Who's the Occupier?

The language of occupation is an oft-wielded weapon against Israel. Those who use it have interests at odds with the existence of the Jewish State. They may refer to Israel as an “illegal occupier,” and the Jewish State’s presence in the Middle East as an “illegal occupation.” The IDF, Israel’s military, is variously known by the anti-Israel media as “occupying forces," the “military occupation,” and even Israeli Occupation Forces (IOF). Judea and Samaria, and sometimes all of Jerusalem, are referred to as “occupied territories.” We also see “OPT," shorthand for “Occupied Palestinian Territories,” in lists of countries we must choose from when filling out online forms or making purchases.

The purpose of this language is to negate the right of the Jewish State to exist on land that Arabs assert belongs to them. And since Arabs assert that all of Israel is on land that belongs to them, all of Israel is, according to this narrative, illegally occupied by the Jewish people, or put more simply, Israel is illegal, and therefore, has no right to exist. To date, there is no part of the current State of Israel in which Arabs would accept a Jewish state. Everywhere that Israel is, it is an occupier.

But the word “occupier” is more than just a vehicle for negation. There’s an unsavory quality to the word, suggesting that the entity in question is a usurper. Meaning: hey, that land belongs to someone else!

And of course, if Israel is an “occupier” and the land belongs to someone else, that makes Israel a thief. And the someone else must be Arabs.

The new media editor of the Times of Israel says that Ahed Tamimi's family lives under occupation. But the Tamimi Family lives in Nabi Saleh, which is governed by the Palestinian Authority. 

Having painted Israel in this hideous light, the image of the Jewish State evolves into something shady and repellent. Using the language of occupation, in other words, serves not only to state your politics on the subject of Israel, it tells others that you have an actual dislike of Israel: that Israel disgusts you and is seen by you as morally corrupt, a thief that stole land that belongs to others—others with brown skin!

The language of occupation suggests, in fact, that you’ve made a moral choice regarding the State of Israel. That you believe Jews have no right to their ancient and indigenous territories, since some Arabs were born there in the 19^th or 20^th centuries. You believe this latter day history cancels out Jewish rights. And certainly it cancels out the bible, which is describing really old stuff, if any of it happened at all. Which you doubt.

Some people who use occupation language use it in an “ethical” sense. They aren’t talking about mandates and borders. They are talking about one people ruling over another people by force. They are saying that Arabs don’t wish to be ruled by Jews, therefore Arabs who live under Jewish rule are “occupied” and live under “occupation.” And here’s where it really gets nutty. Because the protests on the Gaza border are supposedly against Israeli “occupation.”


Except that Israel doesn’t rule Gaza. Hamas rules Gaza. Israel left Gaza, lock, stock and barrel, in 2005. The IDF is not in Gaza, therefore there are no “occupation forces” in Gaza. Hence, Gaza is not “occupied.” Not even a little bit.

What then are the people of Gaza, protesting? That our soldiers are on their border to prevent them from killing us? Is this the meaning of occupation? The United States has soldiers along its border with Canada. Does that mean that the United States is occupying Canada?

Is everything occupation? Or is it only occupation when it concerns the “thieving” Jews?

From a legal standpoint, of course, the entire subject of occupation remains murky. At the very least, clarification is in order. We know that when Jordan acquired Judea and Samaria and parts of Jerusalem in 1948, this was not considered a legal occupation by the nations of the world. Only the UK and Pakistan deemed Jordan’s occupation of these territories a legal one, representing a minority opinion. You’d think that if Jordan was the illegal occupier of Judea, Samaria, and Jerusalem—a thief, and a usurper of another’s land—that would make the Jews the ones they stole from. Unless we’re missing something, here.

Which we’re not. Because the truth is that the Mandate for Palestine remains legally binding until today. And the Mandate for Palestine sets forth the right of the Jewish people to settle anywhere west of the Jordan River. Which is why Jordan was labeled an illegal occupier by the nations of the world.

And get this straight: it was never about 1967. Take it from Mahmoud Abbas, leader of the pack:

"Israel, since 1948, has persisted with its contempt for international legitimacy by violating United Nations General Assembly resolution 181 (II), the partition resolution, which called for the establishment of two states on the historic land of Palestine according to a specific partition plan. Israeli forces seized more land than that allotted to Israel, constituting a grave breach of Articles 39, 41 and 42 of the United Nations Charter.”

Do you see anything about 1967 borders, there? Nope. He’s talking about Partition. Which was just a recommendation. Which his people rejected.

Let’s face it: the Arabs made out big time after WWI when they divvied out the bits and pieces that make up the Middle East. There are 22 states where Arabic is the national language and Islam the national religion. Their culture holds sway all over the Middle East.

Not to mention the fact that the Arabs could have stayed right where they were in Israel as a privileged minority. Israel is a democracy. It would have been fine. But since they up and left, the 22 states comprising their brethren should have absorbed them and poof! No more refugee problem. It’s what we did with the Jews THEY threw out of their countries. It’s called: “population exchange.”

Look, they made a gambit for the Mandate. They lost. We won. Finished. Time to man up and be a graceful loser.

Implying that Jews are thieves, having taken land that belongs to others, or telling Jews that they cannot build homes within the territory that comprises the Mandate for Palestine, is ugly and antisemitic, as it flies in the face of unanimously accepted international law. Professor Eugene V. Rostow, an expert in international law who helped draft resolution 242, explained that having affirmed the Mandate with the right to Jewish settlement anywhere between the Jordan River and the Mediterranean Sea, the world essentially negated any future Arab claims to the territory.

“Under international law, neither Jordan nor the Palestinian Arab ‘people’ of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories. Jordan cannot base a claim to the territory on its military occupation and administration of the West Bank between 1948 and 1967, after the Arab war of aggression in 1948. Neither can it base a claim on its attempt to annex the territory in 1950. The annexation was not widely recognized and has been withdrawn. By protecting Arab "civil and religious rights," the mandate implicitly denies Arab claims to national political rights in the area in favor of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. . . (emphasis added)

“There remains,” said Rostow, “simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent ‘natural law’ claim to the area. Neither customary international law nor the United Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own. International law rests on the altogether different principle of the sovereign equality of states. And nearly every state inherited from history contains more than one ethnic, religious, or cultural group: the French in Quebec, for example; the Basques in France and Spain; the Flemish in Belgium; the Kurds in Turkey, Iran, and Iraq; and so on.

