Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 1)

Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 1)

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.]

On the anniversary of the International Day of Human Rights (December 10th) the European Parliament approved a four-year agreement with Morocco to allow European boats to fish in territorial waters off Western Sahara. The EU does not recognize Western Sahara as part of Morocco. Furthermore, the occupation of Western Sahara represents a violation of the United Nations Charter prohibition of aggression and forced annexation.

Acting as a realist rather than normative power, the EU adopted an approach which contradicts some of its own policies applied in other contexts. This is particularly evident once that the fisheries agreement is analyzed in the frame of the recent (July 2013) EU guidelines barring loans (which constitute less than 10 percent of funds the EU allocates in Israel) to Israeli entities established, or that operate, in the territories captured in June 1967 (the “EU Guidelines”). The EU-Morocco deal applies not just to the area under internationally recognized Moroccan sovereignty, but to all areas under its jurisdiction, including the Moroccan-occupied Western Sahara. The EU Guidelines, on the other hand, apply to the West Bank, East Jerusalem, and the Golan Heights: all areas under Israeli occupation.

This inconsistent approach plays in the hands of some of the most active supporters of the occupation of the Palestinian Territories and represents a major blow for the EU’s international credibility. Eugene Kontorovich pointed out for example that the positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco and the ones applied in contexts such as Northern Cyrus, Tibet, or Abkazia/Ossetia. According to Kontorovich, the EU approach regarding Western Sahara “is consistent with all prior international law […] the EU is right about Western Sahara – which means it is wrong about Israel.” [italics added]

This post and its follow-up, which will be posted later today, argue that the EU is right about Israel and wrong about Western Sahara. Together, they discuss the EU approach to Israel-Palestine in a comparative way by first examining EU policy in Northern Cyprus and Western Sahara – two crucial cases often raised by critiques of EU policy towards Israel to highlight EU double-standards – before turning to the Israeli-Palestinian case itself in the second post.

The case of Northern Cyprus

It is often claimed that Brussels “knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus”, and that in Northern Cyprus “it is EU policy to provide grants specifically for settlers of such territory”. The reality is indeed more complex.

As in the case of the Israeli entities established in the Palestinian territories under Israel’s national law, the EU does not provide support to Turkish entities established in Northern Cyprus under Turkey’s national law. As happens also in relation to Israeli natural persons based in or carrying out activities in the occupied Palestinian territories, the EU has taken appropriate steps to evaluate the most suitable implementation methods for “individual projects” in Northern Cyprus, where perhaps half of the estimated 300,000 residents were either born in Turkey or are children of settlers. Quoting the EU report on the issue, as it cannot enter into financing agreements with the Turkish Cypriot authorities, “because they are not officially recognised by the international community, the [EU] Commission has primarily implemented the assistance by entering into contracts directly and acting as the sole contracting authority.”

These policies are carried out by the EU with the official purpose “to facilitate the reunification of Cyprus” and with the aim of “improving the contacts between the two communities”. They are fully consistent with international law, including with Article 43 of the Hague Regulations, according to which building infrastructure is to a certain extent part of the occupier’s obligations, as long as the infrastructure is built for the benefit of the local population.

The case of Western Sahara

Since decades Western Sahara and the Palestinian territories are witnessing two struggles for self-determination. Both areas register human rights violations and both are recognized by the United Nations as being illegitimately under the rule of a foreign power. The two contexts, however, have few other points in common. Still today Western Sahara represents one of the most sparsely populated territories in the world. Contrary to Palestine and its local majority, under Spanish colonial rule Western Sahara was inhabited mainly if not only by nomadic tribes which paid allegiance to different powers. When territorial boundaries have been imposed by the colonial powers, the nomadic tribes that roamed sub-Saharan region were largely ignored. Several Sahrawi tribes, characterized by an internal governance structure, paid allegiance to the central authority of the monarchy in Morocco.

This aspect has been confirmed by 1975’s International Court of Justice’s (ICJ) advisory opinion, which, beside upholding the right of the country’s inhabitants to self-determination, pointed out that there were “legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara”. Sahrawis have the full right to self-determinate their future and Morocco should be considered accountable for its violations of human rights. Nonetheless, it is still today a matter of harsh debates to which extent Polisario – the Sahrawi rebel national liberation movement, supported since 1975 by the Algerian government, committed to put an end to the Moroccan occupation of Western Sahara – should be considered the sole or even the main legitimate representative of the Sahrawi people.

Despite the evident differences between the two contexts, the problem remains: the EU (and the UN) recognizes Western Sahara as an occupied territory. Either Brussels changes its standpoint on the issue, or it has to be consistent with its own policies and procedures. What is at stake is the political and moral credibility of the EU. This is even more the case considering that in signing the recent fisheries agreement the aspirations of the local indigenous Sahrawi population as well as the concerns expressed by several international organizations have been largely ignored. Greenpeace adviser Justine Maillot noted for example that the “increasing the EU catch in the waters of Morocco and Western Sahara will lead to overfishing and conflict with the needs and interests of local people.”

