20 dec 2019
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Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan) and the Palestinian Center for Human Rights (PCHR) (hereafter the organizations) welcome, albeit with some reservations, the development from the Office of the Prosecutor, to finally progress the Situation of Palestine, and submit the question of territorial jurisdiction to the Pre-Trial Chamber of the International Criminal Court (ICC).
The Situation of Palestine has been stalled for five years in preliminary examination, despite the Office of the Prosecutor having received over 125 communications pursuant to Article 15 of the Rome Statute. [1] By 2016, the Office had “produced a comprehensive database of over 3,000 reported incidents and crimes that allegedly occurred during the 2014 Gaza conflict” |
which even at this point, must have indicated a reasonable basis to proceed.[2]
Today, 20 December 2019, marks over ten years since political representatives from the Government of Palestine on 21 January 2009, signed an Article 12(3) declaration [pdf] submitting the occupied Palestinian territory to the jurisdiction of the ICC. The declaration following at the time, the most heinous Israeli military assault on the Gaza Strip, killing 1,409 Palestinians, including 1,172 civilians of which 342 were children.
In April 2012, after three-years of silence from the Office of the Prosecutor, a mere two-page statement was issued, declining Palestine’s Article 12(3) declaration, on the basis that it was unclear whether Palestine was a State. In the meantime, Israel continued its colonization of Palestine and military offensives on the Gaza Strip, with so-called Operation Protective Edge in 2014, killing [pdf] 2,219 Palestinians, including 1,545 civilians of which 550 were children, in 51-days of heavy Israeli bombardments and shelling of densely populated civilian Palestinian areas.
However, since Palestine’s well-publicized recognition as a non-member observer State to the United Nations (UN) under General Assembly Resolution 67/19 in 2012, these issues have largely been put to rest. It must be noted, that even prior to recognition as a non-member UN observer State, Palestine was recognized by over 130 governments [pdf] in their bilateral relations as a State.
In the meantime, Palestine has acceded to the Rome Statute, became a member of the Assembly of States Parties of the International Criminal Court, acceded without reservation to seven international human rights treaties and four Optional Protocols, and has to date submitted two State reports to the Committee on the Elimination of Discrimination Against Women (CEDAW), and to the Committee on the Elimination of Racism (CERD). While the deposit by the State of Palestine of instruments of ratification to over 60 international treaties has been met with little objection by the international community of States, including declarations [pdf] on maritime delimitation.
Further, on 28 September 2018, the State of Palestine instituted contentious proceedings [pdf] against the United States of America before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with respect to a dispute concerning alleged violations of the Vienna Convention on Diplomatic Relations of 18 April 1961. And in December 2019, the United Nations Committee for the Elimination of Racial Discrimination, affirmed jurisdiction over the inter-state communication submitted by the State of Palestine against Israel for its failures and breaches under the Convention for the Elimination of All Forms of Racial Discrimination.
Notwithstanding, in her recent December 5th ‘Report on Preliminary Examination Activities 2019’, the Office of the Prosecutor, outlined that the situation in Palestine “raised a number of unique challenges” and that before coming to a determination under Article 53(1)(a), the issue of “exercise of territorial jurisdiction by the Court” would need to be resolved. [3]
This echoed the previous 2018 Report from the Office of the Prosecutor on Preliminary Examination Activities, which again cautioned that the “situation in Palestine has raised specific challenges relating to both factual and legal determinations”. [4] In respect of the latter, the Court would consider challenges to the Courts jurisdiction and the “scope of any such jurisdiction”.[5] In 2017, the Office of the Prosecutor, declared that “during the reporting period, the Office has continued to consider relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.”[6]
Despite this welcome development, our organisations question why the Office of the Prosecutor delayed for so many years in addressing such a seemingly integral question on territorial jurisdiction, especially as it was raised year after year since 2015, in each OTP Report on Preliminary
Activities. More precisely, the examination of preconditions to the exercise of jurisdiction, is usually considered a “first stage”[7] issue in preliminary examinations, and it is questionable why now, after five years, and after the Office of the Prosecutor had progressed by 2018 to “an advanced stage of its assessment of statutory criteria for a determination”[8], the question of territorial jurisdiction has only now come to the fore? Further, our organisations note with concern, that since the State of Palestine referral in 2018, the Prosecutor had full competence to proceed to investigation, without any need to seek the authorization of the Pre-Trial Chamber and should have done so, with confidence and without delay.