“Therefore, it is a rule essential to international peace that claims of national self-determination be asserted only through peaceful means. The international use of force to vindicate such claims is and must be strictly forbidden by the United Nations Charter,” insisted Rostow, making the violent Gaza protests an obscene mockery, considering the people of Gaza were granted the right to self-determination, unilaterally, by Israel, in 2005.

The Lodge-Fish Resolution affirming the Jewish right to settlement in the Mandate for Palestine was passed unanimously and ratified many times over by bodies in the U.S. and U.K.

The late Howard Grief, an advisor to Israel on international law, suggested that Article 80 of the UN Charter, once known unofficially as the Jewish People’s clause, stipulates that the UN may not transfer any part of Palestine to any non-Jewish entity. That would include the Palestinian Authority and Hamas, for instance. Article 80, in fact, gives Jews the right to build settlements anywhere they wish from west of the Jordan River to the Mediterranean Sea.

Which makes one wonder about the legality of Israeli Jews being barred from “Area A,” which, after all, is west of the Jordan River. Who or what is an occupier? And who is right at home?

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ICRC shows again how inconsistent its definition of "occupation" is

Yesterday's post about the Red Crescent-branded ambulances being part of the Hamas terror convoy brought a reaction from Juan-Pedro Schaerer, ICRC Head of delegation for Israel and the Occupied Territories, on Twitter.

these ambulances do not belong to the PRCS [Palestinian Red Cross Society]

I asked:

So Hamas is misusing the Red Crescent symbol? Is anything being done to go after them?

He responded:

not so simple responsibility for authorising use of RC emblems rests with State & use regulated by domestic law... As far as I remenber there is no law in #Palestine for the protection of the emblem (see here.) 

He appears to be right. In previous cases of the Red Cross complaining about the misuse of its symbol, it was the national Red Cross societies that lodged the complaints, not the ICRC. Even so, since the PA Red Crescent is not likely to lodge its own complaint, it would seem to behoove the ICRC to publicly dissociate itself from Hamas' use of these ambulances with their logo.

Schaerer also implies that these Hamas ambulances, by not being authorized, would lose their protection in any military campaign. I asked him if he would agree, but he has not yet answered.

The document he referred me to, however, has a very interesting section on how the Red Cross/Red Crescent symbol should be used in occupied territories.

Last month, I pointed out that the ICRC's definition of Gaza as being "occupied" made no sense and contradicted even the defintions of the international legal scholars gathered by the ICRC itself. The same Juan-Pedro Schaerer responded by saying that the ICRC uses a "functional theory" of occupation, a position that is patently absurd.

Briefly, the "functional theory" states that occupation law applies even when the occupation is only partial, and it applies to those areas that it is possible to be applied. So the definition of "occupation" is no longer "boots on the ground" and "effective control" of the area, but...something else that is not very well defined. Needless to say, this "functional theory" is only applied to Israel. And needless to say, this vague theory allows people to twist international law against Israel because now organizations like the ICRC can define what parts of Gaza Israel is responsible for and what parts aren't.

This Red Cross document shows, again, how that theory makes no sense.

It says:

If the competent body of the Occupied State is still functioning, it should be allowed by the Occupying Power to continue granting official recognition and the authorization to display the emblem. If it is no longer functioning and cannot grant official recognition, the Occupying Power has to substitute itself for the authorities of the Occupied State and issue the documents granting recognition and the right to display the emblem, to civilian hospitals (in particular, new ones), and to civilian medical units, personnel and transports.103 The Occupying Power is ultimately responsible for ensuring that recognition and authorization to display the emblem are properly granted,104 and for issuing identity cards and armlets to the staff of civilian hospitals.105 The Occupying Power should grant official recognition and authorization to display the emblem only to the hospitals, staff and medical transports that fulfil the conditions laid down in Articles 18, 20 and 21 of GC IV.106

The note 104 says:

"the distinctive emblem should not be affixed without the consent of the competent authority of this Party (which may also be an adverse Party for that matter, particularly in the case of occupied territory)."

The document makes it appear that Israel would be "ultimately responsible" for the proper use of the symbol if is is considered the occupying power of Gaza. This is just one absurdity with the unique "functional theory " of occupation put forth by the ICRC in regards to Israel.

Schaerer answered with the same "functional" definition:

Israel continues to be bound by occ.law Gaza but since the control exercised today is limited, so are the responsibilities.

I don't know how that jives with being "ultimately responsible." That wording appears to me to blow apart the "functional theory" because if Israel is the occupier, as ICRC claims, then it is "ultimately responsible" no matter whether the occupation is traditional or "functional." Obviously in this case Israel cannot be considered responsible, which means it cannot be considered the occupier.

I responded

P. 45 says occupier is "ultimately responsible" for use of symbol. You are saying Israel isn't, but is still occupier?

He didn't answer that either.

One additional point: The ICRC considers Israel responsible for the hospitals in Gaza by insisting that their being stocked with medicines (for example) is a responsibility under occupation law. So according to this theory, the hospitals are under Israeli effective control but the ambulances are not?

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When are illegal settlements legal?

There are two kinds of settlements in Judea and Samaria: the ones that are legal under Israeli law, and the ones that are not.

The illegal settlements, often called "outposts" because they are often tiny, are, under international law - legal!

Let me explain.

The entire reason any settlements are considered "illegal" under international law is because of a tortured reading of the Fourth Geneva Conventions, Article 49, paragraph 6:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The argument that Jewish settlements are illegal comes from bizarre idea that people who choose voluntarily to live there are somehow being "transferred" by Israel. The arguments for that are very strained, to say the least. They are usually centered on how Israel supports the settlements it considers legal by building infrastructure or otherwise making life there any easier for its citizens, as if that fits the definition of "transfer."

