Wednesday, August 06, 2014

  • Wednesday, August 06, 2014
  • Elder of Ziyon
I received some tweets lately that indicated that Israel does not have the right to self defense under international law.

Yes, really.

One of the source-texts is by John Dugard, former U.N. special rapporteur on human rights in the Palestinian Arab territories, writing in Al Jazeera America. His main argument is that since (he claims) Israel is occupying Gaza, therefore the normal laws of self-defense in international law do not apply. Moreover, he says that Hamas rockets aimed at Israeli civilians are perfectly legal, calling them "acts of resistance of an occupied people."

That last fact should be enough to prove that Dugard has no interest in either international law but only in finding bizarre justifications for terror attacks. However, even within the narrower framework of international law, Dugard reveals himself to be a fraud.

He states:
But the status of Gaza is clear. It is an occupied territory — part of the occupied Palestinian territory. In 2005 Israel withdrew its settlers and the Israel Defense Forces from Gaza, but it continues to retain control of it, not only through intermittent incursions into and regular shelling of the territory but also by effectively controlling the land crossings into Gaza, its airspace and territorial waters and its population registry, which determines who may leave and enter.

Effective control is the test for occupation. The International Court of Justice recently confirmed this in a dispute between the Democratic Republic of the Congo and Uganda. The physical presence of Israel in Gaza is not necessary provided it retains effective control and authority over the territory by other means. Modern technology now permits effective control from outside the occupied territory, and this is what Israel has established.
The ICJ, in defining "effective control" in the Congo vs. Uganda case, says the exact opposite of what Dugard is claiming!

The ruling stated:
[T]o reach a conclusion as to whether a State … is an ‘occupying Power’ … the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. … armed forces [must] not only be stationed in particular locations but also substitute[] their own authority… .”
The test is very simple. If Israel cannot substitute its authority for Hamas, it is not an occupying power. If it cannot change Gaza's government, or court system, or police force, then it is not an occupying power. Occupation only extends to areas where they can exert authority, and in Gaza, authority is exclusive to Hamas.

(For further proof, the Hague Conventions that define occupation give the occupant the obligation to "take all the measures in his power to restore, and ensure, as far as possible, public order and safety." It is obvious that the occupier must have that ability in order to be able to have that obligation.)

This is not the first time this lie has been spread. The UN Human Rights Council tried to push the exact same lie - using the same bogus source - in a 2008 document, as I demonstrated at the time.  They rely on the fact practically no one will actually look up the citation and find that they are lying. Chances are, Dugard was behind that citation as well.

Dugard is not only an immoral supporter of terror, but a proven liar in the very subject that he claims expertise in. His own proof-text of Gaza being occupied proves that Gaza is not occupied.

Since Dugard is now an emeritus professor of international law at the University of Leiden in the Netherlands, perhaps people might want to ask the school if they know that one of their faculty fabricates source material?

By the way, it is interesting to see how the ICRC defined "occupation" before Israel withdrew from Gaza.
The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.

The question of "control" calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC's Commentary to the Fourth Geneva Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.

...The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues.

A transfer of authority to a local government re-establishing the full and free exercise of sovereignty will normally end the state of occupation, if the government agrees to the continued presence of foreign troops on its territory. However, the law of occupation may become applicable again if the situation on the ground changes, that is to say, if the territory again becomes "actually placed under the authority of the hostile army" (H R, art. 42) – in other words, under the control of foreign troops without the consent of the local authorities.
Compare how it has changed that definition since then to shoe-horn Israel into a definition as an occupier - something they wouldn't have done for any other country.

The mention of military manuals is important, because much of international law is sometimes derived from a consensus in such manuals. As far as I know, no military manual defines anything close to Israel's relationship to Gaza as being an occupation.

The only actual legal ruling that has ever occurred regarding whether Gaza is occupied comes from Israel's quite liberal Supreme Court, which stated:
[S]ince September 2005, Israel no longer has effective control over the events in the Gaza strip. The military government that had applied to that area was annulled in a government decision, and Israeli soldiers are not in the area on a permanent basis, nor are they managing affairs there. In such circumstances, the State of Israel does not have a general duty to look after the welfare of the residents of the strip or to maintain public order within the Gaza Strip pursuant to the entirety of the Law of Belligerent Occupation in International Law. Nor does Israel have effective capability, in its present status, to enforce order and manage civilian life in the Gaza Strip.
No wonder Israel-haters have to resort to sui generis arguments and fake citations to pretend that Gaza is occupied. They have no legal leg to stand on.



EoZTV Podcast

Podcast URL

Subscribe in podnovaSubscribe with FeedlyAdd to netvibes
addtomyyahoo4Subscribe with SubToMe

search eoz

comments

Speaking

follow me

Follow by Email

translate

Share on Whatsapp


E-Book

For $18 donation








Sample Text

EoZ's Most Popular Posts Ever

Hasbys!

Elder of Ziyon - حـكـيـم صـهـيـون



This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 14 years and 30,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.

Donate!

Donate to fight for Israel!

