Monday, June 21, 2010

Israel and International Law

Today Otherjones is publishing a text by Professor Curtis Doebbler, professor of law at An-Najah National University in Nablus, Palestine, representative of Nord Sud XXI to the United Nations in New York and Geneva, and a member of the Brussells Tribunal Advisory Committee. The link is

"The starting point for any consideration of international law in relation to “the question of Palestine” — as the UN neutrally refers to it — is the right to self-determination. No right has been more important to so many peoples and states in the international community. Although we have a tendency to devote more attention to the international law of self-determination as it developed since the creation of the United Nations, the right to self-determination in the form that it is more relevant to “the question of Palestine” existed much earlier. In fact, this right can be traced back to the very existence of the nation-state, when it was decided that people living together in a particular territory have the right to form themselves into a sovereign state.

In other words, when there is no existing state, the right of self-determination gives the people concerned the right to form their own state. Applied to Palestine this means that after World War I when the Ottoman Empire was forced to relinquish sovereign over Palestine and when the British conquerors expressly denounced any interest in ruling Palestine, since that time the people living in Palestine have had the right to decide their own future.

As we know, this right was never recognised. Instead, first Britain and the international community acting through the United Nations denied the Palestinian people this right. This violated international law, as there is nothing in the UN Charter that allows the organisation the right to violate the right to self-determination. In fact, Article 1 of the UN Charter makes the right to self-determination one of the purposes for which the United Nations exists.

According to international law existing at the time, the creation of the State of Israel was illegal. Moreover, we know that once an illegal act has been committed by states, the consequences of that act remain illegal and may not be recognised as legal by other states. Thus even today it is correct to say that Israel is an illegal state and has been since its creation, no matter what its de facto position might be.

Even if one were to acknowledge the creation of Israel by the UN General Assembly’s adoption of resolution 181 on 29 November 1947, that resolution itself states, in Part 1, Subsection A, Paragraph 3, that “independent Arab and Jewish States and the Special International Regime for the City of Jerusalem … shall come into existence in Palestine.” In other words, in the very same paragraph as the State of Israel is created, so is the state of Palestine and the “international” city of Jerusalem.

Neither Israel nor the international community have respected the terms of this resolution. Instead, not only has Palestine been denied statehood, but also Palestinians are being offered about 3.5 per cent of the territory to which they had — and have — a right under the “roadmap” that the Quartet stresses as the basis for negotiations. Instead of a solution, this looks more like the theft of the right of self-determination from the Palestinian people.

Moreover, Israel has continued from 1947 to date to violate UN resolutions with impunity.

The occupation and international law

Just a day before the UN actually created the State of Israel, Israel proclaimed its own independence. Again this was done in violation of the Palestinians’ right to self-determination and in violation of the League of Nations Mandate to the British, which was still in effect.

When the Arab states took up arms to defend the Palestinians’ right to self-determination, Western states — as they had done regularly for centuries — supported the colonisation of Palestine by Zionists claiming to have a right to create the State of Israel. Whatever religious, historical or political basis the Zionists had, they did not have any grounds under international law and in fact violated this law.

Rather than reacting to a violation of international law, the international community allowed Israel to act unlawfully and even ratified the de facto outcome of the occupation of Palestine. Even territories that the international community agreed did not come under any Israeli claim were allowed to be annexed. The process of annexation continues to this day.

According to the United Nations, parts of the territory over which the Palestinians were denied their right to self-determination became Israel. About 45 per cent of the original mandate territory was considered by the UN as occupied.

Putting aside disagreement about Israel’s illegitimacy, according to Article 47 of the Hague Regulations annexed to the Fourth Hague Convention from 1907, an act of occupation become de jure when the occupying power de facto exercises jurisdiction over a territory. By the 1970s, Israel had de facto jurisdiction over all of the mandate territory, including the Gaza Strip, the West Bank, the Golan Heights and parts of Southern Lebanon. As such Israel became an occupying power over these territories and people within in them.

Somewhat like a mandate holder under the League of Nations system, Israel was therefore required by the rules of international humanitarian law to provide for the occupied population under its control. This means ensuring proper administration, judicial facilities, educational facilities, and healthcare facilities. Instead, Israel has increasing denied Palestinians these services. This has been most notably the case in Gaza.

While claiming to be acting in the name of national security, Israeli soldiers have shot and killed infants, children, women and men. Israel has repeatedly denied Palestinians the right to reach school and hospitals. And Israel regularly imposes it own administrative system of checkpoints and other forms of harassment, including its own courts, on Palestinians. All of these actions violate the international legal duties of an occupying power.

