Tag Archives: Noura Erakat

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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Filed under Book Review, Gaza, Hamas, Israel, Occupation, People, Uncategorized

“Why can’t the Palestinian leaders build a state like the Zionists did after the Holocaust?”

“Why aren’t the Palestinian leaders building a country like my parents, survivors of the Holocaust and millions like them, did with Israel, instead of building tunnels, shooting missiles and subjecting their people to untold horrors?”

I gasped when I read this question sent to me by a well-educated, university professor in Israel. It was a serious question, deserving a serious response.

Where to begin?

To dissuade my friend of any notion that Palestinians might be incapable of building a country, I’ll remind him of the cities, industry, agriculture, schools and civic life that flourished in Palestine before my friend’s parents and other Zionists arrived. Please watch this 10 minute video.

When I returned from Gaza two years ago, I wrote my layman’s version of the history of Palestine here and here. Israel’s 67 years of dispossession, ethnic cleansing, and occupation of Palestine — as well as current events, including the Palestinian resistance and Israel’s successive military operations in the West Bank and Gaza — can only be understood in the context of the Nakba. I believe my Israeli friend’s question is sincere because either he doesn’t know about the Nakba (past and present) نكبة or he has decided to ignore and minimize the ongoing impacts of the Nakba.

I credit Ilan Pappe and Noam Chomsky for opening my eyes about the Nakba.

In the late 1980s, a group of Israeli historians, including Ilan Pappe and Benny Morris, began to challenge the commonly accepted version of Israeli history based on newly declassified Israeli government documents. Morris called them the New Historians. They went head-to-head with the traditional historians who cast Israel as the peace-seeking victim in a hostile Arab world, the David-and-Goliath narrative. The New Historians shared a more nuanced history of the exodus of the Palestinians and the reasons for the persistent political deadlock with the Arab states in the region.

Professor Ilan Pappe’s book “Ethnic Cleansing” was my education about the Nakba. I hope my friend will read it. In this video, Pappe describes in great detail about the Zionists who committed the Nakba crimes. He urges us to know the names of the perpetrators, the victims, the places and events of the Nakba. Pappe also speaks about the “conspiracy of silence” by the international community in 1948. Please watch.

So . . . . . why can’t the Palestinian leaders do what the Zionists have done (are still doing) in creating the State of Israel?

  • If my friend’s parents and other Zionists had decided to live peacefully side-by-side with the indigenous population when they arrived in Palestine, as Jews, Christians and Muslims had lived for many years, we would certainly be watching very different events unfold in the Middle East today.  The footage in this short clip shows a time when Palestinians of all faiths lived and worked side by side in harmony.
  • If the Zionists believed in a democracy that values plurality rather than an apartheid regime that values Jews over non-Jews, we would certainly be watching very different events unfold in the Middle East today. Saree Makdisi explains apartheid very well here and in his book “Palestine Inside Out: An Everyday Occupation.”

“Apartheid” isn’t just a term of insult; it’s a word with a very specific legal meaning, as defined by the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the U.N. General Assembly in 1973 and ratified by most United Nations member states (Israel and the United States are exceptions, to their shame).

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  • If Israel had not waged three military campaigns in Gaza over the past six years, Operation Cast Lead (2008-2009), Operation Pillar of Defense (2012) which I witnessed first hand from the ground in Gaza, and the most recent Operation Protective Edge (2014), and if Israel lifted the multi-year siege and blockade of Gaza, and if Israel allowed Palestinians in Gaza to travel freely to pursue educational opportunities, visit family, accept jobs, seek medical attention, etc., — if none of these inhumane actions had occurred and were still occurring — we certainly would be witnessing a vibrant economy in Gaza with the next generation of Palestinians living in hope, not despair. Instead, the U.N. is predicting that Gaza will be uninhabitable by 2020. Some of my blog posts from Operation Pillar of Defense are here, here and here.

I can hear your retort now, my friend.  It sounds something like this.  (I hope you are not offended, but I’ve heard the same words spoken seriously by many, many Jews.)

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So long as the Zionists maintain the brutal occupation and dehumanization of the Palestinians, as they have for decades, resistance will continue.  Resistance in the form of political resistance at the United Nations, resistance at the International Criminal Court, cultural resistance such as teaching the next generation the Palestinian traditions, economic resistance, non-violent resistance in Budrus, resistance with the pen, and violent resistance.

I’ll conclude with Noura Erakat’s well-reasoned explanation of why Israel’s occupation is illegal. As an attorney yourself, I hope you will give Ms. Erakat the time and respect she deserves by reading her paper.

I appreciate your question which initiated this blog post, and I hope we will continue this discussion. Even more, I hope the occupation and dispossession of Palestinians from their land, which your parents and other Zionists started so many years ago, will come to an end very soon.

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Filed under Gaza, Hamas, IDF, Israel, Israel Defense Forces, Nakba, nonviolent resistance, Occupation, Peaceful, People, Politics, Settlers, United Nations, US Policy, Video

Jus in Bello and Jus ad Bellum – The Laws of War

It’s Not Wrong, It’s Illegal: Situating the Gaza Blockade Between International Law and the UN Response – Noura Erakat

11 UCLA J. Islamic & Near E. L. 37 (available online for free download).

Living in Gaza for 8 months and sitting helplessly while Israeli bombs were falling all around us for 8 days in November 2012, I had a unique opportunity to experience “war” close-up and personal in a way that most Americans will never understand.