We submit that the questions posed to the PTC hark back to an earlier less palatable era. In November 2009, Al-Haq was informed by the then representatives from the Office of the Prosecutor that “complex legal issues” needed to be resolved, such as whether [pdf] “the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the Court meets the necessary statutory requirements.” In December 2019, at the launch of the 2019 Report, Prosecutor Fatou Bensouda again informed that there were outstanding “complex” issues, which needed to be resolved in relation to the Palestine situation.
At this level, it hardly needs pointing out that territories under occupation [pdf], retain full sovereignty, which is merely temporarily de facto suspended and during which time, the Occupying Power exercises limited rights of administration over the territory and does not have rights of sovereignty. To deduce otherwise, would mean that every Occupying Power, has in fact annexed the territories that they occupy, a position inconsistent with basic jus cogens principles prohibiting acquisition of territory through use of force. Meanwhile, the occupied population, maintain rights of self-determination and permanent sovereignty over national and natural resources.
In terms of the territory of the State of Palestine, it is well established that the territories occupied since 1967, are the territories beyond the Green Line. In fact, according to the State of Palestine, “the June 4, 1967 border, also known as green line, is the internationally recognized border between the occupied Palestinian territory (i.e. West Bank, including East Jerusalem, and Gaza Strip) and the State of Israel.”
In this vein, United Nations Security Council Resolution 2334 (2016) calls on States [pdf]“to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. The resolution which is internationally legally binding, further states that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”.
This position is supported by numerous international findings including inter alia the United Nations Commission of Inquiry[9], the Secretary General’s Fact Finding Mission, UNESCO,[10] and the Advisory Opinion of the International Court of Justice where the ICJ concluded, “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.[11] In addition to this, Palestine’s reports to the UN Treaty-Monitoring Bodies under the core human rights treaties that Palestine acceded to in 2014 cover all of the occupied territory since 1967 including area C, where Israeli settlements are located, in spite of the fact that this area is under Israel’s full control.
While the Oslo Accords provided for Israel’s temporary territorial jurisdiction over the settlements and functional jurisdiction over settlers, sovereignty still vested de jure in Palestine.
The temporary five-year arrangement under Oslo in no way negates the underlying illegality of the settlement enterprise, constructed on public and private lands unlawfully appropriated from Palestinians, the destruction of Palestinian properties, forcible transfer of the protected Palestinian population and unlawful transfer in of nationals of the Occupying Power, thereby altering the demography of the occupied territory to manipulate a Jewish majority, while erasing Palestinian presence.
As such, the Oslo Accords were a temporary administrative measure, implemented for what was intended to be a five-year transitional period, which ended in 1999. In addition, many of the provisions concluded between the PLO and Israel, violate provisions of the Geneva Conventions, and these agreements are therefore in breach of Article 47 of the Fourth Geneva Convention, which alongside Articles 7 and 8 of Fourth Geneva Convention, protect the occupied population from special agreements concluded between the Occupying Power and their political representatives in breach of minimum rights enshrined in the Geneva Conventions, including the annexation of occupied territory.
Further, Palestinian President Mahmoud Abbas has publicly confirmed that the Oslo Accords are no longer binding given Israel’s bad faith in failing to conclude the peace process and transition power to Palestine in the five year transitional phase, now over a quarter of a century ago.