But the people who choose to break Israeli law and build their own illegal settlements cannot by any stretch of interpreting Geneva be considered to be "transferred" - their decision to move is purely voluntary and not encouraged at all by the Israeli government.

Which means that these outposts that are illegal under Israeli law are legal under international law - no matter how you try to misinterpret Geneva Art. 49!

(This is all moot, despite all the NGOs that say that settlements violate Geneva. For an in-depth look at Article 49 and why it clearly doesn't apply to Jewish settlements, see here for the travaux préparatoires.)

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A legal scholar details ICRC bias against Israel over "occupation" of Gaza

Last week I wrote a post about how the International Committee of the Red Cross was, in my opinion, hypocritical for ignoring the opinions of experts it gathered to discuss the definition of "occupation" and choosing instead to consider Gaza to still be occupied, against all normative legal opinions.

I received two responses from Juan-Pedro Schaerer, ICRC Head of Delegation, Israel and the Occupied Territories, in the comments. The first one:

While this article provides a summary of an important expert's workshop, the author ignores essential facts used by the ICRC when applying of the Law of Occupation to Gaza.

The ICRC closely monitors developments in the Gaza Strip, since facts on the ground are crucial to determining whether the elements of effective control required for occupation continue to be met. While it cannot be said that the Gaza Strip is a "classic" situation of occupation, Israel has not entirely relinquished its effective control over the Strip. This control includes amongst other the almost total control over the borders of the Gaza Strip (except for the border with Egypt), the control over the airspace and the entire coast line, the control over who can move out of the Gaza Strip, the control of the population register, control over all the items that can be imported and exported from the Strip and the control over a no-go zone along the Gaza fence inside the Gaza Strip. These facts and others allow ICRC to determine that Israel exercises effective control and therefore remains bound by the law of occupation in the case of Gaza.

This article ignores such essential facts and concludes in a facile way that the ICRC is hypocritical, biased and politically-motivated. The ICRC has no doubt that much of the hardship caused to the 1.7 million people living in Gaza would be reduced if international humanitarian law was fully understood and respected. ICRC works in a neutral and impartial way to promote a better understanding of international humanitarian law, and to alleviate the suffering caused by those who fail to respect it.

Schaerer Juan Pedro
ICRC Head of Delegation Israel and the Occupied Territories

And a second one, after I commented:

In response to your comments and for the purpose of clarification, I wish to emphasize that the ICRC does not maintain that Israel has retained all elements of authority and governmental functions in Gaza. Rather, our position is that even after the withdrawal of its forces in 2005 Israel continues to exercise effective control over certain key elements of authority in Gaza and therefore remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained. This reflects a functional approach to the law of occupation that emanates from the underlying purpose and rationale of that body of law. In simplified terms it means that to the extent that an occupying power retains control of key functions and authorities in the occupied territory it also remains bound by the relevant provisions of the law of occupation. Where there is control there is responsibility. For an elaboration on this see T. Ferraro, Determining the beginning and end of an occupation under international humanitarian law, 94 IRRC 133, 159 (aviliable online here:)

Professor Abraham (Avi) Bell, of the University of San Diego School of Law and at Bar-Ilan University,  an expert on international law who has written extensively on this very issue, graciously offered to comment on Schaerer's responses. His answer is much better than the one I planned to write. (Emphasis mine.)

The argument first used by Mr. Schaerer was taken near verbatim from one invented by Gisha, a political pro-Palestinian NGO. It is not an argument that has any basis in general international law. 

Mr. Schaerer’s argument consisted of a list of factual assertions, some of which are obviously correct but irrelevant (yes, Israel controls Israel’s own land borders with Gaza), and some of which are obviously both false and irrelevant (no, Israel does not “control … all the items that can be imported and exported from the Strip” – Gaza imports and exports goods through its land borders with Egypt).

None of the factual assertions relate to the generally understood legal criteria for effective control as understood in international law, as ICRC officials would readily acknowledge if Israel were not in the dock.

Is there any other case in recorded history where the “facts” offered by Mr. Schaerer have been interpreted as sufficient “effective control” to create a belligerent occupation notwithstanding the absence of (1) boots on the ground and (2) any administration by the purported “occupier”?

The answer, of course, is no.

It is curious that Mr. Schaerer didn’t even try to analyze how the generally applicable test for belligerent occupation would apply to Israel and Gaza. Instead, he said that a set of irrelevant facts “allow ICRC to determine that Israel exercises effective control.” Well, sure. ICRC is “allowed” to make any determination it wants. It is “allowed” to determine Spain occupies Portugal, if it wants.

Mr. Schaerer’s “clarification” is even more mystifying. He appears to be saying that the ICRC acknowledges that Gaza is not occupied by Israel, but that the ICRC claims that Israel can still be bound by some of the rules of belligerent occupation due to legally insufficient effective control. This is a novel theory that was advanced by Gisha after its earlier arguments that Israel “occupies” Gaza found no support among legal scholars not pre-committed to the Palestinian side. Needless to say, Gisha’s new theory has no basis in the text of any treaties, and it has never been applied against any other country in recorded history. In other words, it is a brand-new anti-Israel theory aimed to create legal duties that restrict the conduct of the Jewish state, but not of any other state in the world.

There are several additional oddities in Mr. Schaerer’s clarification. First, it is a lie. The ICRC continues to treat Gaza as belligerently occupied territory (see, e.g., here.) I cannot find a single public statement of the ICRC that acknowledges that Gaza is not actually belligerently occupied by Israel, but rather that Israel is bound by some laws of occupation under the “functional” theory even though Gaza is not occupied. Even Mr. Schaerer’s fails to acknowledge this openly in his “clarification.” Instead, Schaerer’s characterizes the ICRC position in a disingenuous manner. Schaerer claims that the ICRC restricts itself to asserting that “Israel ... remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained.” This is, of course, a flat-out lie. The ICRC continues to assert that Israel is bound by the law of occupation well beyond any “functional limits of the competences [Israel] has retained.” For instance, the ICRC continues to blame Israel for the failures of Hamas’ health care system in Gaza, the lack of variety of goods exported from Egypt to Gaza, and numerous other “competences” that have nothing to do with Israel.

