Tag Archives: international humanitarian law

Stop talking about the “border”

We have a right to defend ourselves” just as any other sovereign nation, proclaims Israel’s leaders as they give the order to use lethal force against peaceful protesters on the other side of the fence with Gaza.

Whether Israel is correct depends on two things:

(1) Does international human rights law apply to these facts or international humanitarian law (rules of war)? The question has been presented to Israel’s High Court of Justice.

Michael Lynk, the special rapporteur on human rights in the occupied Palestinian territory, said the killings on Monday reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.”

Mr. Lynk said that protesters appeared to pose no credible threat to Israeli military forces on the Israeli side. Under humanitarian law, he said, the killing of unarmed demonstrators could amount to a war crime, and he added that “impunity for these actions is not an option.”

(2) Is the fence between Gaza and Israel an international border or a fence separating two groups of people who each claim sovereignty over their territory?

You would be excused if you erroneously thought the fence was an international border because much of the mainstream media has adopted Israel’s framing of the issue.  Israel wants us to believe it has a border with Gaza; that since its withdrawal in 2005 the Gaza Strip is no longer occupied territory; and the fence represents an inviolable demarcation between Israel and “those people we prefer to call Arabs, not Palestinians.”

If Israel’s argument was correct, then the right to defend that border might have some merit, leaving aside the important issues of “Right of Return” and method of defense.

However, we succumb to Israel’s narrative at the expense of jettisoning the law of belligerent occupation, international humanitarian law and the facts that led to the establishment of Israel 70 years ago.

israel_palestine_conflict

The current borders of the State of Israel are a result of war and of diplomatic agreements. The borders with Jordan and Egypt have been confirmed by peace treaties. The border with Lebanon resulted from the 1949 Armistice Agreement.  The borders with Syria and the Palestinians in the West Bank and Gaza have never been settled. In fact, Israeli Legislators have been passing laws to unilaterally extend Israel’s sovereignty into the West Bank, and they claim they no longer occupy the Gaza Strip. The U.N. and the international community have not recognized Israel’s unilateral pronouncements.

It’s time the mainstream media got the facts straight. Words matter.

Since the State of Israel does not have an internationally recognized border with the Palestinians in Gaza, the actions of both the Israeli military and the Palestinian protesters take on a significantly different cast.

The Palestinians are not trying to cross an inviolable border but rather exercising their Right of Return enshrined in Resolution 194 adopted by the United Nations on December 11, 1948.

The Israeli military is not protecting its sovereign border but rather killing unarmed protesters that have been caged in the world’s largest open air prison.

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The State of Israel may have superior military weapons, thanks in large measure to American taxpayers, but we should not capitulate to Israel’s false narrative.

There is no internationally recognized border between Israel and Gaza. It’s just a fence; actually two fences.  The New York Times is beginning to set the record straight. (May 16, 2018)

 

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Filed under Gaza, Israel, Israel Defense Forces, Media, People, Uncategorized, United Nations

Prolonged Occupation or Illegal Occupant?

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Michael Lynk’s commentary was first published on May 16, 2018 on EJIL: Talk! …. the Blog of the European Journal of International Law.  He raises a novel argument — that the international legal community should consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal line, resulting in an illegal occupation. Professor Lynk posits a 4-part test to determine the answer. His commentary is reprinted below in full.*

Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. He teaches labour law, human rights law and constitutional law. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967

“An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. BenvenistiO. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation(2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United NationsB’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalemand Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.”

*     I didn’t ask permission to republish this commentary, preferring to ask forgiveness later if I’ve overstepped.  The original commentary can be accessed here.

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Filed under Israel, Occupation, People, Uncategorized, United Nations

Israel has crossed the red line – no longer the lawful occupant of the Palestinian Territories

When is enough, enough under international law?

michael_lynk

Special Rapporteur S. Michael Lynk

That’s the question that the UN rapporteur for human rights in the occupied territories, S. Michael Lynk, asked and answered in his report to the U.N. General Assembly in October 2017.

Lynk is a Canadian professor of law and human rights expert. His words should carry some umpf! in the international community, if not with Israeli officials who have persistently refused to accept more than 40 UN resolutions over the past half century pertaining to the occupied territories.

To summarize this 22 page report, which should be required reading for everyone interested in the future of Israel and Palestine, Professor Lynk is opening a new (legal) chapter in Israel’s occupation of East Jerusalem, the West Bank, and the Gaza Strip.

