Tag Archives: lawfare

“Occupation” or “Colonization”?

Professor and historian Ilan Pappe is well-respected and condemned at the same time. He’s one of the new historians who has brought to light the ugly truth of the Zionists’ cleansing and colonization of Palestine.  His book, The Ethnic Cleansing of Palestine, is a must read for anyone who truly wants to learn about the history of Israel / Palestine.

Unfortunately, I must disagree with Professor Pappe’s current call to jettison the term “occupation” in favor of “colonization”.  Listen to his explanation here.

He’s absolutely correct …. an occupation should be considered a short-term, temporary state of affairs, and Israel’s 50-year occupation of Palestine has far-exceeded the limits of a lawful occupation.

But jettisoning the term “occupation” is not the answer. Under international law, the occupier has responsibilities and duties to those subjected to his occupation. Under international law, the victims of occupation have rights and claims against the occupier.

The State of Israel has been waging a stealth lawfare campaign for many years to convince the world that it is not occupying Palestine.

The answer is not to cave and agree with Israel that there is no occupation.

Instead, Professor Michael Lynk has the answer.  He’s the U.N. special rapporteur for the Palestinian territories.  Professor Lynk is urging the United Nations to examine Israel’s prolonged occupation to determine if it is an unlawful occupation.  This is the right strategy to pursue in my opinion.  I hope Professor Pappe and others concerned about Israel’s prolonged occupation will read Professor Lynk’s report, and join his effort.

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Special Rapporteur S. Michael Lynk

Professor Lynk recommends:

The Special Rapporteur recommends that the Government of Israel bring a complete end to the 50 years of occupation of the Palestinian territories in as expeditious a time period as possible, under international supervision.

The Special Rapporteur also recommends that the United Nations General Assembly:

  • Commission a United Nations study on the legality of Israel’s continued occupation of the Palestinian territory;
  • Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;
  • Consider commissioning a legal study on the ways and means that UN Member States can and must fulfill their obligations and duties to ensure respect for international law, including the duty of non-recognition, the duty to cooperate to bring to an end a wrongful situation and the duty to investigate and prosecute grave breaches of the Geneva Conventions.
  • Consider the adoption of a Uniting for Peace resolution with respect to the Question of Palestine, in the event that there is a determination that Israel’s role as occupier is no longer lawful.

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Israel and Annexation by Lawfare

by Michael Sfard — an Israeli human rights lawyer and the author of The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights (2018).

The following excerpts are from a longer commentary published in the New York Review of Books — April 10, 2018

I always thought that if Israel were to unilaterally annex the occupied Palestinian territories, it would come under an international spotlight, with denunciations and protests around the world. I was wrong. Annexation is underway, but out of the spotlight, away from international attention. In the dismal offices of the fortified Justice Ministry in East Jerusalem, in the cramped meeting rooms of the Knesset, and in the august chambers of the Supreme Court, Israel’s finest lawyers are working around the clock to shape the biggest paradigm shift since the West Bank was conquered in 1967. The government’s lawyers are busy giving their counsel, drafting laws, and defending Israel’s efforts to expand the jurisdiction of its law and administration beyond the 1949 ceasefire lines to serve the interests of Jewish settlers at the expense of the occupied Palestinians, whose civil rights are suspended. Knesset committees are drawing up legislation to expand and entrench the dual legal system that already exists in the West Bank: one code for settlers, another for Palestinians. These new laws are to be applied in a setting in which the colonized are dominated by the colonizers, with a clear intention of maintaining that domination. Even the Israeli judiciary is joined to the task, allowing the exploitation of Palestinian property for the benefit of Israeli settlers.

This epic transformation is taking place after close to fifty years of occupation. During that time, Israel made profound changes to both the landscape and the demography of the territory it conquered. Palestinians were subjected to a military government that denied them participation in the political process that shaped the rules applied to them and determined their future. Israel used the authoritarian powers that international law gives an occupying force to exploit the territory in a way never envisaged by the framers of those laws. It unilaterally annexed East Jerusalem, a move that was widely condemned abroad. The international community does not recognize the unified city as Israel’s capital; even Trump’s declaration on moving the US embassy to Jerusalem stops short of acknowledging the annexation of the city’s eastern parts.

