Showing posts with label international law. Show all posts
Showing posts with label international law. Show all posts

Friday, January 08, 2021




Israel closed the Tomb of the Patriarchs in Hebron for ten days at the same time that it increased the lockdown in most of the country to stop the spread of the coronavirus.

Even though Israel does not agree that the lands of Judea and Samaria are legally considered occupied, Israel's High Court of Justice usually applies the laws of belligerent occupation when deciding what is allowed in those areas. It is still important to understand whether Israel is adhering to international law of belligerent occupation, especially when prominent human rights organizations claim that it is violating those laws.

As we have shown, Israel is not obligated to provide Palestinians living in those areas with vaccines when their own leaders have indicated that they can handle the epidemic and the procurement of vaccines themselves. The local authorities are the ones with the primary responsibility of maintaining health. It is absurd to say that because Israel built an infrastructure to provide vaccines to its people before every other country on Earth that it must provide vaccines for Palestinians at the exact same time, especially when the Palestinian leaders do not want to get the vaccines from Israel and have been making arrangements to receive different vaccines that could be given to their people sooner than it would take to acquire the special refrigeration equipment the Pfizer vaccine needs.

The question of the Tomb of the Patriarchs is interesting because it is the flip side of the same question. In this case, the local authorities are against a health measure that Israel wants to enforce. In this case, does Israel have the right, or even obligation, to enforce health rules in opposition to the wishes of the Palestinians?

Once again, we see that Israel is following the Geneva Conventions.

The ICRC's commentary of same Article 56 that says that Israel must work with local authorities to ensure the health and safety of the population also says when Israel must override those authorities:
It will be remembered that Article 55 requires the Occupying Power to import the necessary medical supplies, such as medicaments, vaccines and sera, when the resources of the occupied territory are inadequate. It will also be able to exercise its right to requisition, and demand the co-operation not only of the national and local authorities but also of the population in the fight against epidemics.
The Palestinian Authority has the resources to acquire vaccines, but it is not cooperating with Israel in lockdowns. Israel has every right to force those lockdowns when the local authorities are unable or unwilling to.

To be sure, deciding when such a move is needed is often a judgment call. And there is one other part of Geneva that gives the Palestinians more considerations in this case:
In adopting measures of health and hygiene and in their implementation, the Occupying Power shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory.
The commentary says:

The last paragraph provides protected persons with a further safeguard, in that any measure of public health and hygiene the Occupying Power feels it should take in order to comply with the above stipulations must pay due regard to the habits and customs of the population (3).
The purpose of the provision is to ensure respect for sentiments and traditions, which must not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are liable to cause deep disquiet among the population. The provision should be compared with Article 27 [ Link ] , which requires the Party to the conflict to respect, in all circumstances, the religious convictions and practices of protected persons, and also their manners and customs.
In this case there is a tension between the requirements of ensuring the health and safety of the population and that of respecting religious practices. But even here the language of what Israel may do to fight an epidemic is much stronger than the language of respecting local religious customs - the former is a requirement, the latter is something that must be taken into consideration.

It is also beyond doubt that the objections of the Palestinians to the temporary shutdown is at least as much out of resentment for Israel than out of true religious sentiment. For example, the PA is claiming that Israel adhering to international law is a war crime:
Mahmoud al-Habbash, advisor to President Mahmoud Abbas on religious affairs and Islamic relations, described Israel's lockdown of the holy site as an inclusive war crime, saying that banning worshipers access to the site could fuel the sentiments of Muslims around the world.
Also instructive is the reaction of Hebron's Jewish community to the shutdown. The site is at least as holy to Jews as it is to Muslims, yet their reaction to not being able to enter the site is the opposite of the Palestinians':

After all, there is no greater religious obligation than saving lives.

Once again, Israel is scrupulously adhering to international law, while it is being falsely accused of violating that law. And once again, the accusers don't care about the laws themselves, but in how to twist the laws in ways that demonize Israel. 




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Wednesday, January 06, 2021



We have been inundated the past couple of weeks with the claim that Israel must, under international law, provide vaccines to Palestinians at the same time it is providing them to Israelis. 

One example is the new letter from 15 "human rights" NGOs which says, "Article 56 of the Fourth Geneva Convention specifically provides that an occupier has the duty of ensuring 'the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics'. This duty includes providing support for the purchase and distribution of vaccines to the Palestinian population under its control."

If we assume that the Palestinian areas are occupied - something that I disagree with - the question is, are these critics accurate?  What exactly does international law say?

The Fourth Geneva Conventions, Article 56, says:

To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. 
The bolded part is not in the NGO letter, and for good reason: it is critical and contradicts what Amnesty, B'Tselem and the others claim.

To understand why, here is the 1958 interpretation of that article from the ICRC, which is generally accepted as international law:

The reference in the Article to "the co-operation of national and local authorities" ...shows clearly that there can be no question of making the Occupying Power alone responsible for the whole burden of organizing hospitals and health services and taking measures to control epidemics. The task is above all one for the competent services of the occupied country itself. 
This is crystal clear - even in cases of belligerent occupation, the primary responsibility of health care goes to the local medical professionals. In this case, obviously, that would be the Palestinian Authority. 

It is possible that in certain cases the national authorities will be perfectly well able to look after the health of the population; in such cases the Occupying Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for the task. 