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Tali Kolesov Har-Oz and Ori Pomson

The Author states that both Western Sahara and the Palestinian territories “are recognized by the United Nations as being illegitimately under the rule of a foreign power”. I am not sure which particularly UN organ the Author is referring to or whether it has the authority to constitutively determine the illegality of another State’s presence. In any event, and assuming arguendo Judea and Samaria/West Bank is occupied, Israel’s presence in the Territories derives from a lawful act of self-defence. Thus, even the ICJ in its Israel-bashing Wall advisory opinion did not consider Israel’s “occupation” illegal, whereas only Judge Elaraby stated otherwise (and we know what happened to him).
 
Does this make a difference? Yes, in accordance with the principle of ex injuria jus non oritur. As Morocco’s presence derives from an illegality, measures taken by it in Western Sahara beyond “acts and transactions… relating to public property, concessions, etc.” must be considered null.

Mihai Martoiu Ticu

@Ori
Even if the occupation would be in self-defence the local population still has the right to externa self-determination, which means the right to determine the future of the territory, including the right to an independent state.
Moreover, see here scholars arguing that the occupation is indeed illegal.
 

Sivi
Sivi

Ori I am not sure what you mean with ‘Israel’s presence in the Territories derives from a lawful act of self-defence’. There is nothing like a lawful preventive act of self-defence in international law. Under the UN charter, states may not initiate war against another. Force may, however, be used in defense in the event of an “armed attack”.

Furthermore, in Quigley’s words, ‘the june 1967 war, rather than serving as precedent for preventing war, should be the poster child for pretexual invocation of force used in advance’.

Tali Kolesov Har-Oz and Ori Pomson

Mihai, the reference to external self-determination is controversial in it of itself. While there are the theoretical exceptions provided by Cassese (and stated obiter dicta by the Canadian Supreme Court, relying on Cassese), these remain in the realm of theory and have yet to implemented in practice (and would appear only to apply in the most severe circumstances – and it’s difficult to see how that of Judea and Samaria/West Bank would constitute one of them). This conclusion shouldn’t be surprising considering the vagueness of the concept of self-determination. In actual practice, external self-determination has only been applied as a legally binding obligation in instances of post-colonialism. In any event, I’m unaware of a customary (or conventional) norm that illegalises occupation if it has continued for a certain period of time. While Orna Ben-Naftali et al. indeed have an interesting theory concerning prolonged occupation, there seems to be little actual State practice and opinio juris to support their contention. This is hardly surprising since the “occupying” State has an interest in protecting the self-determination of its own people – something difficult to maintain without security.     Sivi, State practice and opinio juris has accepted the principle of anticipatory self-defence… Read more »

Canuck

Ori states, “…Israel’s presence in the Territories derives from a lawful act of self-defence. ”
That is probably the most legally, intellectually and rationally absurd remark I have seen to date in 2014.
Reading further, when Ori qualifies the ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory decision as “Israel-bashing Wall advisory opinion”, I stopped reading all together.
Thought we were in the 21st Century!

Kevin Jon Heller

Canuck,

I stopped reading when I saw the expression “Judea and Samaria”…

Harris
Harris

I’m very interested in the legal discussion that is being held here; however, Canuck and Kevin, ad hominem attacks are not relevant legally and only deteriorate the level of conversation. I’d love to hear what you have to say about the essence of the legal conclusions reached by Ori.

R. H.
R. H.

OJ bloggers probably have more important matters to attend to than comment on “legal conclusions” of every person who devises his/her own sci-fi legal theory; you know there’s one when you see “Wesbank”, “occupied” and “arguendo” in one sentence.

miriam
miriam

Ori@
the State “has an interest in protecting the self-determination of its own people – something difficult to maintain without security”…. and in pushing new settlers to colonize the area. Security often works just as a blanket to cover other interests.
 You claim that “State practice and opinio juris has accepted the principle of anticipatory self-defence when an armed attack is imminent”. It is more complicated than this and, on top of everything, the sentence “when an armed attack is imminent” does not apply to this case. Proponents of anticipatory self-defence have sought examples predating the june 1967 war but have come up empty. The US could clear the air in discussion of a resolution of this issue by simply acknowledging the facts as they appear in “Foreign Relations of the United Nations 1964-1968” – that the US assessment was that Egypt had no intention of attacking Israel, that the US tried desperately to dissuade Israel from attacking Egypt, and that Jordan and Syria entered the hostilities only in response to Israel’s invasion of Egypt.
 