…. 

The policies that evolved over decades—a creeping process of de facto annexation—stopped short of a wholesale application of Israel’s sovereignty over the Occupied Territories; the legal and political distinctions between the West Bank and Israel were preserved.

Now, this crucial legal-political status is being dismantled. The government is peeling away the last remnants of loyalty to the notion of the occupation as temporary and to any obligation to negotiate with the Palestinians. The goal is clear: a single state containing two peoples, only one of which has citizenship and civil rights.

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Justices in the Supreme Court, housed in a hilltop building that faces the Knesset, have set precedents of their own: last November, three judges ruled that the settlers constitute a “local population” in the West Bank, and that therefore, under certain conditions, private Palestinian land can be “temporarily” allocated to serve their needs. Their judgment overturned a principle, upheld for over forty years, that barred the use of private Palestinian land for settlement expansion. Within days of the ruling, the attorney general authorized the army to consider the expropriation of private land owned by Palestinian farmers to pave a settlement road.

Israel’s charade of adhering to the principles of international law is over. Every branch of government is contributing to this overhaul, with jurists taking the lead. In another set of buildings, some even shabbier than the dingy Ministry of Justice, a different group of lawyers, myself among them, wield the legal tools at our disposal with an opposite aim. We enlist the law to fight oppression and dispossession: in one case, we have challenged the confiscation law (also known as the Settlements Regularization law); in another, we have petitioned for a further hearing on the November ruling that allows (temporary) use of Palestinian lands for settlements. We have launched countless petitions, on behalf of our Palestinian clients, demanding that the settlers be evacuated from private land and the structures they have built be demolished. Our legal struggles, which often seem Sisyphean, take years first to liberate, then to restore access to, the occupied lands on which more than a hundred settlers outposts, such as Migron and Amona, have sprung up since the 1990s. We have invoked legal principles to win the lifting of restrictions placed on the movement of Palestinians, fighting to overturn orders that the army frequently issues to deny Palestinians access to their farm lands as an easy way to avoid friction with violent settlers. And we have demanded countless times that the court end its disgraceful failure to enforce the law against settlers: astonishingly, construction companies, settlers associations, and even heads of settler municipal councils, which are all involved in illegal construction on private Palestinian lands, have never been charged for their role in this huge collective crime. We are filing petitions to secure a remedy that sounds simple but is extremely difficult to get: to force the police to investigate these violations and the prosecutors to prosecute them.

Our petitions against the confiscation law, filed on behalf of some forty Palestinian local councils, sixteen Israeli human rights NGOs, and several individual land owners, will be heard in June before an unusual tribunal of nine justices (the Supreme Court usually sits in panels of three). It will be a significant test for the highest Israeli court, which over the years has approved many practices that strengthened Israel’s military and civilian presence in the Occupied Territories.

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Much could be said about the integrity of a jurisprudence that sustains such internal contradictions.

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The activist bench of the 1980s, 1990s, and 2000s, which saw a steady majority of justices who professed allegiance to liberal legal philosophy, became the number one target of the Israeli right. The generational turnover on the court’s bench gave successive Netanyahu-led governments the opportunity to liquidate its liberal wing. The new appointments of conservative, illiberal, and nationalistic judges, two of them settlers, changed the balance in favor of justices who emphasize nationalism rather than universal values.

….

The battle for the future of Israel’s dominion over millions of Palestinians and the colonization of their land is at a critical juncture. Will the current reality of repression and discrimination through “temporary” control of one nation over another be reinforced and institutionalized by official annexation into one permanent state?

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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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Lawfare and Armed Conflict: Comparing Israeli and US Targeted Killing Policies and Challenges against Them

Lawfare and Armed Conflict: Comparing Israeli and US Targeted Killing Policies and Challenges against Them.

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