Following this, in 2019 the Palestinian Ministry of Local Government issued a circular calling on all local authorities to exercise their powers and responsibilities in all areas of the occupied territory, regardless of artificial Israeli imposed classifications regarding Areas A, B and C. This included plans by the Palestinian Authority to progress the issuing of building permits to Palestinians in all parts of the occupied territory, now considered under full Palestinian jurisdiction.
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC, that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory.
To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation.
This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Al-Haq, Al-Mezan and PCHR continue to support the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law.
Our organisations maintain that only through justice will there be peace in Palestine. On behalf of the Palestinian victims that we represent, we urge in the interests of justice, that an impartial and transparent investigation is opened without delay, where the senior Israeli politicians and military commanders who through their policies and plans have perpetrated grave crimes against the Palestinian people, are held to account
————————————-
[1] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[2] The Office of the Prosecutor, “Report on Preliminary Examination Activities 2016” para 138, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
[3] https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf
[4] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), para. 268, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[5] Ibid.
[6] Office of the Prosecutor, “Report on Preliminary Examination Activities 2017” (4 December 2017), para. 72, available at: https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf
[7] International Criminal Court, “Situation in Palestine” (3 April 2012) para 3, available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
[8] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018) para. 282, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[9] A/HRC/40/CRP.2, “Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory” para. 138.
[10] Decision : 43 COM 7A.29 Hebron/Al-Khalil Old Town (Palestine) (C 1565), “Deplores the ongoing Israeli excavations, works, construction of private roads for settlers and of a Wall inside the Old City of Al-Khalil/Hebron which are illegal under international law and harmfully affect the authenticity and integrity of the site, and the subsequent denial of freedom of movement and freedom of access to places of worship and asks Israel, the occupying Power, to end all violations which are not in conformity with the provisions of relevant UNESCO conventions, resolutions and decisions.”
[11] “Legal Consequences of the Construction of a Wall In the Occcupied Palestinian Territory Advisory Opinion Of 9 July 2004” I. C.J. Reports 2004, p. 136, para. 120, available at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf
Today, 20 December 2019, marks over ten years since political representatives from the Government of Palestine on 21 January 2009, signed an Article 12(3) declaration [pdf] submitting the occupied Palestinian territory to the jurisdiction of the ICC. The declaration following at the time, the most heinous Israeli military assault on the Gaza Strip, killing 1,409 Palestinians, including 1,172 civilians of which 342 were children.
In April 2012, after three-years of silence from the Office of the Prosecutor, a mere two-page statement was issued, declining Palestine’s Article 12(3) declaration, on the basis that it was unclear whether Palestine was a State. In the meantime, Israel continued its colonization of Palestine and military offensives on the Gaza Strip, with so-called Operation Protective Edge in 2014, killing [pdf] 2,219 Palestinians, including 1,545 civilians of which 550 were children, in 51-days of heavy Israeli bombardments and shelling of densely populated civilian Palestinian areas.
However, since Palestine’s well-publicized recognition as a non-member observer State to the United Nations (UN) under General Assembly Resolution 67/19 in 2012, these issues have largely been put to rest. It must be noted, that even prior to recognition as a non-member UN observer State, Palestine was recognized by over 130 governments [pdf] in their bilateral relations as a State.
In the meantime, Palestine has acceded to the Rome Statute, became a member of the Assembly of States Parties of the International Criminal Court, acceded without reservation to seven international human rights treaties and four Optional Protocols, and has to date submitted two State reports to the Committee on the Elimination of Discrimination Against Women (CEDAW), and to the Committee on the Elimination of Racism (CERD). While the deposit by the State of Palestine of instruments of ratification to over 60 international treaties has been met with little objection by the international community of States, including declarations [pdf] on maritime delimitation.