Kevin Jon Heller

Harris,

My comment was not remotely ad hominem. I said nothing about the kind of person Ori is. I simply indicated, in shorthand, that I believe there is no point in having a legal argument with someone who feels comfortable describing the occupied West Bank as “Judea and Samaria.”

Harris
Harris

Kevin,
The fact that you just used the phrase “with someone”, points exactly to the use of ad hominem. If the same argument were given by someone who would not use such jarring terminology, what would be your legal stance?

Kevin Jon Heller

Harris,

You need to refresh your recollection of what an ad hominem attack is. Brian Leiter has a good explanation here.

Harris
Harris

While that is an interesting explanation (which actually strengthens my point, as you had used his terminology as a reason to discredit his arguments, while those arguments are not based on the truthfulness or credibility, vel non, of those terms) — I’m still interested in hearing (or, reading) your legal response. 

Morris
Morris

One has to assume that Kevin similarly ignores The League of Nations Mandate for Palestine (Eretz Israel) and the UNGA Resolution 181 which both refer to the District of Samaria, Samaria and Judea.
 
The terms are geographical.
West Bank is a term that originated from the illegal occupation of Cisjordan by Transjordan in 1948/9.

Miller
Miller

I was drawn to this website by its self-description as “a forum for informed discussion and lively debate about international law and international relations.” As such, I am appalled at what I’ve read on this thread. According to numerous posts herein, it is OK to have a “lively debate” about the Israel/Palestine dispute as long as you accept in advance that the Palestinians are correct and that the West Bank is “occupied Palestinian territory.” Since Ori was not willing to accept the Palestinian narrative in advance, he has been attacked ad hominem (as noted by Harris) and deemed unworthy of a response. Those few who did respond at least to reject Ori’s contention that the Israeli pre-emptive attack on Egypt and Syria in the 6 Day War was legal under international law, other than Mihai and Sivi, have used arguments like “Ori states, “…Israel’s presence in the Territories derives from a lawful act of self-defence. ”That is probably the most legally, intellectually and rationally absurd remark I have seen to date in 2014.” Explanation (historical or legal) of such assertion: none. Apparently, Res Ipsa Loquitor on this site: the assertion speaks for itself. Apparently, “in the 21st century” , Israel… Read more »

Mihai Martoiu Ticu

@Ori
==Mihai, the reference to external self-determination is controversial in it of itself.==
It is not controversial at all. The most states in the UN become independent based on this right. ICJ treated the occupied territories as an interrupted case of decolonisation + a military occupation. In both case the local population has the right to self-determination. Palestine was an Ottoma colony after all and a mandate. Populations in colonies and mandates have the right to self-determination. The Jordanian and the Israeli occupations would not void this right.
 

miriam
miriam

Harris, legal response to what?   Ori wrote 3 wrong things in 1 sentence:   “…Israel’s presence in the Territories derives from a lawful act of self-defence. ” 1) As the seconf part of this post pointed out, “It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories”… Read more »

maon
maon

“judea and samaria…the terms are geographical…West Bank is a term that originated from the illegal occupation of Cisjordan by Transjordan in 1948/9”.

Morris, the terms are political. If want your “judea-samaria” push the State of Israel to give back the coast between Ashkelon and Ashdod that was not occupied by the “israelites” for one single day in its entire history. Otherwise you risk to be selective. And BTW, jews were given Judea and not Samaria. Jews descend from Judah, and not Ephraim, Manasseh etc. who were ancestors of Samaritans. Most Samaritans, that at the times were despised by Orthodox Jews in Jerusalem, converted to other religions after VI-th century, and the largest number of both Samaritans and their descendants is in the area of Nablus. Samaritans were not affected by the expulsion of Jewish rebels by Romans and their population was large enough that they rebelled when Byzantines tries to forcibly convert them to Christianity in VI-th century.

miriam
miriam

Miller

“ as long as you accept in advance that the Palestinians are correct and that the West Bank is “occupied Palestinian territory.”:

did you read the second post of this article? It’s also, if not mainly, about this issue.

“Explanation (historical or legal) of such assertion…”: again, check post n. 2, we dont have to repeat everything in the comments.

“Israel (or its supporters) is not even entitled to defend itself in writing”:
playing the role of the victim? i am very happy to read informed comments from persons with different ideas. for now Ori’s comments were rather weak, this doesn’t mean that we will not read or take into consideration yours or his coming comments.

MS
MS

To bring us back to the original question regarding EU standards I propose that the EU establish its good faith credentials and create an example that could lead to resolution of the Israeli-Palestinian conflict.  It could do so by ending the illegal occupation of the South Bank (aka Andalusia) of the Iberian peninsula.  Step 1 – relocate the existing populations from the south to their historical homelands of Catalonia, Asturias and Galicia.  Step 2 – restore the stolen property and lands stolen  from those Moslems and Jews illegally expelled.  Step 3 – allow a harmonious multi-cultural state to arise which could be an example to others.