Second, not only does Mr. Schaerer refuse to acknowledge the nature of the new theory he is advancing, he pretends that it is existing and well-known international law. The disingenuousness of Mr. Schaerer’s claims on this score can be seen by looking at his citation of an article by an ICRC advisor that Mr. Schaerer claims supports the bizarre anti-Israel theory used by the ICRC. The article is written by a senior legal advisor at the ICRC, so it naturally attempts to support the ICRC’s position. But ironically, the article does little more than show just how baseless the ICRC’s anti-Israel position is. Mr. Schaerer claims the article shows that "[w]here there is control there is responsibility" and Israel has "control" according to the ICRC, and it must therefore have responsibility. But the article actually says quite the opposite. According to the article, the general understanding of international law when not distorted to attack the Jewish state is that a state only has control if three ingredients are present at the same time: (1) the armed forces of the occupying state are physically present in a foreign territory without the consent of the local government; (2) the effective local government has been or can be rendered substantially incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence; and (3) the foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government. As it happens, exactly ZERO of these ingredients are present in Gaza. In other words, the article cited as authoritative by Schaerer shows just the opposite of what he claims.

Of course, the article is produced by an ICRC lackey, and it attempts to fabricate a new legal theory that can justify the ICRC’s position against the Jewish state. Thus the article offers for unnamed “specific and exceptional cases” the “functional theory” that Mr. Schaerer uses to try to impose legal duties on Israel to support Hamas’s rule in Gaza. But the article does not even try to claim that there has ever been such a specific and exceptional case in recorded history. In fact, the article introduces its discussion of the “functional theory” by contrasting it with existing law, making it clear that even the article’s author cannot seriously claim that the ICRC’s anti-Israel position reflects international law as it currently stands. Instead, the article offers the “functional theory” as an innovation for which the article cites not a single legal authority nor any legal precedent.

However, I should acknowledge that Mr. Schaerer is right in saying that it is “facile” to accuse the ICRC of hypocrisy. We do not have any clear evidence of the ICRC officials’ motivation in distorting legal standards to create a uniquely harsh anti-Israel standard. The only things that can be clearly demonstrated are that the ICRC is using a harsher standard against Jewish state than it has used against any other country in recorded history, that its anti-Israel standard has no basis in international law as it is currently understood and applied, and that ICRC employees advocate the ICRC’s anti-Israel position by means of falsehoods and disingenuous argumentation. Until an ICRC employee is willing to be more forthcoming, the reasons for the ICRC’s bias against the world’s only Jewish state will remain a mystery.

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The hypocrisy of the ICRC and the definition of "occupation" (updated - ICRC responds) (x2+)

A couple of years ago, the International Committee of the Red Cross put a bunch of international law scholar in a room and they all discussed "Occupation and Other Forms of Administration of Foreign Territory."

One very interesting part of the resulting publication is that the experts didn't only discuss what factors make a territory legally occupied, but also what factors are necessary to end occupation.

While there was rarely consensus across the board, some parts of the discussions are most enlightening.

As far as the definition of occupation is concerned, there was near unanimity that it has three components:

The experts discussed the cumulative constitutive elements of the notion of effective control over a foreign territory, which underpins the definition of occupation set out in Article 42 of the Hague Regulations of 1907.

The presence of foreign forces: this criterion was considered to be the only way to establish and exert firm control over a foreign territory. It was identified as a prerequisite for the establishment of an occupation, notably because it makes the link between the notion of effective control and the ability to fulfil the obligations incumbent upon the occupying power. It was also agreed that occupation could not be established or maintained solely through the exercise of power from beyond the boundaries of the occupied
territory; a certain number of foreign “boots on the ground” were required.

The exercise of authority over the occupied territory: the experts agreed that, once enemy foreign forces were present, it was their ability to exert authority in the foreign territory that mattered, not the actual and concrete exercise of such authority. Using a test based on the ability to exert authority would prevent any attempt by the occupant to evade its duties under occupation law by deliberately not exercising authority or by installing a puppet government. It was also agreed that occupation law did not require authority to be exercised exclusively by the occupying power. It allows for authority to be shared by the occupant and the occupied government, provided the former continues to bear ultimate
and overall responsibility for the occupied territory.

The non-consensual nature of belligerent occupation: absence of consent from the State whose territory is subject to the foreign forces’ presence was identified as a precondition for the existence of a state of belligerent occupation. For occupation law to be inapplicable, this consent should be genuine, valid and explicit. The experts felt that because occupation law does not provide for any criteria for evaluating it, consent should be interpreted in the light of current public international law. Eventually, the existence
of a presumption of absence of consent when foreign forces intervened in a failed State was approved.

These are pretty much what every serious legal scholar agrees are the criteria for occupation.

What about the end of occupation? At what point is occupation over?

A large majority of the experts expressed the view that the criteria for establishing the end of an occupation should mirror the ones used to determine its beginning. In other words, the criteria should be the same as those for the beginning of occupation but in the reverse order. Therefore, the physical presence of foreign forces, their ability to exert their authority over the territory concerned and the continuing absence of the territorial authorities’ consent to the foreign forces’ presence would be the preconditions that would have to be cumulatively fulfilled in order to conclude that the occupation had not ended. Should one of those criteria be unmet, it would result in the termination of the state of occupation. The concept of ‘classic’ occupation was the basis of the discussions on the criteria for determining the existence of a state of occupation, in particular its termination, for the purposes of IHL.

The reason is pretty clear:

...some of the experts emphasized the point that an occupation could not be said to exist when the foreign forces had withdrawn completely from the territory concerned. According to them, one could not then support the continued application of occupation law and claim that the foreign forces still bore responsibilities under this body of law, because those troops would not be in a position to fulfil the related obligations. This would totally contradict the principle of effectiveness that pervades IHL, occupation law in particular. The absence of foreign troops should not serve only as an indicator for assessing the end of occupation but should be maintained as a prerequisite for determining the end of occupation as well.24 A participant pointed out that one should not build arguments for artificially maintaining the framework of occupation law, especially when this might require the foreign forces to re-invade an area they had left. In other words, it was underscored that occupation law could never oblige foreign forces to re-occupy territory from which they had completely withdrawn.