Further, on 28 September 2018, the State of Palestine instituted contentious proceedings [pdf] against the United States of America before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with respect to a dispute concerning alleged violations of the Vienna Convention on Diplomatic Relations of 18 April 1961. And in December 2019, the United Nations Committee for the Elimination of Racial Discrimination, affirmed jurisdiction over the inter-state communication submitted by the State of Palestine against Israel for its failures and breaches under the Convention for the Elimination of All Forms of Racial Discrimination.
Notwithstanding, in her recent December 5th ‘Report on Preliminary Examination Activities 2019’, the Office of the Prosecutor, outlined that the situation in Palestine “raised a number of unique challenges” and that before coming to a determination under Article 53(1)(a), the issue of “exercise of territorial jurisdiction by the Court” would need to be resolved. [3]
This echoed the previous 2018 Report from the Office of the Prosecutor on Preliminary Examination Activities, which again cautioned that the “situation in Palestine has raised specific challenges relating to both factual and legal determinations”. [4] In respect of the latter, the Court would consider challenges to the Courts jurisdiction and the “scope of any such jurisdiction”.[5] In 2017, the Office of the Prosecutor, declared that “during the reporting period, the Office has continued to consider relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.”[6]
Despite this welcome development, our organisations question why the Office of the Prosecutor delayed for so many years in addressing such a seemingly integral question on territorial jurisdiction, especially as it was raised year after year since 2015, in each OTP Report on Preliminary
Activities. More precisely, the examination of preconditions to the exercise of jurisdiction, is usually considered a “first stage”[7] issue in preliminary examinations, and it is questionable why now, after five years, and after the Office of the Prosecutor had progressed by 2018 to “an advanced stage of its assessment of statutory criteria for a determination”[8], the question of territorial jurisdiction has only now come to the fore? Further, our organisations note with concern, that since the State of Palestine referral in 2018, the Prosecutor had full competence to proceed to investigation, without any need to seek the authorization of the Pre-Trial Chamber and should have done so, with confidence and without delay.
We submit that the questions posed to the PTC hark back to an earlier less palatable era. In November 2009, Al-Haq was informed by the then representatives from the Office of the Prosecutor that “complex legal issues” needed to be resolved, such as whether [pdf] “the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the Court meets the necessary statutory requirements.” In December 2019, at the launch of the 2019 Report, Prosecutor Fatou Bensouda again informed that there were outstanding “complex” issues, which needed to be resolved in relation to the Palestine situation.
At this level, it hardly needs pointing out that territories under occupation [pdf], retain full sovereignty, which is merely temporarily de facto suspended and during which time, the Occupying Power exercises limited rights of administration over the territory and does not have rights of sovereignty. To deduce otherwise, would mean that every Occupying Power, has in fact annexed the territories that they occupy, a position inconsistent with basic jus cogens principles prohibiting acquisition of territory through use of force. Meanwhile, the occupied population, maintain rights of self-determination and permanent sovereignty over national and natural resources.
In terms of the territory of the State of Palestine, it is well established that the territories occupied since 1967, are the territories beyond the Green Line. In fact, according to the State of Palestine, “the June 4, 1967 border, also known as green line, is the internationally recognized border between the occupied Palestinian territory (i.e. West Bank, including East Jerusalem, and Gaza Strip) and the State of Israel.”
In this vein, United Nations Security Council Resolution 2334 (2016) calls on States [pdf]“to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. The resolution which is internationally legally binding, further states that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”.
This position is supported by numerous international findings including inter alia the United Nations Commission of Inquiry[9], the Secretary General’s Fact Finding Mission, UNESCO,[10] and the Advisory Opinion of the International Court of Justice where the ICJ concluded, “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.[11] In addition to this, Palestine’s reports to the UN Treaty-Monitoring Bodies under the core human rights treaties that Palestine acceded to in 2014 cover all of the occupied territory since 1967 including area C, where Israeli settlements are located, in spite of the fact that this area is under Israel’s full control.
While the Oslo Accords provided for Israel’s temporary territorial jurisdiction over the settlements and functional jurisdiction over settlers, sovereignty still vested de jure in Palestine.