Which is exactly what is happening. The Palestinian medical infrastructure is decent. If they need help from Israel, there is no reason to think that Israel wouldn't help out. Israel was praised even by the UN on how well it has cooperated with the PA during the pandemic even while the PA spread conspiracy theories, why would anyone besides antisemites think otherwise?

It will be remembered that Article 55 requires the Occupying Power to import the necessary medical supplies, such as medicaments, vaccines and sera, when the resources of the occupied territory are inadequate.
In this case, the local resources have been making arrangements to buy their own vaccines. They will probably have to wait until February, but in that sense they are no worse than most of the nations of the world. Israel paid double or triple the regular price of the vaccines it has procured specifically to get to the front of the line, any nation could have done the same, but practically the entire world has chosen to wait and purchase them at regular prices. (Plus, logistically, the PA couldn't use the Pfizer vaccine that Israel is vaccinating its citizens with anyway because they don't have the proper refrigeration equipment.)

If the Palestinians waiting for a few weeks for the Moderna or Astra Zeneca or Sputnik vaccines is a violation of human rights, then most of the world is having their human rights violated.

At any rate, claiming that Israel is somehow responsible for bringing the vaccines to Palestinians at the same time as Israelis is not supported at all in international law. Nor does any international law say that an occupier must prioritize taking care of the citizens in occupied territories before providing for its own citizens. 

Obviously, if there is a major breakout of a much deadlier strain in the Palestinian territories, it is in Israel's self-interest to work with the Palestinian Authority to help them - just as they cooperated with them last spring, before Mahmoud Abbas decided to cut all ties - including medical! - with Israel. 

The bottom line is that international law of belligerent occupation says that if Israel is the occupying power, it must act with the local authorities to ensure the health of the population. Which is exactly what Israel has been doing since the initial outbreak. The only party that refused cooperation was the Palestinian Authority from around June to November. If they ask for help, they will get it.

And anyone who implies otherwise is either ignorant or bigoted. 




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Friday, April 12, 2019

By Daled Amos

Isn't it amazing how blessed social media is with so many experts in International Law?

This is especially true when it comes to Israel.

You can always find people who have never been there, show absolutely no knowledge of the land, its people or its history -- yet are perpetually prepared to offer their expert opinion on the knottiest issues.

On the other hand, you can also find people in the Middle East who believe themselves expert in matters of international law when it comes to countries far away, such as in the US.

Take Daoud Kuttab.

Kuttab, a Palestinian Arab, is a journalist and a former professor of journalism in Princeton.
So he knows a thing or two about journalism -- but not about international law.

During the August 9, 2001 Sbarro massacre, masterminded by Hamas terrorist Ahlam Tamimi and carried out by Izzadin al-Masri, 15 people were murdered, including 8 children and 130 were injured. Another victim remains in a coma. Three of the victims were Americans, including Malki Roth.

Tamimi was caught and her remorseless grin while exulting in retelling the story of her terrorist attack appears all over YouTube.

Tamimi was sentenced to 16 life terms.

And that should have been the end of her story.

However, Gilad Shalit was kidnapped on June 25, 2006, by Hamas terrorists who extorted Israel and refused to release Shalit (even refusing visits from the Red Cross) until Israel agreed to exchange over 1,000 Arab prisoners for Shalit's release on October 18, 2011.

Ahlam Tamimi was one of those prisoners.

Tamimi did not complete her sentence. Nor did she receive a pardon.

Ahlam Tamimi release was a conditional commutation. All those released were freed on the condition that in the future they do not engage in either terrorism or incitement of terrorism. In fact, dozens of the terrorists who were released under the Shalit ransom deal have since been sent back to prison to serve out the remainders of the terms over the past five years due to their violation of those conditions.

For her part, immediately upon her release, Tamimi began violating the terms of her commutation by inciting terrorism by giving interviews where she has rejoiced in her terrorist attack and its results, bragging that she would commit that massacre of children again if she could.

But since she lives in the welcome arms of Jordan, Tamimi is untouchable and out of the reach of justice.

At least until the US Department of Justice unsealed an indictment of Tamimi for her role in murdering US citizens. As per its 1995 extradition with Jordan, the US requested that Tamimi be handed over for trial.

Since then, Jordan -- which has treated Ahlam Tamimi like a celebrity, despite her deliberate murder of children -- has given a number of excuses for not complying with their treaty with the US.

One of those is Double Jeopardy, that because Ahlam Tamimi was tried and convicted in Israel, she cannot be tried by the US and therefore the extradition treaty does not apply.

Daoud Kuttab agrees:

Kuttab is no lawyer, and clearly has no knowledge of the principle of Double Jeopardy -- and the exceptions that apply to it.

Arnold Roth, the father of Malki Roth, has written that he has spoken to legal experts who told him that Double Jeopardy does not apply in this case because Tamimi would be tried in a different country and with different charges.

Let's take a look at some sources.

Start with The International Covenant on Civil and Political Rights. According to Article 14, Paragraph 7:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
On the actual extent of this principle, we have the explanation of The United Nations Human Rights Committee, which is a UN body of 18 experts established by a human rights treaty -- the International Covenant on Civil and Political Rights.

The United Nations Human Rights Committee explains Double Jeopardy:
IX. Ne bis in idem ["Not twice in the same thing"]

Article 14, paragraph 7 of the Covenant [on Civil and Political Rights], providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country, embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence.