He is making the case for recognizing Israel as an illegal occupier, and calling on the international community to use all of the tools in its toolbox to end this illegal occupation.

Israel denies that it’s occupying Palestine, despite the contrary opinion of the rest of the world. (Israeli deputy foreign minister denies Palestinians live under occupation: ‘This is Judea and Samaria’)

Loss of Land

“The Israeli occupation has become a legal and humanitarian oxymoron: an occupation without end,” Professor Lynk writes. It is the longest-running military occupation in the modern world.

The inability to end the Israeli occupation has been an abject failure of international diplomacy, a darkening stain on the efficacy of international law and the source of multiple broken promises to the Palestinian people. Nor does the prolongation of this occupation serve the people of Israel, for it corrodes their society and their public institutions by entangling them in their government’s drive to foreclose a viable and just solution to the half-century of occupation and the century-long conflict, and makes them the benefactors — unwittingly or not — of a profoundly unequal and unjust relationship.

How should we characterize this occupation in 2017? Professor Lynk proposes that Israel is no longer the lawful occupant of the Palestinian territory, but has now crossed a red line and has become the unlawful occupier. His argument goes like this:

  1. “Two decades into the 21st century, the norm that guides our global community is that people are citizens, not subjects, of the state that rules them. … Colonialism, occupation and other forms of alien rule are very much the exception to this norm.”
  2. The right of self-determination, and economic, social and cultural rights — are to be interpreted broadly, while the exceptions to these fundamental rights — such as military necessity, significant threats to national security or public emergencies — are to be interpreted narrowly.
  3. Three core purposes of modern international humanitarian law related to foreign military occupation are: (a) closely regulate the occupation to ensure that the territory achieves, or is restored to, a state of sovereignty, (b) prevent the territory from becoming a fruit of conquest, and (c) safeguard the protected people under occupation.
  4. The International Court of Justice has affirmed that international human rights law continues to apply in times of conflict and throughout an occupation.
  5. The right to self-determination is a right that applies to everyone living under occupation, and the court has specifically recognized the right of the Palestinians to self-determination.
  6. Israel has occupied the Palestinian territory – the West Bank, including East Jerusalem and Gaza – since June 1967, and therefore the Fourth Geneva Convention applies in full. 
  7. Palestinians are “protected persons” under international humanitarian law and are entitled to the protections of the Fourth Geneva Convention. The international community has widely rejected Israel’s assertions that the Fourth Geneva Convention does not apply.

So what should the international community do?

Professor Lynk proposes that the U.N. General Assembly seek an advisory opinion from the International Court of Justice on the question of the legality of the occupation.

ICJ

International Court of Justice

Courts and lawyers favor tradition and precedent (stare decisis), and Professor Lynk finds ample precedent in the ICJ’s 1971 Namibia opinion, where the court decided that South Africa’s continued presence in the territory of Namibia was illegal.  (On a side note, I’ve just completed a couple of online courses in International Humanitarian Law and International Human Rights Law, and really appreciate how Professor Lynk’s report connects all of the dots that I’ve just learned.)

Application of the Legality Test to Israel’s Occupation

The ICJ should consider four elements, Professor Lynk writes, to determine if Israel is now an illegal occupying force.