Being humanitarians, some were uncomfortable with the idea that a foreign army can just choose to leave and leave the territory to fend for itself. They came up with the concept of "residual responsibilities":

One expert added that once foreign troops had left a territory they had been occupying, the occupation law framework vanished and new legal bases should be elaborated for the residual responsibilities that could still be borne by the former occupant.

Indeed, some participants argued that the remaining aspects of occupation (i.e. the competences retained by the former occupying power) would continue to be governed by occupation law even if effective control had been concretely relinquished....

On the other hand:

Two experts nonetheless contested the view that occupation law could provide an adequate legal basis for those residual responsibilities. They drew attention to the fact that occupation law norms were calibrated to take effect only when a certain amount of control had been established over a given foreign territory; this point would be reached only when the criteria identified in the previous working sessions had been met. Therefore, these experts argued, it would not be wise to detach the application of occupation law from the concept of effective control for the purposes of IHL.

The residual responsibilities exercised by the former occupying power should be governed by other bodies of law, such as human rights law or even residual IHL, since occupation law would no longer be applicable. In this regard, one expert warned against the danger of cramming everything into occupation law and underlined the necessity of not stretching this corpus juris beyond its breaking point, as that would ultimately challenge the principle of effectivity on which occupation law was premised. This would particularly be the case if one were to attempt to impose obligations under occupation law on foreign forces that were not in a position to respect them, insofar as this body of law’s positive obligations, to be implemented effectively, usually required the presence of ‘boots on the ground.’

No counter-argument is offered.

Later on, referring to Gaza specifically, the report concludes* (see update 2, it was not a conclusion but part of an appendix:)

...the specific proposition that the rules relating to occupation continued in the situation after September 2005 would appear difficult to sustain granted the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.

In other words, there is near-total consensus view among international legal scholars surveyed in this ICRC document that Gaza cannot possibly be considered occupied by Israel in a legal sense (although the report was careful to state that conclusions like this should not be drawn about specific situations like Gaza, see update 2 below. I am basing this statement on the arguments of occupation given in the document. I would guess that the reason that the ICRC made that disclaimer is specifically for cases like Gaza where they want to make their own legal decisions independent of what international law actually says.)

However, in the ICRC's latest annual report, they write:

[The ICRC] responded rapidly to the needs of people affected by emergencies, including towards year-end in the DRC, Israel and the occupied Palestinian territory (Gaza Strip) and the Philippines.

Just like the UN, the ICRC knows the definition of occupation does not in any way apply to Gaza - yet they still call Gaza occupied!

In the case of the ICRC, it is worse. Because the ICRC acts like it is the ultimate authority on international humanitarian law, so when it says Gaza is occupied - against the legal reasoning of the experts it consulted* - it has gravitas. There is essentially no sane legal argument that Gaza should still be considered occupied (see here for answers to the most significant arguments not addressed in the ICRC document.)

The only conclusion that can be drawn from this is that the ICRC is just as political an organization as the UN is, and it will toe the politically correct line of saying Gaza is occupied even when it knows quite well otherwise. As is so often the case, there is one rule for Israel and one for the rest of the world - even among those who pretend to be the most unbiased observers.


(This ICRC hypocrisy was noted in this short but essential paper by Robbie Sabel at JCPA; I just followed his footnotes to verify that the ICRC indeed comes up with one conclusion and then ignores it when it comes to Israel.)

UPDATE: Juan-Pedro Schaerer, ICRC Head of Delegation Israel and the Occupied Territories, responds in the comments:

While this article provides a summary of an important expert's workshop, the author ignores essential facts used by the ICRC when applying of the Law of Occupation to Gaza.

The ICRC closely monitors developments in the Gaza Strip, since facts on the ground are crucial to determining whether the elements of effective control required for occupation continue to be met. While it cannot be said that the Gaza Strip is a "classic" situation of occupation, Israel has not entirely relinquished its effective control over the Strip. This control includes amongst other the almost total control over the borders of the Gaza Strip (except for the border with Egypt), the control over the airspace and the entire coast line, the control over who can move out of the Gaza Strip, the control of the population register, control over all the items that can be imported and exported from the Strip and the control over a no-go zone along the Gaza fence inside the Gaza Strip. These facts and others allow ICRC to determine that Israel exercises effective control and therefore remains bound by the law of occupation in the case of Gaza.

This article ignores such essential facts and concludes in a facile way that the ICRC is hypocritical, biased and politically-motivated. The ICRC has no doubt that much of the hardship caused to the 1.7 million people living in Gaza would be reduced if international humanitarian law was fully understood and respected. ICRC works in a neutral and impartial way to promote a better understanding of international humanitarian law, and to alleviate the suffering caused by those who fail to respect it.

Schaerer Juan Pedro
ICRC Head of Delegation Israel and the Occupied Territories

I responded:

Thanks for your response.

According to the consensus of the report, as well every single other legal analysis I have ever seen (from Amnesty, for example) the notion of effective control means "boots on the ground." The ICRC report allows "indirect effective control" if there is a local militia that answers to the occupant. That's it.

If your argument is that control over airspace, coast and (most) of the borders, etc. constitutes "effective control," then the ICRC is truly pursuing a sui generis definition that applies to Israel, and only Israel. (As the EJIL article I referenced concluded, you can say that the situation is a siege - something that the border with Egypt completely contradicts - but in no way is it an occupation.) Israel couldn't fire a garbageman in Gaza if it wanted, let alone install a new government.

I am not arguing that Israel has no responsibilities under IHL to help the civilians of Gaza. The Israel Supreme Court decision Jaber al-Basyuni Ahmad et al. v. The Prime Minister and the Minister of Defence makes it clear that it does, under LOAC for example. But if the ICRC is defining Gaza as "occupied," and your response proves that it does (I admit I was hoping that it was a mistake,) then you are proving that the ICRC has a different standard for its definition of occupation only in respect to Israel.

I believe that your response proves my point.