...Furthermore, it does not guarantee ne bis in idem with respect to the national jurisdictions of two or more States.116 This understanding should not, however, undermine efforts by States to prevent retrial for the same criminal offence through international conventions. [emphases added]
According to this, it is clear that Double Jeopardy does not apply when:
o  the accused is brought to trial before a different national jurisdiction or State, or
o  the accused is tried for a different offense
What about that footnote, number 116?

It gives 2 examples from previous opinions handed down by the Committee where it rejected the application of Double Jeopardy: Communications No. 692/1996, A.R.J. v. Australia, para. 6.4; No. 204/1986, A.P. v. Italy, para. 7.3.

In Communications No. 692/1996, A.R.J. v. Australia, para. 6.4:
6.4 The author has claimed a violation of article 14, paragraph 7, because he considers that a retrial in Iran in the event of his deportation to that country would expose him to the risk of double jeopardy. The Committee recalls that article 14, paragraph 7, of the Covenant does not guarantee ne bis in idem with respect to the national jurisdictions of two or more states - this provision only prohibits double jeopardy with regard to an offence adjudicated in a given State See decision on case No. 204/1986 (A.P. v. Italy), declared inadmissible 2 November 1987, paragraphs 7.3 and 8.. Accordingly, this claim is inadmissible ratione materiae under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant.
In Communications No. 204/1986, A.P. v. Italy, para. 7.3:
7.3. With regard to the admissibility of the communication under article 3 of the Optional Protocol, the Committee has examined the State party's objection that the communication is incompatible with the provisions of the Covenant, since article 14, paragraph 7, of the Covenant, which the author invokes, does not guarantee non bis in idem with regard to the national jurisdictions of two or more States. The Committee observes that this provision prohibits double jeopardy only with regard to an offence adjudicated in a given State.
Clearly, Double Jeopardy is not an absolute and has exceptions when dealing with more than one state. Double Jeopardy then does not apply when the United States wants to try Ahlam Tamimi after she was already tried in Israel

Note that above the Human Rights Committee did say:
This understanding should not, however, undermine efforts by States to prevent retrial for the same criminal offence through international conventions
This does not contradict what has been said so far -- that sentence is talking about a case of "retrial for the same criminal offense." That is not the case here with the US extradition.

That is because the US charge against Tamimi is not murder, it is "conspiring to use a weapon of mass destruction against U.S. nationals outside the U.S., resulting in death".



Interestingly, the DC Circuit Court that indicted Tamimi is the same one that handed down a ruling in 2017 rejecting the application of Double Jeopardy in the case of United States v. Trabelsi -- the case of Nizar Trabelsi, who fought extradition from Belgium back to the US to face charges after he had actually finished his prison term in Belgium. That court is well familiar with the principle of Double Jeopardy -- and when it does not apply.

On a side note, there is the argument by Washington lawyer Nathan Lewin, who was a federal prosecutor and deputy assistant attorney general in the civil rights division of the U.S. Department of Justice. He suggests another reason why Double Jeopardy should not apply in the extradition of Ahlam Tamimi:
Also, former federal prosecutor and Washington lawyer Nathan Lewin argues that just as Double Jeopardy does not apply when a fugitive flees, it should not apply in this case where Tamimi was let go because of extortion.
There is no issue of Double Jeopardy here in the extradition of the Hamas terrorist Ahlam Tamimi to the US.

The only thing that is really in jeopardy is justice.




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Wednesday, March 27, 2019



The major legal reason given by critics of Israel today against the annexation of the Golan Heights is a combination of what the UN Charter says with an unwritten but widely assumed corollary.

The UN Charter says in Article 2, paragraphs 3 and 4:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The corollary, which as far as I can tell wasn't made explicit until the preamble of Resolution 242 in the wake of the Six Day War, is that acquisition of territory in war is invalid:
"Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,"
This was finally made prescriptive in  UNGA 2625 of 1970: "The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition faulting from the threat or use of force shall be recognized as legal."

Does this apply in wars of self-defense as well? Today, most legal scholars argue that it does. Before 1967, however, their views were split.

It seems logical that the corollary of the illegality of gaining territory through force is that the aggressor should not be rewarded for his illegal aggression. If the party gained land in self-defense, and self-defense is legal under the UN Charter, then the spirit of the rule is maintained - the aggressor is not rewarded for his aggression. Otherwise the aggressive party can keep trying to destroy his enemy over and over again with no repercussions.

Possibly, the most relevant document from before 1967 that deals with this issue is the 1949 Draft Declaration on Rights and Duties of States which was an early attempt by the UN to codify these sorts of issues written by its International Law Commission. I'm not certain of its legal status but it was based on the best UN international law expert opinion of the time.

It says in articles 9, 11 and 12:

9. Every State has the duty to refrain from resorting to war as an instrument of national policy, and to refrain from the threat or use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order.

11. Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of article 9.

12. Every State has the right of individual or collective self-defence against armed attack.
It says explicitly that the only time that acquisition of territory should be considered illegal is when it is acquired during an illegal war, in violation of Article 9. A war of self defense is legal (in fact the only kind that is legal,) as Article 12 says.

The idea that acquisition of territory in a defensive war is illegal seems to have only gained traction after 1967. Interesting how international law always seems to morph against Israel and only Israel! But it is important to recognize that the evolution of international law does not work retroactively - if acquisition of territory in a defensive war was legal before 1967, then Israel's control over the Golan remains legal today, even if today it is accepted that defensive acquisition is not acceptable.

