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Middle East

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

The Article II “Humanitarian Intervention” War Power

by Julian Ku

Assuming there really was authorization from the Iraqi government, I don’t have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action.

Jack Goldsmith goes through the domestic legal bases for action here: the 2001 AUMF against Al Qaeda, the 2002 AUMF to conduct hostilities in Iraq, and the President’s inherent power under Article II of the U.S. Constitution. I agree with Jack that, for political reasons, the Administration seems to be relying on the President’s inherent powers under Article II of the Constitution rather than on either of the statutory authorizations passed by Congress.  But even under Article II, Presidents have usually cited rationales such as the need to act quickly to protect U.S. citizens and their property or to prevent an imminent attack on the U.S or a treaty ally, or a threat to U.S. national security.

But President Obama does not cite any of these reasons in his explanation of why he is authorizing airstrikes to prevent the deaths of the Iraqi civilians trapped in a mountain region.  Instead, he cited the need to “prevent a potential act of genocide” in his remarks yesterday. So it turns out that Article II also can be invoked for a purely humanitarian intervention where no U.S. citizens or property are threatened, and the national security interest is not cited.  While I do think there is a very plausible national security rationale for these airstrikes, it is worth noting that President Obama does not cite national security directly in his remarks.  When one looks back at his similar rationale for Article II-based airstrikes in Libya, I think one of President Obama’s legacies will be a new reading of Article II that will allow future presidents to use military force for humanitarian reasons without the authorization of Congress.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Guest Post: Effective Control and Accepting ICC Jurisdiction

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time.

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians’, the Court rejected an attempted accession.

Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. A main motive for the last year’s General Assembly’s vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, “political” action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory.

Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. (more…)

Guest Post: The Use of Human Shields and International Criminal Law

by Tali Kolesov Har-Oz and Ori Pomson

[Ori Pomson and Tali Kolesov Har-Oz are both teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty.] 

Introduction

The recent hostilities between Israel and Hamas have attracted a great deal of media and public attention. However, while a number of media reports have alluded to the legality vel non of certain actions committed by both sides, they have thus far contained little in-depth legal analysis.

One practice that has attracted significant attention is the purported use of “human shields” by Hamas. This post will present a legal analysis of such practices, and examine the possible implications of that analysis on the current situation in Gaza. Although it would be interesting to examine as well the possible criminal responsibility for statements endorsing or encouraging this conduct, that question will not be examined in the framework of this post.

The Use of Human Shields under International Law

In international humanitarian law (IHL), the term “human shields” concerns “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” The use of human shields both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs) is considered a violation of customary international law (von Leeb, 15 ILR 395, n.1; ICRC, Rule 97). Treaty law directly prohibits such practice in IACs (GCIV 28; API, art. 51(7)) and indirectly in NIACs (e.g., CA 3 with Category ‘C’ Claims, 109 ILR 441).

Post-Second World War tribunals considered the use of human shields – focusing on POWs – to be a war crime (Student, 118-120; von Leeb,15 ILR 395, n.1). This was codified in the Rome Statute, which explicitly prohibits the use of human shields in IACs in art. 8(2)(xxiii), criminalizing utilization of “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” There lacks such a provision concerning the customary prohibition of the use of human shields in NIACs. Yet, considering the famous Tadić dicta that the dichotomy between IAC and NIAC crimes “should gradually lose its weight” and that “the current trend has been to abolish the distinction and to have simply one corpus of law applicable to all conflicts,” it could be argued that the analysis of Rome Statute’s provision concerning human shields in IACs is relevant to the analysis of the customary prohibition of the use of human shields in NIACs as well.

The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court’s Elements of Crimes document are as follows…

Emerging Voices: The Preliminary Examinations in Iraq: A Net Loss for the ICC’s Political Capital

by David Benger

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.]

The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.

(more…)

Joint Declaration Charging Legal Violations in Israel’s Gaza Offensive

by Julian Ku

A group of international law and criminal law scholars have issued a joint declaration denouncing Israel’s Gaza offensive for causing “grave violations…of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population.” It is the latest front in the public debate over legal violations arising out of the Gaza conflict, some of which we have noted here at Opinio Juris (the legality of denying electricity to Gaza and the legal effect of Israeli warnings to civilians).Personally, I don’t think there is enough evidence in UN and media reports to support the Joint Declaration’s main claim: that Israel is intentionally trying to target, terrorize, and collectively punish the civilian population of Gaza. Rather, my view is that Israel is conducting an aggressive military operation which is resulting in civilian deaths, and that those deaths may or may not be legal violations of the law of armed conflict (it is hard to say based on media reports at this time).   But I am not convinced (as the Joint Declaration seems to allege) that killing civilians is actually the basic intention and goal of the Israeli government.

Still, the Gaza conflict has plainly drawn the attention of the global community of international and criminal law scholars. I think these kinds of statements will have, and are already having, an impact on world opinion and the Israeli government. So it is worth taking a look.

Guest Post: Israel’s Use of Law and Warnings in Gaza

by Janina Dill

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.]

In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel’s use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.

But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn. (more…)

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…