UPDATE 2+ (Things in italics in this update were written Saturday night): Mondoweiss' Phan Nguyen writes a lengthy post criticizing this article. Time constraints do not allow me to fully address all the points right now.

I will admit that the wording I used that the ICRC report "concludes" that occupation relies on "boots on the ground" was incorrect; it was an appendix by Professor Adam Roberts. However, contrary to what the Mondoweiss author writes (saying my interpretation is "perhaps the most ridiculous aspect of EOZ quoting Roberts") Roberts makes crystal clear that he is saying that the idea of Gaza being considered occupied after Israel's withdrawal is problematic. Here's the entire paragraph:

Whatever one’s view of the main substantive part of the Supreme Court’s verdict in this case, the specific proposition that the rules relating to occupation continued in the situation after September 2005 (which was only one plank of the petitioners’ case) would appear difficult to sustain granted the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.

I have no clue how the Ngyuyen can read this the opposite way. Perhaps he is the one with the reading comprehension problem, but readers can make up your own minds.

I don't think I characterized the report as being reflective of the ICRC's official views, as Nguyen says. I read the report as being an attempt to determine the laws of occupation, period. (*There was one line I did characterize the report as "ICRC's own legal reasoning" and that was indeed wrong. I placed an asterisk there before Shabbat intending to admit that in this update, but in the rush I forgot. I was most certainly not trying to erase any evidence; I know enough about the Internet to know about cached copies. Sheesh.) I found it hypocritical that the ICRC in practice behaves opposite what most of the experts it gathered say, that there are three criteria to determine occupation and (most of them) agreeing that the same three criteria determine the end of one.

I plan to go into more detail on the sui generis part of the ICRC's thinking based on the second report that was referenced by Schaerer, by Ferraro, in the comments of this post but not in the post itself. I think that Ferraro, an ICRC legal adviser, was bending over backwards to figure out a way to make Israel appear to be occupying Gaza even though most of his paper would seem to argue the opposite; in addition he brings no sources at all to prove his very novel theory.

It is true that sometimes the boundaries of law must be determined by sui generis cases.  But the law must be interpreted dispassionately and not to come to a predetermined conclusion based on how the lawyer feels about the specific case. The arguments about control of borders, airspace, etc. being "effective control" are not merely stretching the boundary a little - they are moving it to places that no objective legal scholar would ever countenance. "Boots on the ground" has been one of the definitions of occupation accepted by all since the 19th century, to throw that away without any solid legal reasoning indicates that the legal arguments are meant to come to a specific conclusion, which is really a travesty of the law.

And this is what the ICRC is doing. More details next week.

My critic doesn't want to get into that argument, of how the law cannot be changed that drastically especially by parties who have an interest in changing it, instead concentrating on minor mistakes I made. In retrospect the term "hypocrisy" was perhaps too harsh but I will return to that in a followup post.


UPDATE 3: Followup post here demolishing Schaerer's comments.

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Does the UN consider Gaza legally "occupied"?

Ma'an says, at the end of an article:

Gaza [is] considered to be occupied by Israel according to the United Nations, as Israel controls the Gaza Strip's airspace, territorial waters and movement of people and goods.

This is false. Israel's control of airspace, waters and some of the borders is not a definition of occupation, and the UN has never made that claim - only clueless anti-Israel activists made that argument up, but it has no legal validity.

Ma'an, being the twisted news agency it is, swallows and regurgitates anti-Israel lies without bothering to check the facts.

Less than two years ago, UN Watch specifically asked the UN why it continues to refer to Gaza as "occupied" when under any sane interpretation of international law, it isn't. The UN replied:

Under resolutions adopted by both the Security Council and the General Assembly on the Middle East peace process, the Gaza Strip continues to be regarded as part of the Occupied Palestinian Territory. The United Nations will accordingly continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until such time as either the General Assembly or the Security Council take a different view.

Question: Can I follow up on that? It is the legal definition of occupation and why is Gaza considered occupied?

Spokesperson: Well, as I have just said, there are Security Council and General Assembly resolutions that cover this. For example, there was a Security Council resolution adopted on 8 January 2009 — 1860 — and that stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967. And as you know, Security Council resolutions do have force in international law.

Furthermore, there is a resolution from the General Assembly from 20 December 2010, and while it noted the Israeli withdrawal from the Gaza Strip and parts of the northern West Bank, it also stressed, in quotes, “the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem”. So just to repeat that the United Nations will continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until either the General Assembly or the Security Council take a different view on the matter.

Note that the UN isn't saying that Gaza is legally "occupied." It is saying that Gaza must be referred to as "Occupied Palestinian Territory" - it is arguing nomenclature, not law. The Hague Conventions makes it clear that occupied territory refers only to portions of territory under control of another party, not that an entire territory is either occupied or not if only part of it is.  Otherwise, Turkey would be considered to be occupying all of Cyprus, not only the northern part, since Cyprus is clearly a single territory. That is nonsensical.

At no point does the UN respond to UN Watch anything about control of borders or airspace - because it knows that it would be laughed out of court if it tried to make that claim. Ma'an is lying.

I discovered that the UN only started using the term "Occupied Palestinian Territory" formally in 1998, well after Oslo, but the UN website has been busily rewriting the titles of its documents to retroactively refer to "OPT" years before it started actually using the term.

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Jesus and international law

From Irene, who recently gave us a brilliant letter to Catherine Ashton, here is another:

---

His Holiness, Pope Francis
Apostolic Palace
00120 Città del Vaticano

Your Holiness:

Because we met some years ago when my Mercedes broke down in Assisi while you were visiting on pilgrimage, I feel emboldened to write directly to you. You may recall that I had just left my position as tenured Professor of Sharia Law and Bioethics at King Abdulaziz University Law School in Riyadh to become Senior Advisor in International Law for the European Union.

It was in the course of preparing a detailed analysis of the many legal issues related to the Israeli occupation of East Jerusalem and the West Bank, that it came to my attention that the Second Coming of Jesus Christ would be a grave violation of international law.