Monthly subscription:
Payment options


One time donation:

subscribe via email

Follow EoZ on Twitter!

Tweets

Compliments

The Jerusalem Report:"A seemingly indefatigable one-man operation, armed only with a computer, chutzpa and stamina."

Algemeiner: "Fiercely intelligent and erudite"

Omri: "Elder is one of the best established and most respected members of the jblogosphere..."
Atheist Jew:"Elder of Ziyon probably had the greatest impression on me..."
Soccer Dad: "He undertakes the important task of making sure that his readers learn from history."
AbbaGav: "A truly exceptional blog..."
Judeopundit: "[A] venerable blog-pioneer and beloved patriarchal figure...his blog is indispensable."
Oleh Musings: "The most comprehensive Zionist blog I have seen."
Carl in Jerusalem: "...probably the most under-recognized blog in the JBlogsphere as far as I am concerned."
Aussie Dave: "King of the auto-translation."
The Israel Situation:The Elder manages to write so many great, investigative posts that I am often looking to him for important news on the PalArab (his term for Palestinian Arab) side of things."
Tikun Olam: "Either you are carelessly ignorant or a willful liar and distorter of the truth. Either way, it makes you one mean SOB."
Mondoweiss commenter: "For virulent pro-Zionism (and plain straightforward lies of course) there is nothing much to beat it."
Didi Remez: "Leading wingnut"

Interesting Blogs

Categories

Abbas liar Academic fraud administrivia al-Qaeda algeria American Jews Amnesty analysis anti-semitism antisemitism apartheid arab refugees Arafat archaeology Ari Fuld art ASHREI B'tselem bahrain Balfour bbc BDS BDSFail Bedouin Beitunia beoz book review Brant Rosen breaking the silence Campus antisemitism Cardozo Chakindas Chanukah Christians circumcision Clark Kent coexistence Community Standards conspiracy theories Cyprus Daled Amos Daphne Anson David Applebaum Davis report DCI-P Divest This double standards Egypt Elder gets results ElderToons Electronic Intifada Embassy EoZ Trump symposium eoz-symposium EoZNews eoztv Erekat Erekat lung transplant EU Euro-Mid Observer European antisemitism Facebook jail Fake Civilians 2014 Farrakhan Fatah featured Features fisking flotilla Forest Rain Forward free gaza freedom of press palestinian style future martyr Gary Spedding gaza Gaza Platform George Galloway George Soros German Jewry gideon levy gilad shalit gisha Goldstone Report Good news Grapel Guardian guest post gunness Haaretz Hadassah hamas Hamas war crimes Hananya Naftali hasbara Hasby 2014 Hasby 2016 Hasby 2018 hate speech Hebron helen thomas hezbollah history Hizballah Holocaust Holocaust denial honor killing HRW Human Rights Humanitarian crisis humor huor Hypocrisy ICRC IDF Ilan Pappe impossible peace incitement indigenous Indonesia international law intransigence iran Iraq Islamic Judeophobia Islamism Israel Loves America Israeli culture Israeli high-tech J Street jabalya jeremy bowen Jerusalem jewish fiction Jewish Voice for Peace jihad jimmy carter John Kerry jokes jonathan cook Jordan Joseph Massad Juan Cole Judaism Judea-Samaria Judean Rose Kairos Karl Vick Keith Ellison ken roth khalid amayreh Khaybar Lebanon leftists Linda Sarsour Linkdump lumish mahmoud zahar Malaysia max blumenthal Mazen Adi McGraw-Hill media bias Methodist Michael Ross Miftah Missionaries moderate Islam Mohammed Assaf Mondoweiss moonbats Morocco Mudar Zahran music Muslim Brotherhood Nakba Nan Greer Nation of Islam Natural gas Nazi Netanyahu News nftp NGO NIF Noah Phillips norpac NYT Occupation offbeat Omar Barghouti Only in Israel Opinion oxfam PA corruption PalArab lies Palestine Papers pallywood pchr PCUSA Peace Now Peter Beinart Petra MB poetry Poland poll Poster Preoccupied Prisoners propaganda Proud to be Zionist Puar Purim purimshpiel Putin Qaradawi Qassam calendar Quora Rafah Ray Hanania real liberals reference Richard Falk Richard Silverstein Right of return Rivkah Lambert Adler Robert Werdine rogel alpher roger cohen roger waters Rutgers Saeb Erekat Saudi Arabia saudi vice self-death self-death palestinians settlements sex crimes SFSU shechita sheikh tamimi Shelly Yachimovich Shujaiyeh Simchat Torah Simona Sharoni SodaStream South Africa Speech stamps Superman Syria Tarabin Temple Mount Terrorism This is Zionism Thomas Friedman TOI Trump Tunisia Turkey UCI UK UN UNDP unesco unhrc UNICEF United Arab Emirates Unity unrwa UNRWA hate unrwa reports UNRWA-USA unwra Varda Vic Rosenthal Washington wikileaks work accident X-washing Y. Ben-David Yemen YMikarov zahran Ziesel zionist attack zoo Zvi

Blog Archive