As legal scholar Eugene Kontorovich notes, there were many other cases of legal acquisition of territory by war between 1949 and 1967:

The views of the U.N’s International Law Commission and most scholars in finding defensive conquest as lawful under the U.N. Charter should not be surprising given that it simply reflected broad state practice under the Charter. In the years immediately following the adoption of the Charter, many of the victorious Allies took territory of the defeated nations. All these annexations have been recognized, without controversy by the U.S. and international community. To mention only a few of these instances, Holland unilaterally annexed parts of Germany in 1949; Greece and Yugoslavia took parts of Italy; the U.S.S.R and Poland annexed large parts of Germany. The ILC in its deliberations specifically addressed the legal basis for these annexations: because the underlying use of force was lawful (defensive), the acquisition of territory can be permitted.
Nor did this practice stop with the immediate aftermath of WWII in the 1940s. At the close of the Korean War in 1953, the Republic of Korea controlled and claimed sovereignty of portions of territory north of the pre-war boundary at the 38th parallel. Nonetheless, the U.S. and the international community has not seen any obstacle to recognizing Seoul’s sovereignty over this territory. 
No one disputes any of these. Only when Israel is involved does international law suddenly change, always to Israel's detriment.








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Wednesday, September 05, 2018

The curriculum vitae of Nan Marie Greer, Ph.D. at eight pages long, is as long your arm (or more probably, your legs). It seems there’s nothing she can’t do, and she does it all extremely well. Currently, an adjunct lecturer at the University of Redlands in California, Greer teaches cultural and environmental anthropology in addition to indigenous land rights.
Nan reached out to me and my husband a few years back, introducing herself. She wanted help exploring the indigenous rights of the Jewish people, which she felt needed to be—deserved to be—enshrined in law. Impressed with her sincerity and her knowledge, we promised to do whatever we could to help her.
This two-part interview lays out Nan Greer’s vision for the people of Israel. That vision points to a resolution to territorial disputes between Arabs and Jews, the protection of both Jewish and Arab rights, and the rights of indigenous peoples everywhere. Of course it all sounds far-fetched until you read what Nan Greer has to say. And then it all makes perfect sense.
Judean Rose: What does it mean to be an indigenous people? Are the Jews an indigenous people?
Dr. Nan Marie Greer, Ph.D.
Nan Greer: The ILO Convention 169 and the U.N. working definition are the most utilized and notable documents referring to indigenous people, with the U.N.D.R.I.P. established to identify rights of indigenous people under international law. ILO Convention 169, finalized in 1989 has not been revised to contain the U.N. definition of indigenous, listed on their websites and formal documents.  However, ILO Convention 169 states: “Article 1: This convention applies to…”, it DOES NOT state, this convention “DEFINES” indigenous.
All but one organization of the U.N. maintains the definition developed by Martinez Cobo as published in U.N. documents and websites. UNESCO is NOT consistent with other U.N. organizations, and fails to utilize the U.N. working definition of indigenous.
For the purposes of international litigation, a working definition of indigenous people was established and published in U.N. policy documents and websites deriving from José Martinez Cobo’s definition:
1)    Self-identification as indigenous people at the individual level and accepted by the community as their member;
2)    Historical continuity with pre-colonial and/or pre-settler societies;
3)    Strong link to territories and surrounding natural resources;
4)    Distinct social, economic, or political systems;
5)    Distinct language, culture, and beliefs;
6)    Form non-dominant groups of society; and,
7)    Resolve to maintain and reproduce their ancestral environments and systems as distinct communities.
Critical to this definition is the identification of indigenous people having a language and belief system distinct to the area claimed in its ancestral land rights, and not generalizable to other areas, such as Arab-Muslim groups claiming lands in multiple nation-states throughout the Middle East.
Judean Rose: Why is it important for Jews to be accepted as an indigenous people? What are the implications of being indigenous to Israel?
Nan Greer: Currently, the observer state of Palestine has introduced several measures that are replicas of specific articles of rights in the UNDRIP However, they have never signed the UNDRIP, nor attempted to use the UN definition of indigenous in international circles - wisely so, as they fall outside the bounds of this critical, widely-used, and internationally recognized definition. 
While the P.A. has not pushed for legal recognition of its Arab-Muslim people as indigenous, they have been awarded approximately U$1.8 billion for legal fees directed at attacking Israel in international and national courts. If both Israel and the international community allow populations of merely “long-standing presence” to declare themselves indigenous, while not having a language, culture, or religion distinct to the geographical locale/nation-state, it allows them to jeopardize indigeneity everywhere.  This ultimately leads to the justification of colonial domination of indigenous people throughout the world - a risk that is simply not acceptable to the U.N. and the international community. 
As such, the opportunity exists for Israel to protect the indigenous Jews, and to delineate and protect communities of long-standing presence in a manner not recognized under current colonial and political formations. Indeed, much of the Arab-Muslim population has been colonized by highly politicized P.A. structures aimed at the elimination of the Jewish indigenous nation, using the Arab population, as it were, in a political war - threatening children utilized as soldiers and human shields in war, impoverishing families, and promoting lifestyles of terror. Under international law, Druze, Bedouin, and other Arab groups may not be considered indigenous as they do not have a language and religious beliefs distinct to Israel. However, they deserve a humanitarian approach outside the bounds of corruption of the current P.A. and Gaza political arrangement. Ultimately, adjudicating each land dispute and presence claim of a given group ought to occur in the legal system of the nation state, not outside of the country of Israel.
Judean Rose: Tell us about your work with other indigenous peoples.
Nan Greer: I have worked with the Mayangna and Miskitú of Central America for over 25 years now - and I continue to work with them to this day. Initially, I worked with these groups on a consultation for writing a land law that would help them to protect their lands (Law 445, Nicaragua), which defined the indigenous right to land, outlined a procedure for making a traditional land claim, and determined a phase of normalization of land tenure in the indigenous autonomous regions of the North Atlantic Autonomous Region (RAAN) and South Atlantic Autonomous Region (RAAS). 