The temporary five-year arrangement under Oslo in no way negates the underlying illegality of the settlement enterprise, constructed on public and private lands unlawfully appropriated from Palestinians, the destruction of Palestinian properties, forcible transfer of the protected Palestinian population and unlawful transfer in of nationals of the Occupying Power, thereby altering the demography of the occupied territory to manipulate a Jewish majority, while erasing Palestinian presence.
As such, the Oslo Accords were a temporary administrative measure, implemented for what was intended to be a five-year transitional period, which ended in 1999. In addition, many of the provisions concluded between the PLO and Israel, violate provisions of the Geneva Conventions, and these agreements are therefore in breach of Article 47 of the Fourth Geneva Convention, which alongside Articles 7 and 8 of Fourth Geneva Convention, protect the occupied population from special agreements concluded between the Occupying Power and their political representatives in breach of minimum rights enshrined in the Geneva Conventions, including the annexation of occupied territory.
Further, Palestinian President Mahmoud Abbas has publicly confirmed that the Oslo Accords are no longer binding given Israel’s bad faith in failing to conclude the peace process and transition power to Palestine in the five year transitional phase, now over a quarter of a century ago.
Following this, in 2019 the Palestinian Ministry of Local Government issued a circular calling on all local authorities to exercise their powers and responsibilities in all areas of the occupied territory, regardless of artificial Israeli imposed classifications regarding Areas A, B and C. This included plans by the Palestinian Authority to progress the issuing of building permits to Palestinians in all parts of the occupied territory, now considered under full Palestinian jurisdiction.
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC, that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory.
To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation.
This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Al-Haq, Al-Mezan and PCHR continue to support the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law.
Our organisations maintain that only through justice will there be peace in Palestine. On behalf of the Palestinian victims that we represent, we urge in the interests of justice, that an impartial and transparent investigation is opened without delay, where the senior Israeli politicians and military commanders who through their policies and plans have perpetrated grave crimes against the Palestinian people, are held to account
————————————-
[1] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[2] The Office of the Prosecutor, “Report on Preliminary Examination Activities 2016” para 138, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
[3] https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf
[4] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), para. 268, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[5] Ibid.
[6] Office of the Prosecutor, “Report on Preliminary Examination Activities 2017” (4 December 2017), para. 72, available at: https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf
[7] International Criminal Court, “Situation in Palestine” (3 April 2012) para 3, available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
[8] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018) para. 282, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[9] A/HRC/40/CRP.2, “Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory” para. 138.
[10] Decision : 43 COM 7A.29 Hebron/Al-Khalil Old Town (Palestine) (C 1565), “Deplores the ongoing Israeli excavations, works, construction of private roads for settlers and of a Wall inside the Old City of Al-Khalil/Hebron which are illegal under international law and harmfully affect the authenticity and integrity of the site, and the subsequent denial of freedom of movement and freedom of access to places of worship and asks Israel, the occupying Power, to end all violations which are not in conformity with the provisions of relevant UNESCO conventions, resolutions and decisions.”
[11] “Legal Consequences of the Construction of a Wall In the Occcupied Palestinian Territory Advisory Opinion Of 9 July 2004” I. C.J. Reports 2004, p. 136, para. 120, available at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf
5 nov 2019
Friends of 15-year-old Palestinian Mohammed Ibrahim Ayoub, who was shot and killed by Israeli army along the Israel-Gaza border, sit by his grave in a cemetery in Beit Lahia on 21 April, 2018
Israel's approach to international law can be summed up as 'If you do something for long enough, the world will accept it'
Since removing settlers and redeploying its armed forces to the perimeter fence in 2005, Israel has subjected Palestinians in the Gaza Strip to numerous devastating assaults, a blockade, and routine attacks on the likes of farmers and fishermen.