Hostage
Hostage

Re: I am not sure which particularly UN organ the Author is referring to or whether it has the authority to constitutively determine the illegality of another State’s presence.   The General Assembly has adopted resolutions in both regular sessions and in Emergency Special Sessions which decided that Israel’s continued occupation of the Arab territories captured in 1967 was illegal. It said the situation violated the UN Charter and UN resolutions, including ones which called for an immediate and unconditional withdrawal, and said the situation constituted aggression as defined in its Definition of Aggression, A/RES/3314 (XXIX) (14 December 1974). *General Assembly Resolution ES-9/1 link to un.org *General Assembly resolution 39/146 link to un.org In the “Certain Expenses” case, which dealt with the power of the General Assembly to deploy the UNEF force to the Sinai and levy assessments to defray the costs, the International Court of Justice stated that the role of the Security Council in the maintenance of international peace and security is primary, but not exclusive. It noted that decisions adopted by the General Assembly are not limited to hortatory ones or mere recommendations, and that, among other things, decisions adopted under the terms of Article 18 could… Read more »

Morris
Morris

Maon, the terms are geographical and historical, not political.
 
Samaria was the capital of the Kingdom of Israel and later incorporated into the Roman province of Judaea.
 
Whether the Samaritans were descended from the lost Israelite tribes or from a transplanted population of Assyrians, their name was taken from the city of Samaria that had previously been the Israelite capital.
The reason the Samaritans survived the Roman exile was because they were in conflict with the Jews thereby earning the respect of the Romans. Under Byzantine rule, community was practically wiped out and those who survived lived as second class citizens/dhimmis until the arrival of the British.
 
 

Morris
Morris

Hostage, I must depart from your opinion concerning the Jordan. To begin with, the two exceptions to the prohibition of use of force (self-defence or UNSC authorisation) are absent for justifying Jordan’s invasion in 1948. In any event, while being a guiding principle of the UN Charter, a legal right to self-determination itself was yet to form (see e.g. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 37-43 (1995); Malcolm N. Shaw, Self-Determination, Human Rights, and the Attribution of Territoryin From Bilateralism to Community Interest: Essays in Honour of Bruno Simma590, 598 (Ulrich Fastenrath et al. ed., 2011)). Moreover, as noted by a Chamber of the ICJ in Gulf of Maine, “uncertainties and a fair degree of inconsistency” in policy cannot constitute acquiescence.

Kevin Jon Heller

Yep, mere coincidence that the commenter on this post who is pushing the ultra-right Israeli line uses the terms “Judea” and “Samaria.” Nothing remotely political about that.

Morris
Morris

“ultra-right Israeli line”
They are the names for the territory in the Hebrew language.

Hostage
Hostage

Re: Hostage, I must depart from your opinion concerning the Jordan. To begin with, the two exceptions to the prohibition of use of force (self-defence or UNSC authorisation) are absent for justifying Jordan’s invasion in 1948.   The Palestinian Arabs had no organized police force or armed forces. King Abdullah and the government of Transjordan had received, and were still receiving, many requests and petitions from Palestine Arab notables. In all the communications, the Palestinians begged for the help and protection of the Arab Legion as soon as the British forces withdrew. The Transjordan government proposed to send the Arab Legion across the Jordan when the British mandate ended, and to occupy only that part of Palestine awarded to the Arabs which was contiguous with the frontier of Transjordan. See Sir John Bagot Glubb’ “A Soldier With The Arabs”, Harper, 1957, pages 63-66. Historian Eugene Rogan says that petitions, from nearly every town and village in Palestine, are preserved in “The Hashemite Documents: The Papers of Abdullah bin al-Husayn, volume V: Palestine 1948 (Amman 1995)”. See Chapter 5, Jordan and 1948, in “The war for Palestine: rewriting the history of 1948″, By Eugene L. Rogan, and Avi Shlaim, Cambridge University… Read more »

Hostage
Hostage

Re: In any event, while being a guiding principle of the UN Charter, a legal right to self-determination itself was yet to form (see e.g. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 37-43 (1995);   With all due respect, one of the objections to the UN Mediator’s proposal for a union between Transjordan and Arab Palestine was that some of the UN delegations did not recognize the right of the General Assembly to go on making recommendations after the peoples living there had been emancipated from the international mandate and could decide the question for themselves. See UN Document A/AC.25/W/19, 30 July 1949, “The Future of Arab Palestine and the Question of Partition”   Ernest Gross, a Legal Counsel to the US State Department, wrote an advisory opinion at the time which explained that, in the absence of the mandatory or other administration, the law of nations recognized the inherent right of the people of the “communities” mentioned in the mandate to organize a state and operate government in the areas that they inhabited. He pointed out that Transjordan was an example of one of the communities that had been subject to the terms of the mandate. See “Memorandum by the… Read more »