Mayangna Leaders meet with children from Orphanage - Nicaragua
Data Analysis Awas Tingni - preparation for Court land defense, Mayangna
Mapping Matumbak, Mayangna

After this, we began with documenting the right to land amid the BOSAWAS Biosphere Reserve, for the purpose of assisting the indigenous to protect their lands, and also to help protect the rainforest (given a 18% rate of annual cutting by illegal colonists, compared to a -1% of forest cutting by indigenous).  This work went on for approximately 18 years, and as a result, all 9 territories of the Mayangna Nation now have legal title to their lands, in addition to four Miskitú territories. Other groups assisted by others, and some working on their own, were also titled, with some remaining pending. As such, my task has now turned to dealing with illegal colonists on indigenous lands, whereby lands are inalienable to indigenous peoples (not able to be sold, under national law 445).  Some indigenous territories have chosen to allow illegal colonists to remain (those who do not destroy the forest), while forcing others to leave - per Nicaraguan law 445, and 28).




Nan Greer with Brooklin Rivera - head indigenous representative Nicaragua; president YATAMA; Miskitu

Nan Greer & Noe Coleman - Current Nicaragua Indigenous Representative to MesoAmerican Group of Indigenous; leader, Matumbak - Mayangna
For approximately 5 years, I worked directly with Native Hawaiians and other ethnic groups on the islands of Hawai`i Nei, as they struggled to defend their right to farm lands where they grew taro/kalo (Colocasia esculenta) - the Hawaiian “staff of life” which is used in making poi. The U.S. Fish and Wildlife Service (USFWS) had been purchasing wetland areas used by traditional farmers as a method of protecting endangered wetland birds. However, in so doing, USFWS often utilized methods that were inconsistent with the local ecology, even threatening the wetland bird populations themselves. As such, I worked with farmers to document the wetland waterbird populations, in addition to tracking another 150 environmental variables with each farmer for over a period of a year and a half (the average growth period of taro).


Exchange between Native Hawaiian elder and Noe Coleman


Noe Coleman meets with students and faculty of Kauai Community College, Nan Greer, right

Taro Farmers: Alternative Wetlands Management

Fascinatingly, we found taro farmers provided habitat to more endangered wetland birds per acre than those found on the USFWS wetland refuge systems (USFWS data was acquired under the Freedom of Information Act). Consecutively, we collectively examined the economic viability of farming taro as an economically sustainable activity in Hawai`i, and as an alternative to USFWS management of wetland areas, found to be areas inhabited by Native Hawaiians going back to approximately 600 A.D.
After moving to California in 2014, I have worked with elders of a group of Cahuilla-Serrano in the state of California. This work focused more on the preservation of ethnoecological knowledge, in addition to protecting religious and spiritual connections to land.
Exchange between Leader Noe Coleman and Elder of Morongo Band of Mission Indians-Cahuilla-Serrano
Judean Rose: What steps have you taken toward having the Jewish people declared the indigenous people of Israel?
Nan Greer: Actually, a very unusual series of events has occurred in Israel this summer (2018). The Basic Law - Nation-State Law was signed and approved by Knesset. Combining the Declaration of the Nation of Israel with this recent Nation-State Law, we can see demonstratively, that the Jewish people have self-declared their status under state laws, as an indigenous people. 
Israel has declared its Jewish population as indigenous to the Nation of Israel and to the world through two critical documents:
     1) The Declaration of the Establishment of the State of Israel (Official Gazette: No. 1; Tel Aviv, 5 Iyar 5708, 14.5 1948), stating: “The Land of Israel was the birthplace of the Jewish people.  Here their spiritual, religious and political identity was shaped.  Here they first attained statehood, created cultural values of national and universal significance…”
     2) Basic Law-Israel as the Nation-State of the Jewish People.
“1-Basic principles:
A.    The land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.
B.    The State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination.
C.    The right to exercise national self-determination in the State of Israel is unique to the Jewish people.”
Israel has thus issued laws recognizing Jewish indigeneity. While not possessing the word “indigenous” in the Hebrew language, Israel has utilized all terminology under international law to declare itself indigenous to its homelands, the Nation-State of Israel. Through this self-declaration, Israel protects its indigenous population nationally as a distinct people. Israel also protects itself as an indigenous nation under the accepted working definition of the United Nations.