Many of these policies have been the subject of substantial condemnation – from Palestinians, of course, as well as Israeli and international human rights groups, and even world leaders and politicians – albeit, critically, with little concrete action at the state level.
Israel, however, has sought to thwart even the possibility of meaningful accountability. Its approach has been very simple: in the face of criticism for breaking the law, change the law.
Providing cover
More precisely, Israel has been working hard to develop, and promote, interpretations of international law that provide cover for its policies and tactics in the Gaza Strip.
In January 2009, in the aftermath of an Israeli offensive that led to the UN-commissioned Goldstone report, a lengthy piece was published in Haaretz on the work being done by the international law division within the Military Advocate General’s office.
These are the officials responsible for vetting (or perhaps rubber-stamping) the military’s actions and tactics, and providing legal justification for such actions.
One of the interviewees in the article was Daniel Reisner, who had earlier served as the head of the international law division. “If you do something for long enough, the world will accept it,” he said. “The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries … International law progresses through violations.”
It is the Gaza Strip that Israel has used as a laboratory for such “progressive” violations. One example is the status of Gaza itself. Since 2005, Israel’s position has been that Gaza is neither occupied nor sovereign, but rather constitutes a “hostile entity”.
In her recent book Justice for Some, scholar Noura Erakat spells out the implications of such a designation, which renders Gaza “neither a state wherein Palestinians have the right to police and protect themselves nor an occupied territory whose civilian population Israel had a duty to protect”.
“In effect, Israel usurped the right of Palestinians to defend themselves because they did not belong to an embryonic sovereign, relinquished its obligations as an occupying power, and expanded its right to unleash military force, thus rendering Palestinians in the Gaza Strip triply vulnerable,” Erakat noted.
Deliberate targeting
The claim that the Gaza Strip is no longer occupied is, of course, flawed, not least because Israel has retained effective control over the territory. Its armed forces enter at will on land and at sea, and Israel retains control over Gaza’s airspace, electromagnetic spectrum, most entry-exit points and the population registry – in addition to the ongoing blockade.
The Gaza Strip is merely one part of the occupied Palestinian territory, along with the West Bank (including East Jerusalem), that forms a single territorial entity. Gaza’s occupied status since 2005 has thus been affirmed by numerous relevant bodies, including the UN Security Council.
Israeli officials’ legal “creativity” is most frequently demonstrated by some of the tactics adopted by the Israeli military during assaults.
During the 2014 Israeli offensive on Gaza, 142 Palestinian families had three or more members killed in the same incident. Such shocking figures were partly the result of Israel deliberately targeting dozens of Palestinian family homes, in addition to those struck as a result of indiscriminate bombardment.
Key here was Israel’s determination that any (alleged) member of an armed Palestinian faction was a legitimate target, even when they were not participating in fighting – ie, at home with their families – and that family members became legitimate “collateral damage” on account of the presence of a suspect in the home (even, by the way, if that individual wasn’t actually at home at the time). As one Israeli official put it: “You call it a home, we call it a command centre.”
Civilian casualties
Despite the fact that under international law, Israel needed to show that any targeted structure was performing a military function, as rights group B’Tselem described, “no official claimed that there was any connection between a house that was targeted and any specific military activity there”.
Therefore, the Israeli military’s explanations for the destruction of homes appeared “to be no more than a cover-up for the actual reason for the destruction, namely the identity of the occupants” – that is to say, these were “punitive house demolitions … carried out from the air, with occupants still inside”.
Another tactic used by the Israeli military is the issuing of “warnings” to civilians, whether in the form of phone calls or text messages to specific properties, or leaflets dropped to entire neighbourhoods. Israel presents this tactic as evidence that it goes out of its way to avoid civilian casualties, even though such warnings are, in fact, an obligation rather than “acts of charity”.
Crucially, of course, such warnings do not remove protected status from civilian residents. However, there is good evidence to suggest that this is not a view shared within the Israeli military.