Brandon
Brandon

Hostage wrote “…the Rome Statute which explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter in illegal.” Maybe smarter minds can assist me here, but I just could not find anything in the Rome Statute that remotely says anything about all military occupations are illegal. Furthermore, can some explain to me what a legal occupation is or would look like? And if occupation is illegal, then why does the Fourth Hague Convention provide legal guidance on occupation; and why is the entire Fourth Geneva Convention dedicated to governing occupation if it were illegal. In other words, why write a treaty to govern something that is illegal?  

Kevin Jon Heller

Occupation is not per se illegal under IHL. Certain activities during occupation — such as annexation, transfer of civilians into occupied territory, etc. — are.

Kevin Jon Heller

That said, in the present era, occupation is very likely to run afoul of the jus ad bellum. Even if an initial occupation is lawful self-defence, the jus ad bellum‘s necessity and proportionality requirements make it essentially impossible to justify maintaining the occupation long-term. Contra Ori, therefore, it is irrelevant whether the initial occupation of the West Bank can be defended on the basis of self-defence; even if it could, the fact that the ongoing occupation “derives from” the initial defensive act does not render it legal. Whatever justification existed for the initial occupation (and to be clear, I do not think there was any such justification) has long since ended.

Hostage
Hostage

Re: Hostage wrote “…the Rome Statute which explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter in illegal.”   I meant to say that there are several multilateral anti-war and conciliation treaties – including the Montevideo Convention, and the OAS Charter – and the Rome Statute. Between them all they either explicitly state that all military occupations are illegal or that an occupation in violation of the UN Charter is illegal. The Rome Statute is an example of the latter, based on the General Assembly’s Definition of Aggression. On the other hand, the prohibitions in the Montevideo Convention and the OAS Charter did not admit any exceptions.   Mary Ellen O’Connell, published a paper for an American Society of International Law task force, “The Myth of Preemptive Self-Defense” (pdf). O’Connell said that in the past commentators had defended Israel’s attack on Egypt on the grounds that it was anticipatory self-defense. She cited contrary evidence, like General Rabin’s remarks in the now infamous Le Monde interview, and said: “Israel stated that it had convincing intelligence that Egypt would attack and that Egyptian preparations were underway. We now know that the Israel acted… Read more »

Hostage
Hostage

P.S. I recognize that the amendments to the Rome Statute that make military occupations in violation of the UN Charter a punishable offense have not entered into effect for the ICC.
 
But the Rome Statute is simply reciting a customary definition that appeared in General Assembly resolutions on the Definition of Aggression and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Any state could employ those in the exercise of its own jurisdiction.
 
In R. v Jones, one of the Law Lords advised: “… [T]hat the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.”

Brandon
Brandon

@Kevin – I should note that I despise the ongoing occupation (and even more so the continued settlement construction) and am not trying to defend it from a legal or moral perspective. Thankfully, the proportion of the population in Israel that call the West Bank by any other name is a significant minority. But getting back to the law. Kevin, you said that “in the present era, occupation is likely to run afoul of the jus ad bellum.” But aren’t you mixing the jus ad bellum and jus in bello regimes here? Meaning, you cannot have an occupation without resorting to an armed conflict first, however justified or not. Further, how can the jus ad bellum principles of necessity and proportionality be incorporated into an assessment of maintaining an occupation for any period of time? Occupation and occupation law exist in the framework of an armed conflict where jus ad bellum no longer applies. @Hostage – So which is it? All military occupations are illegal or just those that violate the UN Charter? I don’t see how an occupation can violate the UN Charter given use of force and armed conflict comes first (which would be the trigger for unlawfulness if applicable), then only if effective control… Read more »

carl meyer
carl meyer

Hostage@ and Israeli@, I didn’t write that sentence but simply pasted and copied a passage taken from the second part of the article that we are discussing. I think that it is also relevant for the answer that Israeli@ is searching for: “It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed… Read more »

Kevin Jon Heller

Israeli, No, I don’t think I’m mixing them. Regardless of whether the occupation can be justified under the jus ad bellum, it must comply with IHL. My point is that although it is possible to imagine an occupation that is lawful under the jus ad bellum — say, a state crossing into a neighbouring state and temporarily controlling territory that a non-state actor is using as a base for armed attacks — the requirements of proportionality and necessity continue to apply. So once the armed attacks that gave rise to lawful self-defence cease, the occupation must end. That’s the problem with Ori’s mistaken argument that Israel’s occupation of the West Bank is legal because it (arguably; I don’t agree) “derives from” a lawful act of self-defence. There is no doctrine of “derived from” in international law; once the occupation was no longer necessary to (supposedly) defend Israel from armed attack, Israel had to withdraw from the West Bank. The occupation is thus currently illegal under the jus ad bellum, and it has been for a long time — particularly in terms of Israel’s annexation of territory, which is per se illegal under international law. The occupation is also, and independently,… Read more »