  1. The prohibition against annexation: Israeli officials have made their intentions crystal clear. There are now 210,000 Israeli settlers living in occupied East Jerusalem, and another 400,000 settlers live in approximately 225 settlements in the occupied West Bank. Israel has been establishing its “facts on the ground” for a de facto annexation of the occupied lands that belong to the Palestinian people under international law. “The settlers live under Israeli law in Israeli-only settlements, drive on an Israeli-only road system, and benefit greatly from the enormous sums of public money spent by Israel on entrenching and expanding the settlements. … What country would invest so heavily over so many years to establish many immutable facts on the ground in an occupied territory if it did not intend to remain permanently?”
  2. Occupations must be temporary, and not indefinite or permanent. “Modern occupations that have broadly adhered to the strict principles concerning temporariness, non-annexation, trusteeship and good faith have not exceed 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led coalition’s occupation of Iraq.” Israel’s occupation is 50 years old. “The only credible explanation for Israel’s continuation of the occupation and its thickening of the settlement regime is to enshrine its sovereign claim over part or all of the Palestinian territory, a colonial ambition par excellence.”
  3. The Best Interest/Trust Principle. “Under international law, Israel is required to administer the occupied Palestinian territory in the best interests of the Palestinian people, but the social and economic impact of the occupation on the Palestinians in the occupied territory, which had always been disadvantageous, has become increasingly dire in recent years.” Professor Lynk’s report spells out in no uncertain terms how Israel has taken advantage of the natural resources, and ruled the Palestinian Territory as an internal colony, to create a “strangled economy, mounting impoverishmet, daily impositions and indignities, and receding hope for a reversal of fortune in the foreseeable future.”
  4. Good Faith. Professor Lynk says that Israel has not been acting in good faith because it hasn’t complied with the 3 elements above, and it hasn’t complied with specific directions issued by the United Nations pertaining to the occupation. The enumeration of Israel’s noncompliance with international law is damning and shocking when it’s all spelled out in one place. Israel (and it’s best friend the United States Congress) might argue that the United Nations is bias against Israel, but what Israel really means is that the community of nations has not accepted Israel’s blatant attempt to unilaterally rewrite international law to suit its own self-interest.
checkpoint

Israeli checkpoint for Palestinians posted by Husam Jubran on Facebook Nov. 2, 2017

Professor Lynk’s concluding observation is an alarm bell that every lawyer should take seriously, regardless of personal opinions about Israel / Palestine and the occupation.

International law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace and justice will be pursued. It is a tribute to the international community that it has sustained this vision of international law throughout its supervision of Israel’s occupation of the Palestinian territory.

But it is no tribute that — as the occupation deepened, as the occupier’s intentions became crystal clear, and as its defiance grew — the international community recoiled from answering Israel’s splintering of the Palestinian territory and disfiguring of the laws of occupation with the robust tools that international law and diplomacy provide. International law, along with the peoples of Palestine and Israel, have all suffered in the process.

The challenge now facing the international community … is to devise and employ the appropriate diplomatic and legal steps that, measure by measure, would completely and fully end the occupation.

 

 

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Accountability for war crimes? ICC

When and how will Israel be held accountable for war crimes committed during its 51-day Operation Protective Edge in 2014?  The operation killed 2,251 Palestinians, the vast majority of whom were civilians, including 299 women and 551 children. The operation also caused massive destruction to 18,000 homes and other civilian property, including hospitals and vital infrastructure.

Most of the destruction and damage has not been repaired in the past three years. Neither has any serious investigation been conducted.

Two legal NGOs in Israel — Al Mezan Center for Human Rights and Adalah — have been absolute bull dogs, pushing the Israeli authorities to comply with their responsibilities under International Humanitarian Law (IHL) and International Human Rights Law (IHRL). For the past three years, they have submitted petitions, complaints, claims and every manner of documentation to press for justice for the victims of Operation Protective Edge. To no avail.

IHL and IHRL require Israel to investigate allegations of suspected violations committed during Operation Protective Edge, with independence, impartiality, effectiveness, promptness and transparency and to prosecute those allegedly responsible.

But as with its inquiries into past military operations, Israel has delayed, denied, deflected and dismissed every attempt by the United Nations and others to come clean with its actions in Operation Protective Edge.

That hasn’t stopped Israeli soldiers from talking about their experience in Operation Protective Edge.

On August 28, 2017, Al-Mezan and Adalah published their 9-page report documenting their attempts to hold Israel accountable — Gaza 3 Years On: Impunity over accountability Israel’s unwillingness to investigate violations of international law
in the Gaza Strip. No surprises here.

The cases concerned severe events that resulted in the killing and serious injury of Palestinian civilians, including women and children, and the massive destruction of civilian objects. The evidence in these cases suggested that the attacks were carried out in violation of the principles of distinction and proportionality, which could amount to grave breaches of IHL. These cases mostly concerned incidents of:
 Direct attacks on homes causing many civilian deaths and injuries;
 Direct attacks on children (e.g. the four Bakr children playing on the beach and the Shuheibar children feeding pigeons on a house rooftop);
 Direct attacks on five UNRWA schools that were sheltering civilians;
 The bombing of mosques, hospitals and a shelter for people with severe disabilities;
 Attacks on civilian infrastructure and the municipality workers fixing them.