The experience stunned me and filled me with questions.

How could anyone call this a “war”?  It certainly was not a war of equals.  Has the definition of “war” been so obscured (war on drugs, war on terrorism) that any act of aggression might constitute an act of war?

Listening to President Obama on the radio say that “Israel has a right to defend herself” made me yell “Don’t the Palestinians in Gaza have the right of self-defense too?”

Why wasn’t anyone talking about the OCCUPATION when they reported about Hamas and others firing rockets into Israel, the growing death toll in Gaza, and the ceasefire negotiated with the help of Egypt’s new President Morsi?  All of the news reports from the West that I saw online conveniently omitted the OCCUPATION. Why?

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It seemed like I was living in an alternate universe while I was in Gaza, and I was very confused.  Now, however, Noura Erakat’s law review article has cleared up a lot of my confusion.  Thank goodness, there’s no alternate universe, just an impotent United Nations and a deliberate, ongoing campaign by Israel and the United States to blur the distinction between jus ad bellum and jus in bello.

War is governed by two different branches of international law.  As an attorney, you would think I should have known this, but I didn’t.  So it’s reasonable to assume that most journalists don’t know it either, but Obama and Netanyahu should.

Jus ad bellum is the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, which declares in Article 2: “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; and in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”

Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq’s aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities.

The easy way to remember the difference between the two is to remember that jus ad bellum refers to the laws governing when a state may START a war, and jus in bello refers to the laws governing how a state must CONDUCT the war.

Erakat says that  Israel is trying deliberately to change the law, blurring the distinction between the two and challenging the existing legal order: (a) by changing what is the permissible use of force that is allowed during an occupation, and (b) by changing the legal definition of “self-defense”.

My confusion has cleared considerably after reading Erakat’s article.  I encourage everyone (lawyers and non-lawyers alike) to read it, available here.

Much of her argument hinges on whether Israel occupies the Gaza Strip.  Israel says it evacuated the Gaza Strip in 2005 when it removed its settlements and soldiers, but Erakat notes that Israel maintains “effective control” over Gaza’s air space, seaports, telecommunications networks, electromagnetic sphere, tax revenue distribution, and population registry.  Israel maintains control over movement across 5 border crossings, and I will add that Egypt appears to be doing Israel’s bidding as far as controlling the Rafah border crossing.

Israel has also made the argument that there is no OCCUPATION in the West Bank because there was no State of Palestine in 1948 when it seized the land. Instead, Israel says it’s merely “administering the territories” despite the fact that the UN Security Council, the International Court of Justice, the UN General Assembly and the Israeli Supreme Court all reject that argument.

If there is no OCCUPATION, then Israel has no legal obligation as an occupying power under the Fourth Geneva Convention, but if there is an OCCUPATION, her responsibilities to the Palestinians are greater and she cannot invoke the right to self-defense in the same way.  The permissible use of force and the right to self-defense are treated differently under jus in bello and jus ad bellum. 

Under jus in bello, the permissible use of force is expansive. The principles of distinction and proportionality apply but Israel can probably use greater firepower than would be allowed under OCCUPATION, where the permissible use of force is limited to law enforcement and policing. That is why it’s very important to understand the distinction between the two and why Israel is working so hard to control the messaging about the OCCUPATION.

Israel is trying to avoid the constraints of international humanitarian law when it invokes “self defense.”  The right of self defense, Noura Erakat writes, has been under debate since the US attacked Iraq in the early 1990s. Should the legal definition be subject to the broad framework of customary international law? Or considered within the narrow constraints of the UN Charter? Can self-defense be invoked against non-state actors?

Israel cites two UN Security Council Resolutions adopted in 2001 following the 9/11 attacks (Res. 1368 and Res. 1373) which give states the right to defend against terrorist attacks.  Israel frames all acts of Palestinian violence as terrorism triggering these resolutions.  It appears Obama has adopted that same strategy, but Erakat makes a good argument that these resolutions do not apply to the Israeli-Palestinian situation.

Israel has rendered Gaza into a legal black hole where the only applicable law is its own.

Security Council Considers Middle East Situation, Including Palestinian Question, May 22, 2013

Security Council Considers Middle East Situation, Including Palestinian Question, May 22, 2013

Noura Erakat has some strong words about the U.N. Security Council’s failure to uphold the rule of law, in the way it has handled Israel’s actions vis a vis Palestinians.

The blockade on Gaza imposed in June 2007 and ongoing to this day, Operation Cast Lead (2008-2009), the assault against the Mavi Marmara in international waters in 2010, and the most recent assault last November which I witnessed in Gaza, are examples of the Security Council’s failure to hold Israel accountable under international law, failed to explicitly condemn the illegal blockade, and politicized international humanitarian law.

The United States has been complicit in this failure. Between 1972-1997, the US used its veto power on the UN Security Council 32 times to shield Israel from rebuke, nearly 1/2 of its vetoes since the founding of the United Nations.  (That fact alone bolsters my belief that nothing will change in Israel and Palestine until Americans change our government’s subservience to Israel. We must educate our Congress and President.)

Noura Erakat ends her law review article with some very clear recommendations for the United Nations, including reforming how the veto process works on the Security Council.  I wonder if anyone at the UN has read her piece.  They should.

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