Brandon
Brandon

Kevin, If I understand you correctly, you are saying that because (in your opinion) the initial use of force by Israel in 1967 was unlawful, that renders everything afterwards unlawful? Even though the jus in bello does not care who started the armed conflict or why? And if, according to you, the jus ad bellum principles of necessity and proportionality apply during armed conflict (which I believe is incorrect), then how do they interact with the jus in bello principles of necessity and proportionality? Clearly they are not the same. And where is it stated that “once the armed attacks that gave rise to lawful self-defense cease, the occupation must end.”? Again, while I do not advocate for continued Israeli occupation, I do not believe this is accounted for in GC IV. Aside from the fact, which you conveniently ignore, that Israel has been continuously attacked from the W. Bank (not anymore thanks to the security barrier) and Gaza Strip (even as of this morning while numerous dignitaries were visiting Israel for the former Prime Minister’s funeral). And given the resounding scholarly criticism of the non-binding Wall AO, I’m surprised it is still such an oft-referenced document.  In short, your logic seems to be that… Read more »

carl meyer
carl meyer

Israeli, I think that you put in Kevin’s mouth something that he didn’t claim (“your logic seems to be that if the resort to force was unlawful, that any subsequent occupation is also unlawful”).  Anyway, he will answer about it. What I want to point out is that when you refer to the pretext of the “…continuously attacked” from Gaza you should always remember that: 1) The Gaza Strip is mainly inhabited by refugees, most of them belonging to the families kicked out and transferred by bus in 1948 from al-Jura, Najd and Majdal, the city that today you call Or HaNer, Sderot and Ashkelon (Majdal is included in present-day Ashkelon). It is there that you have to look if you want to understand the roots of the Gaza’s problem. 2) Israel’s ‘disengagement’ from the Gaza Strip did not constitute the end of occupation because, despite the redeployment of its military ground forces from Gaza, it retains and exercises effective control over the territory.   Furthermore, should we ignore ‘Wall AO’ just because it doesn’t fit your narrative? Can you point out the “resounding scholarly criticism” to which you referred to?  You continue to tell us that you “despise the ongoing occupation” but you continue… Read more »

Hostage
Hostage

Re: But aren’t you mixing the jus ad bellum and jus in bello regimes here?   The Chapter VII provisional settlement imposed by UNSC Resolutions 62 and 73 was still in full force and effect, pending a final settlement. So, it did constitute an explicit jus ad bellum treaty obligation.   @Hostage – So which is it? All military occupations are illegal or just those that violate the UN Charter? I don’t see how an occupation can violate the UN Charter given use of force and armed conflict comes first (which would be the trigger for unlawfulness if applicable), then only if effective control is present does the regime of military occupation apply pursuant to GC IV which does not govern an illegal situation. This seems like putting the cart before the horse, no?   International law evolves over time. During the Nuremberg era Hersh Lauterpacht’s opinions in Oppenheim’s International Law, 6th and 8th Editions were cited to support the claim that Article 50 of the Hague regulations permitted reprisals and collective punishments against civilians, towns, and villages. That led to some acquittals and the adoption of Article 33 of the 4th Geneva Convention (1949), which aimed to prohibit the practice. The Security… Read more »

Hostage
Hostage

Re: Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories” in place of “occupied territories.”   FYI, the recent treaty between Palestine and Jordan seemingly reaffirmed an on-going confederation between the two states and the qualified nature of the 1988 Jordanian disengagement from the West Bank. The Jordanian Council of Waqf and Muslim Affairs still exercises jurisdiction over the Holy sites in East Jerusalem and its municipal laws are still applied with the consent of all the parties concerned. Israel has even employed them as the basis to create new “state lands” for its settlements in the West Bank. So I suppose that the ICC Prosecutor could obtain jurisdiction from its member state Jordan, since the Rome Statute applies, at least in theory, to any crimes committed on territory subject to a member state’s jurisdiction.   The fact that the two peoples had a falling out years ago, doesn’t alter the fact that the inhabitants… Read more »