In the aforementioned 2009 Haaretz article, one official said: “The people who go into a house despite a warning do not have to be taken into account in terms of injury to civilians, because they are voluntary human shields. From the legal point of view, I do not have to show consideration for them.”
So, in a disturbing twist, while warnings are presented as minimising civilian casualties, in reality, they serve to facilitate the attacks and can even contribute to the death toll.
Normalising illegality
These are just a few examples, as Israel seeks to normalise the illegal, with two goals in mind. Note that it was after the publication of the Goldstone report that Prime Minister Benjamin Netanyahu “instructed government officials to draft proposals for changing international laws of war”.
Israel’s “innovations” in international law are thus intended to facilitate the increasingly brutal suppression of Palestinians on the ground, while internationally, such interpretations are promoted to either muddy the waters in legal fora or, ultimately, to gain support from other state parties.
It is important to remember that the problem of accountability predates more recent developments. Israel has long violated international law, and justified certain policies in legal terms – from the confiscation of land in occupied territory to the establishment of settlements.
This helps us understand that the key problem is a political one – and that the answer to how to challenge impunity and resist Israel’s “innovative” interpretations of the law is the same: political pressure.
Failure on this front will be felt most keenly by those most vulnerable – the Palestinians.
Israel's approach to international law can be summed up as 'If you do something for long enough, the world will accept it'
Since removing settlers and redeploying its armed forces to the perimeter fence in 2005, Israel has subjected Palestinians in the Gaza Strip to numerous devastating assaults, a blockade, and routine attacks on the likes of farmers and fishermen.
Many of these policies have been the subject of substantial condemnation – from Palestinians, of course, as well as Israeli and international human rights groups, and even world leaders and politicians – albeit, critically, with little concrete action at the state level.
Israel, however, has sought to thwart even the possibility of meaningful accountability. Its approach has been very simple: in the face of criticism for breaking the law, change the law.
Providing cover
More precisely, Israel has been working hard to develop, and promote, interpretations of international law that provide cover for its policies and tactics in the Gaza Strip.
In January 2009, in the aftermath of an Israeli offensive that led to the UN-commissioned Goldstone report, a lengthy piece was published in Haaretz on the work being done by the international law division within the Military Advocate General’s office.
These are the officials responsible for vetting (or perhaps rubber-stamping) the military’s actions and tactics, and providing legal justification for such actions.
One of the interviewees in the article was Daniel Reisner, who had earlier served as the head of the international law division. “If you do something for long enough, the world will accept it,” he said. “The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries … International law progresses through violations.”
It is the Gaza Strip that Israel has used as a laboratory for such “progressive” violations. One example is the status of Gaza itself. Since 2005, Israel’s position has been that Gaza is neither occupied nor sovereign, but rather constitutes a “hostile entity”.
In her recent book Justice for Some, scholar Noura Erakat spells out the implications of such a designation, which renders Gaza “neither a state wherein Palestinians have the right to police and protect themselves nor an occupied territory whose civilian population Israel had a duty to protect”.
“In effect, Israel usurped the right of Palestinians to defend themselves because they did not belong to an embryonic sovereign, relinquished its obligations as an occupying power, and expanded its right to unleash military force, thus rendering Palestinians in the Gaza Strip triply vulnerable,” Erakat noted.
Deliberate targeting
The claim that the Gaza Strip is no longer occupied is, of course, flawed, not least because Israel has retained effective control over the territory. Its armed forces enter at will on land and at sea, and Israel retains control over Gaza’s airspace, electromagnetic spectrum, most entry-exit points and the population registry – in addition to the ongoing blockade.
The Gaza Strip is merely one part of the occupied Palestinian territory, along with the West Bank (including East Jerusalem), that forms a single territorial entity. Gaza’s occupied status since 2005 has thus been affirmed by numerous relevant bodies, including the UN Security Council.
