hospitals provide only limited services because they rely on generators, which produce insufficient and unstable electrical supplies that can damage sensitive equipment. • Up to 90 million liters of untreated sewage are discharged into the Mediterranean Sea each day in part due to electrical and fuel shortages. • Schools often function without electricity, leaving students in the dark, making many educational activities impossible, and negatively affecting students’ learning environments. • Businesses and industry can’t function without reliable electrical supplies, increasing unemployment and further destabilizing the Gaza economy.

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We don’t have to choose violence

In a follow-up to my post on September 6, Choosing Violence, I’m mailing letters to the President, and my members of Congress, with a copy of the article from the Boston Review.

(L to R – President Obama, Senator Tom Udall, Senator Martin Heinrich, Congresswoman Michelle Lujan-Grisham)

September 14, 2016

An Open Letter to President Obama, Senator Tom Udall, Senator Martin Heinrich and Congresswoman Michelle Lujan-Grisham:

We need to address someone who might actually listen, even if at present they cannot hear. They might be distant, but we must believe, if our conviction is to make sense to us, that there is a real chance they will receive our message. Conviction relies on a community, real or really possible, that subscribes to different standards than those of the majority.” — Oded Na’aman in Choosing Violence (Boston Review, August 15, 2016)

This letter is about choosing a different path.

I am writing because I believe each of you may hear my message. If you can’t hear it today, I’m convinced you will in the near future because each of you has shown intelligent compassion mixed with creative thinking in actions that you’ve taken in the past.  Those are the qualities we need today more than ever before.

I’m referring specifically to the tragedy in Israel-Palestine unfolding for all sides there, but my message is just as germane in every conflict the U.S. is engaged in abroad, as well as conflicts at home.

Oded Na’aman, a Postdoctoral Fellow at Stanford University, was a soldier in the Israeli Defense Forces in the early 2000s, and he’s written an insightful article entitled Choosing Violence which I’ve enclosed and encourage you to read.

The take-away message from Mr. Na’aman’s article is that violence and war are not tragedies that befall us but rather a choice we make. We choose war as a tool to respond to difficult challenges. I’m convinced we can make other choices using our compassionate intelligence and creative thinking.

The common wisdom in the United States, in Congress, and in the mainstream media, is that we must use violence to fight the terrorists. We must defend ourselves and our values with violence. We believe that our violence, as abhorrent as we may agree it is, is not by choice but by necessity.

I’ve wondered (especially after returning from my 9-month teaching sabbatical in Gaza three years ago) whether I’m a kook for believing that we can choose another path. In 2012-2013, while I was teaching young people about climate change in Gaza, I didn’t find the terrorists that my government warned me about before I traveled. I met with Hamas officials at their offices and in their homes, and I found humans struggling to lead under a long-term siege and occupation. I found humans making mistakes, as all leaders do, but trying to make life better for their people. Hamas’ tactics might be ill-advised, just as I would argue that many of Israel’s tactics are ill-advised, but I didn’t meet any terrorists.

Certainly each side argues why its use of violence is one of necessity and is justified. I’ve heard justifications ad nauseum from people in both Israel and Palestine. The truth, however, is that regardless of which side initiates the violence or defends itself against violence – both are trapped in a cycle of violence which must stop. Neither can get off the treadmill by himself. The United States must help.

Given our significant military aid to Israel, the U.S. has leverage to hold each side accountable for choosing a different path.  Why aren’t we using our leverage?

this-way-that-way-signpost

The MOU expected to be signed this week embodies our decision to choose violence once again by pledging to give Israel $38 billion in military aid over ten years. The agreement might speak about “security” but the weapons do not represent future security for Israel but rather prolong Israel’s illegal occupation and humiliation of Palestinians.

Israel’s “qualitative military edge” undermines the possibility of building a just and long-term peace with its neighbors. Instead, we should be helping Israel build a “qualitative peaceful edge.” Israel must remain strong militarily but even stronger as a role model for respecting human dignity and human rights. What path would the U.S. be forging if our financial aid to Israel was directed towards sustainable development projects for both Israel and Palestine?

There may be quiet, private reasons for Congress’s decision to add fuel to the fire in the Middle East. I understand the historical relationship between Israel and the United States; the powerful influence that AIPAC wields in Congress and in elections. I understand how the military aid package to Israel benefits our laboratories and jobs in the U.S., which translates into votes each election cycle. There is no justification, however, for the tremendous pain and destruction perpetrated by the violence we support.

We have a choice.  Violence doesn’t choose us, we choose violence.  

I may sound like a “deluded crank” to you, but I’m convinced beyond a shadow of a doubt that true justice and the moral high ground will prove me right, hopefully sooner rather than later.

I simply ask that you step on the right side of history.  Please choose a different path away from violence.

albert_einstein_quotes2

 

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Lawfare – Using Law as a Weapon of War

Professor Orde F. Kittrie (Professor of Law at Arizona State University) has made a strong contribution to the field of international law with his new book “Lawfare – Law as a Weapon of War” published by Oxford University Press (2016).  Order information available here.

Lawfare is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective.” — Maj. Gen. Charles J. Dunlap, Jr., USAF (ret.)