Although no mortal can truly foresee the time, the place, or the nature of the Second Coming, the sophisticated algorithms of modern prediction modeling software indicate that the Second Coming, like the First Coming, will be far more complex than the simple blaze of glory that some predict. Christ will most likely return to the places where He lived, worked, and preached, i.e., East Jerusalem and the West Bank (which was called Judea and Samaria until Abdullah, first king of the judenrein nation of Jordan, changed its name).

As you may recall, Abdullah successfully cleansed all Jews from those areas during the 1947-1949 Palestinian Arab and Arab League War, which attempted to annihilate the new state of Israel and expel any Jews not yet dead when the fighting stopped. The Secretary General of the Arab League, Azzam Pasha, clarified Arab intent: "This will be a war of extermination and a momentous massacre that will be spoken of like the Mongolian massacres and the Crusades."

Ever since 1967, when Jews returned to live in the places from which they had been driven, such as Hebron, international law has strenuously prohibited Jews from living in East Jerusalem and the West Bank.

With respect to the rule of international law, Hebron is especially significant because that is where Arabs massacred the Jews in 1929. As you know, The Book of Genesis records Abraham’s purchase of land in Hebron and the subsequent burial there of Abraham, Isaac, and Jacob as well as their wives Sarah, Rebekah, and Leah. Hebron is where David was anointed King, and it served as his capital until he relocated to East Jerusalem.

If the Prince of Peace returned to Jacob’s well in the West Bank and asked a Samaritan woman to draw water for him, this would constitute Jewish theft of Palestinian water, an international felony. Such action by Jesus would interfere disastrously with the Palestinian-Israeli peace talks. Even Pax Christi, the international Catholic peace movement, is opposed to the presence of Jews in the land on which Jesus Christ, their Lord and Savior, walked.

Jesus will surely attempt to return to Jerusalem’s oldest neighborhoods and to Temple Mount, where He last preached. If He retraced His footsteps on East Jerusalem's Via Dolorosa, this would be an impediment to world peace, as well as an affront to Palestinian sovereignty. In addition, it would violate the 1907 Hague Convention respecting the Laws and Customs of War on Land, numerous United Nations resolutions, and the fourth Geneva Convention.

Your Holiness, this calls for the same kind of religious courage and international acumen that you exhibited this May when you canonized the Martyrs of Otranto, the 800 Christians slaughtered in 1480 by Ottoman Turks, while remaining silent on the plight of Christians in Turkish occupied Northern Cyprus.

I look forward to your encyclical exhorting the faithful to pray for a postponement of the Second Coming, as least until the European Union and the United Nations have ethnically cleansed the area and Hamas has established sharia law.

I have the honor to profess myself with the most profound respect, your Holiness' most obedient and humble servant.

Yours profoundly,

حسین بن علی
Hussein bin Ali, GCB
Senior Advisor in International Human Rights Law for the European Union

cc: Lady Catherine Ashton

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BBC corrects article saying Rouhani only opposes "occupation"

On August 2, I noted that the BBC was whitewashing a quote from "moderate" Iranian president Rouhani, pretending that he was only against the "occupation":

As I wrote then,

While it appears that Rouhani used the word "occupation," the BBC is - seemingly purposefully - misleading its readers into believing that he is only talking about the hated "occupation" but has no problem with Israel. Iran, of course, considers all of Israel to be "occupied" so this terminology in the headline and subhead is deceptive - and seemingly purposefully so.

Simon, who brought the article to my attention, wrote to the BBC:

The story refers to President Rouhani making threatening comments regarding
Israel. In mentioning Rouhani's use of the term "occupied", the story does
not make it clear how this term would be interpreted in Farsi.

In English, "Israeli occupation" commonly refers to the West Bank and Gaza
Strip. In Farsi, "Israeli Occupation" refers to the State of Israel itself,
as well as the West Bank and Gaza.

By falling to draw this distinction, the article misleads readers,
insinuating that Rouhani is merely threatening Israel's continuing
occupation. In reality, he issued a threat against an entire nation.

Thus, the article is factually inaccurate.

Over two weeks later, the BBC responded:

We have reviewed the article in question and agree with the interpretation that Hassan Rouhani's remarks were aimed at the State of Israel. We have amended the story accordingly and added a footnote explaining the correction.

Here is the article now with the correction:

Getting the truth out there is hard work, and while correcting an article that no one is reading any more is not ideal, it at least helps ensure that similar problems are not repeated in the future.

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How would Catherine Ashton answer this?

This letter, written by Irene, is sort of genius:

---

PERSONAL AND CONFIDENTIAL

Lady Catherine Ashton
High Representative of the Union for Foreign Affairs and Security Policy
and
Vice-President of the European Commission
Brussels

Excellency:

Because we met a few years ago in Ankara during the time of Turkey’s invasion of Iraq and its bombing of Iraqi civilian homes that Prime Minister Erdoğan believed to harbor PKK activists, I feel emboldened to write directly to you. You may recall that I had just been dismissed from my position as Senior Protocol Officer of the Republic of Azerbaijan by Armenian occupation officials.

I have several questions regarding the new directive “Guidelines on the eligibility of Israeli entities and their activities in the territories occupied by Israel since June 1967 for grants, prizes and financial instruments funded by the EU from 2014 onwards.”

1. My primary business is established (as defined in the directive) in Turkish occupied northern Cyprus, but I employ an individual whose great grandfather lived in Hebron in the West Bank during all 19 years of the Jordanian occupation when the whole area was ethnically cleansed of Jews. Am I eligible to apply for an EU grant to pay his salary?

2. I have a second business, incorporated and established, for tax purposes, in Rabat, but which is physically located in Moroccan occupied Western Sahara. We manufacture prayer flags for an important client in occupied Tibet; but the delivery truck broke down while transiting Jordan, which King Hussein, at the time of our incorporation, said was Palestine. (I believe his exact statement was, “Jordan is Palestine, and Palestine is Jordan.”) Because of the emergency nature of the shipment, we contracted with a trucking firm run by Hasidic individuals from Beitar Illit in the occupied West Bank. They are demanding advance payment in the currency previously used in western Georgia before the Russian invasion. Are we eligible for a short-term loan from the European Investment Bank?