Israeli officials’ legal “creativity” is most frequently demonstrated by some of the tactics adopted by the Israeli military during assaults.
During the 2014 Israeli offensive on Gaza, 142 Palestinian families had three or more members killed in the same incident. Such shocking figures were partly the result of Israel deliberately targeting dozens of Palestinian family homes, in addition to those struck as a result of indiscriminate bombardment.
Key here was Israel’s determination that any (alleged) member of an armed Palestinian faction was a legitimate target, even when they were not participating in fighting – ie, at home with their families – and that family members became legitimate “collateral damage” on account of the presence of a suspect in the home (even, by the way, if that individual wasn’t actually at home at the time). As one Israeli official put it: “You call it a home, we call it a command centre.”
Civilian casualties
Despite the fact that under international law, Israel needed to show that any targeted structure was performing a military function, as rights group B’Tselem described, “no official claimed that there was any connection between a house that was targeted and any specific military activity there”.
Therefore, the Israeli military’s explanations for the destruction of homes appeared “to be no more than a cover-up for the actual reason for the destruction, namely the identity of the occupants” – that is to say, these were “punitive house demolitions … carried out from the air, with occupants still inside”.
Another tactic used by the Israeli military is the issuing of “warnings” to civilians, whether in the form of phone calls or text messages to specific properties, or leaflets dropped to entire neighbourhoods. Israel presents this tactic as evidence that it goes out of its way to avoid civilian casualties, even though such warnings are, in fact, an obligation rather than “acts of charity”.
Crucially, of course, such warnings do not remove protected status from civilian residents. However, there is good evidence to suggest that this is not a view shared within the Israeli military.
In the aforementioned 2009 Haaretz article, one official said: “The people who go into a house despite a warning do not have to be taken into account in terms of injury to civilians, because they are voluntary human shields. From the legal point of view, I do not have to show consideration for them.”
So, in a disturbing twist, while warnings are presented as minimising civilian casualties, in reality, they serve to facilitate the attacks and can even contribute to the death toll.
Normalising illegality
These are just a few examples, as Israel seeks to normalise the illegal, with two goals in mind. Note that it was after the publication of the Goldstone report that Prime Minister Benjamin Netanyahu “instructed government officials to draft proposals for changing international laws of war”.
Israel’s “innovations” in international law are thus intended to facilitate the increasingly brutal suppression of Palestinians on the ground, while internationally, such interpretations are promoted to either muddy the waters in legal fora or, ultimately, to gain support from other state parties.
It is important to remember that the problem of accountability predates more recent developments. Israel has long violated international law, and justified certain policies in legal terms – from the confiscation of land in occupied territory to the establishment of settlements.
This helps us understand that the key problem is a political one – and that the answer to how to challenge impunity and resist Israel’s “innovative” interpretations of the law is the same: political pressure.
Failure on this front will be felt most keenly by those most vulnerable – the Palestinians.
15 feb 2019
The United Nations Human Rights Council is planning to issue seven resolutions against Israel during March, according to Israeli news outlets.
Israeli Channel 2 reported that a report of the Commission of Inquiry into the "Gaza Fence" and the black list of businesses operating inside illegal Israeli settlements and beyond the Green Line will be among the resolutions to be made.
The UN Special Coordinator's report in the Palestinian lands will also be reviewed, in addition to the Goldstone Report of 2009 and Israeli violations in occupied Golan.
Israeli violations of the International Law will also be reviewed by the UN Human Rights Council.
Israeli Channel 2 reported that a report of the Commission of Inquiry into the "Gaza Fence" and the black list of businesses operating inside illegal Israeli settlements and beyond the Green Line will be among the resolutions to be made.
The UN Special Coordinator's report in the Palestinian lands will also be reviewed, in addition to the Goldstone Report of 2009 and Israeli violations in occupied Golan.
Israeli violations of the International Law will also be reviewed by the UN Human Rights Council.