Brandon
Brandon

Carl, if Israel had effective control over the Gaza Strip, I promise you that not a single rocket would be fired into Israeli territory (like the two that were fired today in honor of PM Sharon’s funeral). But the IDF’s effectiveness aside, please explain to me where your new criteria of effective control emanate from, especially when the ICRC determines effective control to consist of: (1) “the overthrown government is unable to exercise its authority”; (2) “the occupying Power is in a position to fill that gap by exerting its own power” and “implies in principle that enemy troops should be deployed in the territory concerned and succeed in imposing the minimum stability that will allow them to exercise their responsibilities deriving from the law of occupation.” Then, the ICTY in both Blaskic and Naletilic determined that “Occupation exists when a State has ‘overall control’ of the local agents actually exercising ‘effective control’ over the territory in question.”  The Hamas government in Gaza runs a very tight ship (well no ships allowed, but you know what I mean). Explain to me how Israel or the IDF meet any of the criteria above. Then explain to me the role that Egypt plays in controlling the southern border. Hostage: As… Read more »

carl meyer
carl meyer

Israeli@
Territory that was militarily conquered remains occupied until sovereignty supplants foreign control. As long as the Gaza Strip – that is part of a self-determination unit –  is non-sovereign, it is occupied, and as long as it is occupied its relationship to Israel continues to be governed by IHL (the Criminal Procedure Law of 2006, for example, allowed Israel to incarcerate Palestinians from the Gaza Strip suspected of criminal offences in detention facilities in Israel and to prosecute them in Israeli civil courts).
Gaza (unilateral) withdrawal was a disengagement and not an end of accupation (Israeli drones monitor Gaza from the air, Israeli naval ships prevent Gazan fishermen from sailing more than 4 kilometers from shore..). On top of this, the wall and the evacuation of the ground settlements in Gaza were parts of the same national security logic of unilateral solutions that the settlements were – perpetuating and intensifying animosity and violence, rather than undoing them (and btw, in 2005 Sharon removed 7,000 settlers from Gaza, and simultaneously settled tens of thousands of others in settlements across the West Bank).
 
 

carl meyer
carl meyer

Israeli, let me add 3 other points. 1) You write: “I always find it amusing that the common theme amongst Israel’s detractors is..”. I don’t know to whom you were referring to. I speak for myself. Please don’t put other people in a useful (for you) box. I and many other people that have written comments here are not Israel’s detractors at all. I fully recognize Israel’s right to exist and to defend itself. I fully oppose Israel’s right to oppress other people. And I fully oppose people that adopt your same selective use of international consensus and law in order to justify the oppression of other human beings (human beings that already paid a huge price so that your dream could become true). 2) Israeli military legislation initially accepted GCIV as lex specialis in the OPT, and therefore they were aware they the WB and Gaza were occupied territories. The fundamental postulate of the regime of belligerent occupation is that it is a temporary state of affairs during which the occupant is prohibited from annexing the occupied territory. The occupant is vested only with temporary powers of administration and does not possess sovereignty over the territory. See Ottoman debt arbitration (1925)… Read more »

Tali Kolesov Har-Oz and Ori Pomson

Wow, I did not expect a couple of comments would prompt such response. Considering many of the subjects have been discussed by others, a few small points shall suffice.   Concerning a prolonged occupation’s continuing legality, the argument concerning necessity and proportionality could be very true where the previous sovereign lawfully had title to the territory. Yet, as Hersch Lauterpacht (2 Oppenheim’s International Law 217-220 (7th ed. 1952)) opined, rights obtained by a State in armed conflict otherwise protected in IHL (a contrario to those norms of a humanitarian character) are not protected if obtained through aggression. In casu, Israel’s armed conflict with Jordan should have indeed completely conformed to the principles of necessity and proportionality, including vis-à-vis the capture of territories, were all of Jordan’s claimed rights obtained legally. However, Israel could not have been expected to return the territory it subsequently held to Jordan, as the latter lacked rights to it having obtained it through aggression. Thus, a legal void exists, which would necessitate State consent to create legally binding obligations for filling in.   The Eilat-settlement/occupation analogy is incorrect as it confuses two different regimes of law. As evident from the Eastern Greenland case, international recognition is… Read more »

Kevin Jon Heller

Israeli,

As Carl points out, that is precisely the opposite of what I said. IHL applies to all occupations, legal or illegal. The illegality of an occupation under the JAB does not render anything illegal under IHL; the NMTs specifically held as much after WW II with regard to the Nazi occupation of the Eastern Territories. I discuss those holdings in my book.