3. I have a third business that my Jewish great aunt established in Jerusalem’s ancient Jewish Quarter on the very day that General Allenby arrived with British Forces in their effort to protect the civilians of Albion from Ottoman aggression thousands of miles away. (Of course, that was before it became an international crime for Jews to live in East Jerusalem.) This firm exports pastis to customers in French-occupied Corsica and also to Bilbao in the Spanish occupied Basque region. If I establish a dummy corporation in British occupied Gibraltar, will my pastis meet European Union specifications, or will I have to ship it to the Falklands for reprocessing?

I am so appreciative of your attention to this matter. I remain a committed fan of your clear vision for the future of civilization as we know it. Your many pronouncements on the ethics of occupation and the need to maintain the rule of international law throughout the cosmos have been an inspiration to so many of us. I look forward to meeting you when you come to Riyadh in the fall for the International End to Feminism Conference.

Allow me, Excellency, to renew to you the assurances of my highest consideration.

Yours profoundly,

Ağcabədi Ağdaş
President and Chief Financial Officer
Bərdə Beyləqan Biləsuvar, Ltd.

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The EU's slide towards accepting Palestinian Arab intransigence since 1997

Early today I noted that the official EU guidelines that were much discussed since yesterday incorrectly used the phrase "1967 borders" to refer to the 1949 armistice lines; lines that were never national borders and never meant to be national borders.

I just did a quick look through official EU documents and the earliest mention I can find of  the phrase "1967 borders" is this 2002 document, which was quickly followed by a host of others with the same wrong formulation.

It is astonishing that Israel apparently never pushed back on the EU to change that incorrect language.

But beyond that, it is notable to see how the EU's language has, over time, become more strident against Israel and more pro-Palestinian.

From the June 1997 Presidency Statement:

The foundations of peace are widely known : the right of all States and peoples in the region to live in peace within safe, recognized borders; respect for the legitimate aspiration of the Palestinian people to decide their own future; the exchange of land for peace; the non-acceptability of the annexation of territory by force; respect for human rights; the rejection of terrorism of all kinds; good relations between neighbours; and compliance with existing agreements and the rejection of counterproductive unilateral initiatives. In this context the Union recalls its opposition to settlements and attachment to security cooperation.

...We call on the people of Israel to recognize the right of the Palestinians to exercise self-determination, without excluding the option of a State. The creation of a viable and peaceful sovereign Palestinian entity is the best guarantee of Israel's security. At the same time we call upon the Palestinian people to reaffirm their commitment to the legitimate right of Israel to live within safe, recognized borders.

From the June 2002 Presidency Statement - as noted, the first time I can find a reference to "1967 borders."

The European Council strongly condemns all terrorist attacks against Israeli civilians. The peace process and the stability of the region cannot be hostage to terrorism. The fight against terrorism must go on; but so at the same time must the negotiation of a political solution.

A settlement can be achieved through negotiation, and only through negotiation. The objective is an end to the occupation and the early establishment of a democratic, viable, peaceful and sovereign State of Palestine, on the basis of the 1967 borders, if necessary with minor adjustments agreed by the parties. The end result should be two States living side by side within secure and recognised borders enjoying normal relations with their neighbours. In this context, a fair solution should be found to the complex issue of Jerusalem, and a just, viable and agreed solution to the problem of the Palestinian refugees.

The reform of the Palestinian Authority is essential. The European Council expects the Palestinian Authority to make good its commitment to security reform, early elections and political and administrative reform. The European Union reaffirms its willingness to continue to assist in these reforms.

Now compare those to this statement from the High Representative, November 2012, which no longer calls on the PA to have any responsibility - as if the PA has achieved the goals of democracy and transparency insisted upon ten years earlier:

The EU has repeatedly expressed its support and wish for Palestine to become a full member of the United Nations as part of a solution to the conflict. The EU has also consistently worked to advance the Palestinian Authority's state-building efforts under Prime Minister Fayyad. It will continue to do so. Recalling the Berlin Declaration of March 1999, the EU reiterates its readiness to recognize a Palestinian State when appropriate.

...It is important for all parties and actors involved to work towards a settlement of the conflict with renewed purpose and sense of urgency. The European Union recalls its well-known positions on intra-Palestinian reconciliation behind President Abbas, settlements and Israel’s security. The European Union calls on all parties to pursue actions conducive to an environment of confidence necessary to ensure meaningful negotiations and to refrain from actions that undermine the credibility of the process....

The EU reaffirms its position that clear parameters defining the basis for negotiations are key elements for a successful outcome, together with the avoiding of unilateral measures and acts on the ground which undermine confidence and the viability of the two-state solution. The European Union reaffirms that it will not recognise any changes to the pre-1967 borders including with regard to Jerusalem, other than those agreed by the parties...

Two weeks ago, from a joint statement with the GCC:

The Ministers reaffirmed their shared position that a just, comprehensive and lasting peace in the Middle East is vital for international peace and security, noting that such a solution must be based on UN Resolutions and the Arab Peace Initiative, leading to the establishment of an independent and sovereign Palestinian State on the territory occupied since 1967. ...

The Ministers reaffirmed their position not to recognize any changes to the pre-1967 borders other than those agreed by both parties including with regard to Jerusalem. They stressed their common position that Israeli settlements anywhere in the occupied Palestinian territories are illegal under international law and constitute an obstacle to peace. In this regard, they called on Israel to immediately end all settlement activity in East Jerusalem and the rest of the West Bank, including natural growth, and to dismantle all outposts. The Ministers agreed on the need to continue to support Palestinian state-building efforts, both politically and financially.

I still do see some more recent documents that call for "secure and recognised borders" such as this one from January 2012 and this one from this month. But both those statements also enshrine the "Arab Peace Initiative" as one of the bases for peace.

The change in language over the years is unmistakable. Essentially the entire Palestinian Arab position has been adopted fully by the EU.

There is not even insistence to end Palestinian Arab incitement against Jews and Israel, nothing about Hamas (and some Fatah) terrorism, nothing condemning Abbas' embrace of stone throwing and firebombs as "peaceful resistance" - nothing.

This represents a great failure on the part of Israel's diplomats.

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