After Operation Protective Edge, Israel cynically created the Fact-Finding Assessment Mechanism (FFAM) to improve its investigative abilities but after three years, 46.4% of the complaints filed by Adalah and Al Mezan were referred to the FFAM for examination and then closed, without opening a criminal investigation or ordering further action against those involved. 43% of the complaints remain under examination by the FFAM or received no response.

The Military Advocate General’s responses to such cases:
 Secret evidence: The materials collected by the FFAM and other intelligence materials cannot be revealed because they are classified;
 Military necessity: Certain incidents in question were undertaken based on military necessity (these arguments were written vaguely and did not include any supporting evidence);
 No non-military witnesses: The FFAM did not find any need or use in taking testimonies from non-military witnesses.

This whole exercise may seem pointless because when has Israel ever been held accountable for its violations of international law?

This time things might be different.

Ms Fatou Bensouda

Ms Fatou Bensouda – Prosecutor

The Office of the Prosecutor for the International Criminal Court (ICC) has launched a preliminary investigation. (pp. 25-32) But the ICC can’t assume jurisdiction in this case if the State of Israel has an effective mechanism for investigating and prosecuting these claims. In November 2016, the Prosecutor said she would “assess information on potentially relevant national proceedings, as necessary and appropriate.”

That’s why this report from Al-Mezan and Adalah is so very important. It clearly shows that Israel is incapable and unwilling to investigate and hold itself accountable. If the Prosecutor agrees, she can recommend that the ICC take the case.

Israel needs to be held accountable, sooner rather than later. This report provides the ammunition to open the courthouse doors. Bravo Al-Mezan and Adalah!

The case of the Abu Dahrouj family provides another illustration of Israel’s unwillingness to investigate. On the night of 22 August 2014, an Israeli warplane fired two missiles at a home belonging to the Abu Dahrouj family in central Gaza. The Israeli missile strike killed five members of the Abu Dahrouj family, including two children, and wounded multiple civilians and caused extensive damage to neighboring homes. Although [Israel] acknowledged that the missile attack was carried out directly on a civilian home and did not target any combatant or military object, no investigation was opened and the case was closed without any action against those involved.

 

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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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“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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The Israeli Occupation Comes to the UN Security Council

Hagai El-Ad’s address in a special discussion about settlements at the United Nations Security Council on October 14, 2016

(The following transcript and short videos are located on the Btselem website.

Members of the Security Council,

Ladies and Gentlemen,

Before I begin, I would like to express my deep thanks for this unique opportunity of speaking at this distinguished forum and engaging with the members of the UN Security Council.

What I’m about to say is not meant to shock you. It is, however, meant to move you.

For the past 49 years – and counting – the injustice known as the occupation of Palestine, and Israeli control of Palestinian lives in Gaza, the West Bank, and East Jerusalem, has become part of the international order. The first half-century of this reality will soon be over. On behalf of B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, I implore you today to take action. Anything short of decisive international action will achieve nothing but ushering in the second half of the first century of the occupation.

Ladies and Gentlemen,

What does it mean, in practical terms, to spend 49 years, a lifetime, under military rule? When violence breaks out, or when particular incidents attract global attention, you get a glimpse into certain aspects of life under occupation. But what about the rest of the time? What about the many “ordinary” days of a 17,898-day-long occupation, which is still going strong? Living under military rule mostly means invisible, bureaucratic, daily, violence. It means living under an endless permit regime, which controls Palestinian life from cradle to grave: Israel controls the population registry; Israel controls work permits; Israel controls who can travel abroad – and who cannot; Israel controls who can visit from abroad – and who cannot; in some villages, Israel maintains lists of who can visit the village, or who is allowed to farm which fields. Permits can sometimes be denied; permits must always be renewed. Thus with every breath they take, Palestinians breathe in occupation. Make a wrong move, and you can lose your freedom of movement, your livelihood, or even the opportunity to marry and build a family with your beloved.

Meanwhile, ever present, are the settlements and the settlers. They are Israeli citizens living, ostensibly, in a first-world democracy, that somehow exists only for them, beyond the borders of their country. This ever-expanding venture, its illegality notwithstanding, is to be found everywhere throughout the West Bank and East Jerusalem. Settlements encompass the built-up areas as well as the generous allocations of land around them, meant for future expansion or “special security zones”; they mean checkpoints for Palestinians, and bypass roads for settlers; they mean the Separation Barrier; and finally, they mean the fragmentation of Palestine into hundreds of isolated communities, floating – or rather I should say, slowly sinking – in a sea of Israeli domination. Who could possibly deserve to endure such conditions for half a century?