Signing UNDRIP

Israel is advised now to sign the U.N. Declaration of the Rights of Indigenous Peoples (UNDRIP), with reservations that under sovereignty, indigenous people do not lose their international indigenous status, where sovereignty represents the pinnacle goal of indigenous human rights.
The benefits of such a declaration include the protection of the Jewish people as indigenous under international law, in perpetuity, in addition to the permanent protection of their lands and rights to those ancestral lands, as inalienable. 
Consistent with historical approaches, it is possible that Arab-Muslim populations in Israel may attempt to thwart their declaration as an indigenous people in international circles. Though numerous resolutions have passed the U.N. General Assembly to Israel’s detriment, a self-declaration by Israel of Jews as indigenous is paramount to their protection. Considering the above-mentioned legislation declaring their indigeneity, and the great wealth of evidence supporting this Jewish indigenous status, to deny the Jewish ethno-religious group recognition in international circles, would be to go against U.N. laws and policy. 
Additionally, the declaration of Jews as indigenous in no way denies the right of other ethnic groups to their human rights, as such a declaration is without prejudice to other cultural groups. 

An Autochthonous Solution

By signing the UNDRIP with reservations, the opportunity exists to litigate indigenous rights of Jews to their homeland, sacred sites, and the upholding of their cultural traditions. Despite sovereignty, by signing the UNDRIP with reservations, Israel can further decisions and resolutions by the people of the land, for the land and its people - an autochthonous solution, without the control and colonial domination of other nation-states, politics, or international governance from outside its borders - respecting and strengthening Israeli sovereignty, and human rights.
With respect to recent decisions by UNESCO to deny Jewish right to its sacred and historical sites, Israel as a self-declared indigenous nation has the opportunity to request immediate redress and revocation of these malicious political motions by the U.N., demanding the respect of Jews to their own sacred sites and lands, as indigenous people. Israel is within its rights to demand UNESCO resolve their malicious discrimination, libel, slander, religious discrimination and hostility. Current antisemitic, anti-historic resolutions that their sacred sites are not theirs, changing their historical names and authoritative management, are contrary to laws afforded to indigenous people under the U.N. itself. 
(Next week, part two of this two-part series.)


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Tuesday, August 28, 2018




It is no secret that among the most influential countries in the world, the US stands apart in the strength of its friendship towards Israel.

This goes beyond politics.

video screenshot
Trump and Netanyahu at Press Conference. Screenshot of YouTube video
Even before the Trump administration, the US has supported Israel not only in terms of financial aid but also in terms of political backing in the UN.

Beyond that, polls have consistently shown a popular level of support for Israel among Americans that contrasts with the level of antisemitism and anti-Israel hatred increasingly evident throughout Europe.

One of the reasons for this bond may be the issue of terrorism. Both countries have been targeted by terrorists and continue to engage in "the war on terror." And both have turned to the law in order to engage more effectively in defending themselves from terrorist threats -- showing a willingness to go beyond International Humanitarian Law.

Two Categories in International Humanitarian Law: Civilians and Combatants


As far as IHL is concerned, there are 2 basic categories in war: combatants and civilians, with civilians getting special protection as non-combatants. This parallels the "conduct of hostilities paradigm" for dealing with combatants and the "law enforcement paradigm" for dealing with civilians during an armed conflict that we discussed in a previous post.

That "blur" between civilians and combatants in the case of the Gaza protests/riots gave rise to the disagreement in the report covered in that post as to what the appropriate response should be.

It also gives rise to the discussion of the possibility of a 3rd category, one not covered in the Geneva and Hague Convention nor recognized in International Law.

A Third Category: Unlawful Combatants


The concept of a third category, Unlawful Combatant, does not exist, strictly speaking, in IHL, but has been used by both the US and Israel. Neither the US nor Israel is a party to Protocol I to the Geneva Conventions, which does not recognize the status of unlawful combatant.

In the US, the term "unlawful combatants" was first used in a 1942 US Supreme Court decision in the case Ex parte Quirin, where the Supreme Court upheld the jurisdiction of a US military tribunal in the trial of 8 German saboteurs in the US during World War II:
By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. [emphasis added]
That definition of an unlawful combatant as someone "who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property" would seem to apply to today's terrorists in general and Palestinian terrorists in particular.

In a 2004 article, Judge Amnon Straschnov, a former IDF Military Advocate General writes that the distinction between punishment by a military tribunal as opposed to POW status is not the only difference between unlawful and lawful combatants:
Israel classifies terrorists the same way the Americans classify terrorists in Afghanistan and Iraq - as unlawful combatants. They are combatants but they do not have the privilege to be under the umbrella of international law because they do not adhere to the laws of war. They are not entitled to its protection since they have violated every possible provision of the laws of war and humanitarian law. They don't wear uniforms or abide by the conditions that entitle them to be POWS.

What measures are we taking against these unlawful combatants? If we have evidence and manage to bring them into custody, we bring them to trial before a court of law, a military court.

One new measure employed by Israel in the war against terror involves targeted interceptions, a subject of extensive debate. Once we define the terrorist as an unlawful combatant, he is a legitimate military target. It is allowed both legally and morally to fight and kill any terrorists for their notorious and ruthless terrorist activities, and we should not deal with them as protected persons. They are unlawful combatants, they want to come and kill us, and there is no question regarding the evidence. They've manifestly and openly declared their intentions. [Hat tip: Elder of Ziyon]
That is going beyond what International Humanitarian Law recognizes - as summarized by the ICRC:
That is the law regarding unlawful combatants. As long as he preserves his status as a civilian – that is, as long as he does not become part of the army – but takes part in combat, he ceases to enjoy the protection granted to the civilian, and is subject to the risks of attack just like a combatant without enjoying the rights of a combatant as a prisoner of war.
According to IHL, a civilian who takes part in hostilities, but not as part of the army,  loses his civilian status as far as protection and is not entitled to be treated as a POW if he is captured, but that is as far as it goes.