Kevin Jon Heller

Israeli, In order: 1. Jus ad bellum rules apply to all uses of force. If an occupation’s continuing nature is justified as self-defence under the JAB, it must continually satisfy the JAB principles of proportionality and necessity.  2. Proportionality under the JAB is different than proportionality under IHL. Nothing I said indicates otherwise. 3. Occupations are not permitted to be permanent. Once the legal justification for an occupation ends (and self-defence is really the only justification available these days), the occupation must end. See 1. 4. Now it is you who are blurring the JAB and IHL. GC IV governs the conduct of occupation; it says nothing about whether the occupation is legitimate. See my previous comment. 5. The intermittent armed attacks on Israel from West Bank clearly give rise to a right of self-defence, but continuing a massive occupation is just as clearly neither a necessary nor proportionate response to those armed attacks. The occupation is thus illegal, as every state in the world other than Israel acknowledges, including the US. 6. By all means, cite the “resounding scholarly criticism” of Wall decision. You won’t find many scholars outside of Israel and its right-wing supporters who think it is… Read more »

Kevin Jon Heller

Unlike Carl, I am not completely convinced that Gaza is still occupied by Israel. It’s very close, with good arguments on both sides. Two points, though:

1. if it is not, then Israel’s blockade of Gaza is illegal and an act of war against the flag state of any ship interdicted by Israel (such as the Mavi Marmara). Blockade is only permissible in international armed conflict (see the Civil War cases in the US), and in the absence of occupation the only possible conflict between Israel and Gaza is non-international.

2. It is well-established (following the NMTs after WW II) that a state can exercise effective control over territory without having boots on the ground as long as it has the ability to physically (re-)occupy the territory at any time. That is the strongest argument for why Israel still occupies Gaza. (Though, again, I’m on the fence about that issue.)

Hostage
Hostage

Re: former ICJ president Stephen M. Schwebel – of the world’s most highly respected international law scholars (more likely is the explanation that my opinion is simply conservative and absent in most of today’s law faculties).   I noticed that after Israel formally annexed Jerusalem and the Golan Heights, and started building civilian settlements, that both Lauterpacht and Schwebel stopped writing editorials about the subject.   “What Weight to conquest” was originally published in The American Journal of International Law, Vol. 64, No. 2 (Apr., 1970), pp. 344-347. It was clearly labeled as an “Editorial Comment”. ASIL Editorial Comments are short unrefereed articles about current events. See 3. Editorial Comments and 4. Referees in “The American Society of International Law’s First Century: 1906-2006″, By Frederic L. Kirgis & The American Society of International Law, Martinus Nijhoff Publishers, 2006, ISBN: 9004150684   A few months after the editorial appeared, the ILC finished work on its codification of the rules of law contained in the UN Charter. Shortly after that, the General Assembly incorporated them in the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970″… Read more »

Hostage
Hostage

Re: Hostage: As Caroline says anticipatory self-defense is permitted when the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” On the eve of War in 1967, there were amassed almost 500,000 Arab soldiers from 5 Arab armies on Israel’s borders. It is well documented that war was inevitable. I always find it amusing that the common theme amongst Israel’s detractors is that we never seem to have the right to self-defense. I wonder why that is.   Maybe it’s because: “The Egyptian army concentrations in the Sinai approaches did not prove that Nasser was really about to attack us. We must be honest with ourselves. We decided to attack him.” – Address by Prime Minister Begin at the National Defense College- 8 August 1982 In his autobiography, Rabin said the IDF GHQ Intelligence assessment was that Israel was facing a repetition of Operation Rotem (1960) – the last time that the entire Egyptian Army had been deployed in the Sinai and there had been no war. The IAF Chief of Staff agreed with the assessment. In 1960 Israel had been caught with its pants down, when the Egyptian Army deployed… Read more »

carl meyer
carl meyer

Ori, 1) Hersch Lauterpacht pointed out that “the fact of the absence of formally binding force does not exhaust the actual significance of an advisory opinion”. Be careful of not being selective also on the Lauterpachs. In the Wall advisory opinion, the ICJ affirmed that self-determination is a right erga omnes, whose realisation all UN member States, as well as all States parties to the International Covenants on human rights, have the duty to promote. Furthermore, Israel’s rejection of the applicability of human rights law in the OPT has been authoritatively rejected by the ICJ and by the wider international community. H. Lauterpacht, ‘The Security Council and the jurisdiction of the International Court of Justice’, in E. Lauterpacht (ed.), International Law: Being the Collected Papers of Hersch Lauterpacht. Vol. V: Disputes, War and Neutrality (Cambridge: Cambridge University Press, 2004), p. 224 at p. 228. 2) As for the “the argument concerning necessity and proportionality could be very true where the previous sovereign lawfully had title to the territory”: The ‘missing reversioner’ argument was rejected by the ICJ; it ruled that the Convention applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that… Read more »

Kevin Jon Heller

To all,

I just want to commend the civil tone and the erudition in the comments to this post (and other recent ones). It’s unusual and refreshing. And I want to apologize to Ori for branding his views ultra-right; although references to Judea and Samaria are a pet peeve of mine, I should not have uncritically assumed he was simply parroting the ultra-right company line.