Israel’s actions denying the people of Gaza the basic necessities of life are a particularly onerous form of oppression that violates norms of international humanitarian law including the prohibition against collective punishment that is found in Article 33 of the Fourth Geneva Convention.

The right of self-defence

Israel has repeatedly invoked its right of self-defence to fight back against the Palestinians. While it is true that Israel may have a right to use force to protect itself from attack, it cannot justify the use of force to perpetuate an illegal situation. Thus, if one views the creation of Israel to be illegal, then so is any force used to maintain this illegal situation.

Even states entitled to use force in self-defence must satisfy several criteria. There must first be an armed attack against the state by another state, and any force used must be proportionate and necessary to achieve a lawful objective.

As indicated above, even if Israel had been entitled to use force against the Gaza Freedom Flotilla — which it was argued it was not — it would have only been able to use proportionate and necessary force.

A more interesting question is what type of force might be used against Israel, as it is the entity that has and continues to violate international law.

First, the UN Security Council could authorise the use of force against Israel, but this is a political decision that Israeli friends with veto power on the Security Council are likely to prevent.

Second, the UN General Assembly could authorise the use of force against Israel. This could be done by a simple majority of the assembly with no state having veto power. The action of the General Assembly is limited while the Security Council is seized of a matter, and arguably, acting on it, but it is the General Assembly that has the power to decide this question.

Third, Palestinians have a legitimate right of self-determination that entitles them to use force against Israel. Such use of force, although prima facie legal under international law, must conform to the rules of international humanitarian law. These rules include prohibition of attacks against civilians, either by design or because they are indiscriminate.

And fourth, every state in the international community has the right to assist the Palestinians in their struggle, including their armed struggle, to achieve their right to self-determination. Again, of course, such assistance must conform to the rules of international humanitarian law.

The Gaza Freedom Flotilla is an example of such assistance. The Gaza Freedom Flotilla is a general phrase that can be used to describe the boats attempting to bring humanitarian assistance to the people of Gaza. Even the Israelis do not deny that the boats are bringing humanitarian assistance. Nevertheless, Israel sees itself as entitled to stop the boats based on its suspicion that they will assist the self-determination struggle of the Gaza people, particularly their use of force against Israel.

The problematic nature of this argument is readily apparent. How can a state that is violating international law by subjecting an occupied people to inhuman and collective punishment justify actions to maintain its illegal ways? The simple answer is that it cannot. It is violating international law merely by maintaining an illegal regime, and just about everything it does that serves that end is illegal. This was the case with South Africa as it struggled to maintain its illegal apartheid regime. It increasingly exercised police powers to maintain its illegal hold over black South Africans. Sometimes the police acted less forcefully, and sometimes, black South Africans were subjected to court proceedings, but irrespective of the standards of these “concessions”, the South African government was acting illegally. Two UN Special Rapporteurs on human rights in Palestine — one a South African anti-apartheid campaigner and one a Jewish American professor — have criticised Israel for its illegal actions that they refer to as similar to, or worse than, the South African apartheid government’s actions.

The Israel argument is sometimes expressed in a more nuanced form concerning its embargo on Gaza. It claims that it no longer occupies Gaza and is therefore entitled to act against it in self-defence, through an embargo and the interdiction of ships bringing humanitarian assistance. The legal errors in this argument are many.

First, Israel interdicted the Gaza ships on the high seas. No state is allowed to stop and board ships on the high seas without the permission of the ship, unless the ships have been involved in international piracy. In fact, to act in violation of this fundamental rule of international law is itself piracy. Moreover, the crew of a ship under attack by pirates or unauthorised persons attempting to enter their ship by force are entitled to use necessary and proportionate force to repel the illegal invaders. In this case, this would mean that the ships crew would be entitled to use force that is equivalent to that of as highly qualified and heavily armed invader as the Israeli military.

Second, according to Article 23 of the Fourth Geneva Convention and the International Court of Justice in the Nicaragua Case, the provision of humanitarian assistance to people in need, especially under occupation, is always allowed and never an unfriendly act.

Third, the preventing of humanitarian assistance to a people in need is itself an illegal act.

Despite the importance of international law, this law is impotent unless it is applied, and Israel and its allies have proven themselves to be quite intransigent in their failure to respect international law. The law, nevertheless, is a powerful tool in the hands of those who seek to promote the rule of law.

Thus even if states like Israel do not respect the law, the law continues to exist as a minimum common denominator that has been agreed upon by states in the international community. It continues to serve as the best chance we have to live together, not even as friends, but merely without annihilating each other.

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