The issue of such a person seeking to deliberately target non-military targets and the lives of unarmed civilians is not singled out or addressed as justification for special action.

Unlawful Combatant vs International Law


The status of "unlawful combatants" under US law has been hotly debated, especially following 9/11 and has been challenged in terms of the detention and treatment of unlawful combatants in Guantanamo and the type of trial they are entitled to. Wikipedia traces the history and legal debate of the term "unlawful combatant."

There has been debate in Israel as well.

In 2004, The High Court of Justice in Israel decided in the case of Judgment on Preventative Strikes Against Terrorists.

In laying out the position of the Government of Israel, the court made clear that what was at stake was more than just a question of what to do in the event the terrorist was captured:
the State asked us to recognize a third category of persons, that of unlawful combatants. These are people who take active and continuous part in an armed conflict, and therefore should be treated as combatants, in the sense that they are legitimate targets of attack, and they do not enjoy the protections granted to civilians. However, they are not entitled to the rights and privileges of combatants, since they do not differentiate themselves from the civilian population, and since they do not obey the laws of war. Thus, for example, they are not entitled to the status of prisoners of war. The State's position is that the terrorists who participate in the armed conflict between and the terrorist organizations fall under this category of unlawful combatants. [emphasis added]
In relaying his decision, Justice Aharon Barak quotes from a decision in the case of interrogation:
We are aware that this judgment of ours does not make confronting that reality any easier. That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by her enemies are open. At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome her difficulties. 
photo
Aharon Barak. Source: Wiki Commons. Credit: Jonathan Klinger

Repurcussions


In the US, criticism has led to using the criminal justice system, instead of military tribunals, for trying unlawful combatants.

In 2007, James Taranto wrote that this was a mockery of International Law, not a defense of it:
By granting constitutional protections to detainees, Mr. Powell’s proposal would endanger the lives of American civilians. It would also afford preferential treatment to enemy fighters who defy the rules of war. This would make a mockery of international humanitarian law.

In the long run, it could also imperil the civil liberties of Americans. Leniency toward detainees is on the table today only because al Qaeda has so far failed to strike America since 9/11. If it succeeded again, public pressure for harsher measures would be hard for politicians to resist. And if enemy combatants had been transferred to the criminal justice system, those measures would be much more likely to diminish the rights of citizens who have nothing to do with terrorism.

By keeping terrorists out of America, Guantanamo protects Americans’ physical safety. By keeping them out of our justice system, it also protects our freedom.
In Israel, it is also not clear that limiting Israel's options in defending itself against terrorism will have the desired effect.

The admission that the court is knowingly limiting Israel's options in its own war on terror is not made less disturbing by the claim that Israel - as a democracy - gains some kind of moral victory "at the end of the day" by "preserving the rule of law."

Neither is it clear that this argument would have any compelling influence on those terrorist groups who plot to kill Israeli civilians.

The wisdom of releasing terrorists in return for Israeli hostages has been fairly well debunked.
The wisdom using WWII definitions of warfare over 70 years later is becoming increasingly questionable, especially when we see Europe in denial over the terrorist attacks directed against it.




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Tuesday, August 21, 2018



According to Hamas, terrorism is not just a means -- it is a right.

Saleh Armouti, an MP in Jordan's House of Representatives last year, went a step further, claiming that the UN supported armed resistance, in general -- and terrorist attacks in particular:

[It was] the legitimate right of the liberated prisoner Ahlam Tamimi [to] resist the occupier, as the United Nations laws stipulate the right to self-determination, as ruled [by] international legitimacy [as] the right to resist the occupation.
Tamimi is the mastermind of the Sbarro massacre that murdered 15 civilians (including 7 children and a pregnant woman) and wounded 130.

Is it actually possible that the United Nations, which is supposed to be an agent for world peace, actually recognizes the right to blow people up?

In 1974, the UN General Assembly passed a resolution which:
3. Reaffirms the legitimacy of the peoples' struggle for liberation form colonial and foreign domination and alien subjugation by all available means, including armed struggle;

7. Strongly condemns all Governments which do not recognize the right to self-determination and independence of peoples under colonial and foreign domination and alien subjugation, notably the peoples of Africa and the Palestinian people;
The phrase "armed struggle" is repeatedly used in the 1968 Palestinian National Charter, a copy of which is conveniently carried on the UN website.

In 1978, the UN General Assembly went further. "Armed struggle" was not just one option included among others, but that it was a particular option to be used. Also, in 1978 the word "occupation" was used - a word that was not used at all in the 1974 resolution.


And if the Palestinian goal in that struggle was not clear, in 1980, Israel circulated a copy of the “political programme” of Fatah, which uses the term "armed struggle" and "armed revolution" -- with the specific goal of "the liquidation of the Zionist entity" mentioned 3 times.

The ambivalence the UN has with the whole idea of "armed struggle" is revealed in a UN press release in 2005 which noted the difficulty it was having with what qualified as terrorism and what would be exempted. Among the disagreements was "whether the exemption should also cover armed resistance groups involved in struggles against colonial domination and foreign occupation."

Last year, I wrote about how not only was this adoption of "armed struggle" antithetical to the UN Charter but that the idea of Jews - indigenous to the land and predating the Arab colonization by over a millennium - being colonial and alien is absurd.

But here is another angle.