Ladies and Gentlemen,

Almost all aspects of this reality are considered legal by Israel. Israel’s control of Palestinian lives is unique in the careful attention the occupying power gives to the letter of the law, while strangling its very spirit. The occupation has so perfected the art of watering down International Humanitarian Law and Human Rights Law as to render them virtually meaningless. Once military lawyers, State Attorneys and Supreme Court justices are done masterfully chiseling out legal opinions, all that remains is raw injustice.

Show me a dead Palestinian whose killing must be explained away to ensure impunity, and there you will find a learned opinion by the Military Advocate General. Show me the 100,000 Palestinians ignored and neglected on the other side of the Separation Barrier built inside East Jerusalem, and I will remind you that even this glaring injustice has been pre-approved by Israel’s High Court of Justice.

Show me a plot of Palestinian land you wish taken over, and the Civil Administration will come up with the appropriately tailored legal mechanism – of course, it must all be legal! – to achieve that end: military training zones, nature reserves, archeological sites and, above all, declaring thousands of acres “State Land” – what “State” exactly? All these are successfully used in order to forcibly displace Palestinians and justify denying them access to running water or the power grid. Of course, such Israeli actions aren’t successful 100% of the time. That would be too transparent. So once in a long while, maybe once a decade, a low-ranking soldier might be put on a show trial; and once in a blue moon a master plan for a Palestinian village will be approved. These extraordinary cherry-picked rarities provide useful distractions from the big picture.

In order to uphold the guise of legality, Israel applies “due process” in just about everything: to potentially force-feed hunger strikers, as recently approved by the High Court; to routinely approve and renew administrative detention orders, or extend prolonged imprisonment without trial, of hundreds of Palestinians; to demolish the homes of the families of Palestinians who perpetrated attacks – yes, that too has happened hundreds of times, with due process and a seal of approval by the High Court. Since the year 2000, more than 4,400 Palestinians have lost their homes in this way.

Yes, Israel has professional lawyers, attorneys and judges. It is, indeed, a highly “professional” occupation. We have had plenty of time to work towards a more perfect occupation. But you don’t need to be a lawyer in order to recognize injustice. Look at the occupation and all the legal pretense surrounding it, and call it for what it is: a legal guise for organized state violence.

Ladies and Gentlemen,

Israel has systematically legalized human rights violations in the occupied territories through the establishment of permanent settlements, punitive home demolitions, a biased building and planning mechanism, taking over Palestinian land and much, much more. Israel’s military law enforcement system – if one can call it that – routinely whitewashes hundreds of cases in which Palestinians were killed or abused.

Here are some figures: Israel has declared 20% of the West Bank “State Land”; Israel “generously” allows Palestinians to build on one-half of one percent of Area C, the 60% of the West Bank placed “temporarily” under Israeli control a generation ago; over the past decade, Israel has demolished some 1,200 Palestinian homes in the West Bank, excluding East Jerusalem, thereby rendering homeless over 5,500 people, half of them minors; East Jerusalem figures would raise these by roughly another 50%; in April 2016 there were about 7,000 Palestinians in Israeli custody, a quarter of them individuals remanded for the duration of their military court proceedings, and roughly 10% administrative detainees. One final figures: in a quarter of the 740 plus complaints referred by B’Tselem to the military authorities since 2000, no investigation was even opened; in another half, the cases were eventually closed with no action taken; and only in 25 cases, were indictments served. And get this: during that time, the military authorities have physically lost track of 44 cases – more than the 25 cases that went to court. Israel insists that all of this is legal, under both Israeli law and international law.

It is not.

But this fact is of little practical significance in terms of keeping Israel from carrying on implementing its policies because, regrettably, international law lacks any effective enforcement mechanisms. And so, Israeli policies are implemented and advanced with ever greater domestic support. Despite broad international agreement – including previous Security Council resolutions – that the settlements are illegal, the only measurable change in this area is the growing number of settlements, of settlers, and of Palestinians living in their shadow, facing demolitions or displacement.