Everyone can agree that fighting our battles in the courtrooms, boardrooms, and national & state legislatures is far preferable than on the kinetic battlefield.

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The author asserts that the Israeli-Palestinian conflict is foreshadowing lawfare strategies and tactics that will soon be replicated in other conflicts.

As a relatively new legal strategy —(I don’t recall “lawfare” even being mentioned in my international law class 30 years ago)— and also because Israel and Palestine appear to be leading the way in developing lawfare strategies —(four of the nine chapters of this book are focused on the Israel/Palestine conflict)— this book caught and held my attention from cover to cover. I highly recommend the book to both lawyers and lay people interested in this new arena where the Israel-Palestine conflict is being fought. It should definitely be on the shelf of every law school library.

With that said, the book has a gaping hole. The author never explicitly asks “why are the two sides engaged in lawfare?”  Very subtly, the western U.S./Israeli narrative surfaces.

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Palestinian Bar Association – new offices in May 2013

I would never expect an academic book, such as this, to advocate for one side or the other, and Professor Kittrie very carefully presents these various lawfare strategies from both sides, Israel and Palestine. He also describes the strengths and weaknesses of each side. However, the context within which these lawfare strategies are deployed is a valid inquiry which he apparently has chosen to avoid.

Correction: Nearly avoid.  On page 275, the author lets slip that he believes Hamas is using lawfare to “promote the destruction of Israel.”  On another page, he writes about the “armies of terror” in reference to the Palestinians. He has adopted the “terrorists” lens through which the U.S. government and others from the West view the conflict. There’s no mention of Israel’s occupation of the West Bank and Gaza Strip; nor the economic, political and travel siege on Gaza which might provide the context in which Hamas, the PA and the Palestinian NGOs are waging a lawfare battle.

Our Western colonialist narrative of the Israel/Palestine conflict is so deeply ingrained in our psyche that most of us can’t step out of it, be apart from it, and actually acknowledge it. In all fairness, however, the author was an attorney in the U.S. Department of State for over a decade and so was likely steeped in the “terrorism” perspective of the Israel/Palestine conflict from his earlier career.

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Legal aid office in Gaza.

Would I have a bias, in reverse, if I wrote a book about lawfare strategies in the Israel/Palestine conflict? Yes, probably I would. Hopefully, my colleagues would gently point out my bias. Is it possible to step away from the conflict and write completely objectively? Maybe not, because we go in search of information that confirms our bias. Suspending our disbelief is hard to do.

However, in the study and practice of law, it’s doubly important that we challenge ourselves and each other about our blind spots. For what’s even more important than being right or wrong is the ability to learn to think like a lawyer.

Thinking like a lawyer is thinking like a human being, a human being who is tolerant, sophisticated, pragmatic, critical, and engaged. It means combining passion and principle, reason and judgment.   “On Thinking Like A Lawyer” Anne-Marie Slaughter,  Harvard Law Today, May, 2002.

So if I had the chance to sit with Professor Kittrie and talk about the gaping hole in his book, I would ask him to suspend his disbelief and consider the following questions:

  1. Does the offer of an extended ceasefire (hudna) as proposed by Hamas and the other Arab nations contradict your conclusion that Hamas wants to destroy Israel?
  2. Is there any evidence, aside from what the New York Times and the State of Israel report, that Hamas actually advises Palestinians to martyr themselves by staying in homes that Israel has threatened with demolition?  I lived in Gaza during Israel’s attack in November 2012, and never heard any such declarations by Hamas. Based on the members of Hamas that I know personally, I can’t fathom them asking anyone to risk their lives or the lives of their children. But I’ll suspend my disbelief if there’s any factual basis other than the New York Times or the State of Israel.
  3. If Hamas issued a five-minute warning to the people living in Siderot about their plans to launch a rocket, would that exonerate Hamas as the knock-knock attempts to exonerate the IDF?
  4. Is your comparison of Israel’s fight against Hamas with the U.S. fight against the Taliban and ISIS an accurate comparison?
  5. Your description of Hamas’ deployment of “compliance-leverage disparity lawfare on the kinetic battlefield” is based on your stated assumption that Israel is the more law-sensitive adversary of the two, but couldn’t the Palestinians make an argument in reverse that the State of Israel has little regard for international law?  Collective punishment, which is prohibited under international law, is ongoing. Noura Erakat’s law review article is another example.
  6. You write that there are many shades or interpretations of international humanitarian law, and that Israel is trying to build support for its interpretation of international law. Is it beyond the realm of imagination to factor in the occupation into the equation and consider how the battlefield (both lawfare and kinetic) would be changed if Israel ended the occupation of the Palestinian territories? That’s the elephant in the living room that warrants serious discussion by the politicians, as well as by the lawyers advising them.

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The book’s take-away message for me:  Governments and NGOs can use lawfare strategies both offensively and defensively to accomplish goals that might otherwise be played out tragically in the battlefield. So far, lawfare tactics used against Israel have been damaging but not disastrous, according to the author. Lawfare appears to hold the potential to become significantly more damaging. (p.279)

 

 

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