Ladies and Gentlemen,

B’Tselem has worked for 27 years to document and publish violations of human rights in the occupied territories, to analyze and interpret data, and advocate locally and internationally on these issues. We are not advocating for any specific political outcome: we are fighting human rights violations. In fact, we realize how Israel has effectively used the “peace process” itself to buy time – a great deal of time – while it further establishes more facts on Palestinian ground. B’Tselem’s mission to tell the Israeli public about the ways in which the state oppresses Palestinians will continue as long as the occupation does. We were and will always remain relentless in this effort, for it is our basic moral obligation. But after so many years, one has to draw certain conclusions. Moral principles alone will not be enough. Israel will not cease being an oppressor simply by waking up one day and realizing the brutality of its policies. Decades of false pretexts and genuine fears, economic interests and political dogma, have come together to prevent that eventuality, while too few convincing reasons to change course were presented. And globally?

Six-and-a-half years ago US Vice President Joe Biden warned that “the status quo is not sustainable”. Clearly he was at least six-and-a-half years too early in voicing such a warning. The “status quo” – that ever progressing vector of Israeli interests at the expense of Palestinian rights – has proven not merely sustainable, but in fact thriving.

Almost exactly a year ago the European Union embarked on a six-month “structured dialogue” with Israel, seeking to end administrative home demolitions in Area C. Six months later, the dialogue was going nowhere and demolitions were on the rise, yet the EU decided – to extend the dialogue. If an unprecedented number of demolitions goes hand-in-hand with an unlimited timetable for international dialogue, why stop demolitions?

Clearly, the occupation is internationally sustainable. It is so, because so far the world refuses to take effective action.

Recent years have made that realization even more painful. Israel’s long-term project to maximize its benefits from Palestinian land while minimizing the nuisance of Palestinian presence there has become even more palpable than perhaps ever before. Admittedly, even just half a day spent in the West Bank has long been more than enough to realize the permanence sought for the enterprise that Israeli governments right, center, and left have been advancing there since 1967. Similarly, retired Israeli officials have openly said so – most recently it was put quite simply by a former OC Central Command who said: “The army is there because the State of Israel has no intention of leaving.” But now that Israeli leaders currently in office, from the Prime Minister down, have been skipping the lip-service in real time and openly admitting this – with such a level of official clarity – it seemed that surely, finally, there would be implications. Was one naïve to have that expectation?

Perhaps. While unprecedented clarity in Israeli language has narrowed the divide between Israeli actions and the empty rhetoric on negotiations and diplomacy, the global response to it was, well, yet another report. Demolitions have been stepped up, making 2016 the worst year on record in this sphere. I feel compelled to ask: how many more Palestinian homes must be bulldozed before the realization sinks in that words that are not backed up by action do no more than indicate to Israel that it may carry on?

Ladies and Gentlemen,

The realization of human rights need not wait any longer. Palestinians have the right to life and dignity, the right to determine their own future. These have all been delayed for far too long – and justice delayed is justice denied.

As Martin Luther King Jr taught us, “we know through painful experience that freedom is never voluntarily given by the oppressor”. So the reality facing the international community is this: absence of action not only effectively gives the oppressor a license to proceed without having to suffer too many repercussions, but also gives the oppressor the power to decide when will be the right time to start considering alternatives. “Wait,” demands Israel, “now is not the right time”. But “‘Wait’ has almost always meant ‘Never’,” responds Martin Luther King Jr. “The time is always right to do what is right.” That time is now: the time to, at long last, take action. The UN Security Council has more than just power: you have a moral responsibility – and a real opportunity – to act with a sense of urgency, before we reach the symbolic date of June 2017 and the second half of that first century begins, to send to the world, to Israelis and to Palestinians, a clear message, backed by international action: Israel cannot have it both ways. You cannot occupy a people for fifty years and call yourself a democracy. You cannot violate the rights of millions and claim international perks justified by hollow words about commitment to shared human rights values.

Israel is a sovereign country established through international legitimacy granted through a historic decision by this very institution in 1947. I am a citizen of that country. It is my homeland. For most of my country’s existence, the world has allowed it to occupy another people. I have lived my entire life, every single day of it, with that reality. Millions of Israelis and Palestinians know no other reality. We need your help. Fifty years of “temporary” occupation are too long for even a single person on this planet to accept such a contradiction in terms. The rights of Palestinians must be realized; the occupation must end; the UN Security Council must act; and the time is now.

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