It is popular to point out the obligations of an occupying power.
But what about the obligations of the people who are claimed to be occupied?

In his book, The International Law of Belligerent Occupation,Yoram Dinstein writes:
There is a widespread conviction that the civilian population in an occupied territory has a right to forcibly resist the Occupying Power. This is a misconception that must be dispelled. In reality, LOIAC [Law of International Armed Conflict] allows civilians 'neither to violently resist occupation of their territory by the enemy, nor to try to liberate that territory by violent means'. As a Netherlands Special Court pronounced in the 1948 Christiansen trial:
the civilian population, if it considers itself justified in committing acts of resistance, must know that, in general, counter-measures within the limits set by international law may be taken against them with impunity. [emphasis added]
Dinstein did not make this up.

The italicized text above refers to "How Does Law Protect in War?", Volume 1: Outline of International Humanitarian Law, published by the International Red Cross:

From the point of view of IHL [International Humanitarian Law], civilians in occupied territories deserve and need particularly detailed protecting rules. Living on their own territory, they come into contact with the enemy independently of their will, merely because of the armed conflict in which the enemy obtains territorial control over the place where they live. The civilians have no obligation towards the occupying power other than the obligation inherent in their civilian status, i.e., not to participate in hostilities. Because of that obligation, IHL allows them neither to violently resist occupation of their territory by the enemy nor to try to liberate that territory by violent means. (Part 1, Chapter 8:IV)





The rules that apply to an occupying power appear counter-intuitive, unless you take into account that international law is taking the long view, namely not to jeopardize a potential return to the status quo:
[The occupying power's] legitimate interest is to control the territory for the duration of the occupation, i.e., until the territory is liberated by the former sovereign or transferred to the sovereignty of the occupying power under a peace treaty. IHL is neutral on jus ad bellum issues [whether a war is just] and shows no preference for either solution, but international law tries to ensure that no measures are taken during the occupation which would compromise a return to the former sovereign. [emphasis added]

Even if one were to argue that Gaza and the West Bank were occupied, the fact is that in accordance with UN Resolution 242, Israel committed itself to return territories - though not all territory won in 1967 - in accordance with its security needs, and has done so.
There are legal grounds - based on precedent - for saying that Gaza, in fact, is not occupied.

Similarly, the existence of a Palestinian Arab government in control of the West Bank, as detailed in Oslo II Articles XVII-XXI supports the claim that it is not under occupation either.


As for Israel itself, the Hamas claim that Israel is occupied "Palestinian" land is refuted by the fact that Jews have lived on the land uninterruptedly for over 3,000 years. Far from being a foreign, alien or colonial power (a term far more fitting the Muslims who invaded in the 7th century), it was the foreign Arabs from outside then-Palestine who chose to attack and lost - creating the issues that persist today.

Hamas terrorists are notoriously unreliable interpreters of international law.


Besides the fact that the idea of "armed struggle" adopted by the UN does not imply random attacks on unarmed civilians, the Geneva Convention makes clear that "the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.

Endangering the lives of Gazans by using them as human shields while targeting unarmed Israeli civilians who are clearly not taking part in any hostilities is an obvious violation of international law, and proves the lie to Hamas claims of a right to "armed struggle" which clearly is nothing less than terrorism.


The fact the UN gives full-throated support to "armed struggle" but cannot see its way clear to delineate what is, and what is not, terrorism is an indictment of its corruption by undemocratic states and of how far it has drifted from the international law it claims to uphold.




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Tuesday, July 10, 2018



What would we do without the European Court of Human Rights?

The European Court of Human Rights is an international court that was established by the European Convention on Human Rights, an international treaty that defends human rights. The European Court hears cases alleging that a contracting state has breached one or more of the human rights established in the Convention and its protocols.

logo
Logo of the European Court of Human Rights. Fair use


But human rights are human rights -- regardless of where you live.

A couple of months ago, Akiva Eldar wrote an article in Al Monitor, Compromise is possible on Palestinian right of return, demonstrating there is no Palestinian "right of return" according to international law:
After deliberating on a petition by Greek Cypriot refugees, the European Court of Human Rights ruled in March 2010 that claiming a certain land or property as “home” is insufficient to establish a right. An overwhelming majority of the 17 judges agreed that given that 35 years had passed since the petitioners lost their property when Turkey invaded northern Cyprus in 1974, and the local population had changed, the claimants were entitled to compensation in cash, but not necessarily in land. The judges warned that rectifying an old injustice could result in a new injustice. One can infer that UN Resolution 194 of 1948, stipulating that a refugee can choose between a return to Israel and compensation, does not grant every refugee a personal right to return. [emphasis added]
Going a step further, we can see the options are not even that narrow.

The language of UN resolutions subsequent to Resolution 194 shows that even according to Resolution 194 -- the return of Palestinian Arab refugees to their homes is not a right, but rather one of the available options.

According to UN Resolution 194, in the second paragraph of Article 11:
Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations (emphasis added)
Is the UN actually suggesting repatriation AND resettlement or are those two different things?

Check out UN Resolution 393, Article 4:
Considers that, without prejudice to the provisions of paragraph 11 of General Assembly resolution 194 (III) of 11 December 1948, the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential in preparation for the time when international assistance is no longer available, and for the realization of conditions of peace and stability in the area; (emphasis added)
"Repatriation" by definition means to send refugees back to their original home.
"Resettlement" here means to settle them in any home -- not necessarily in their original land -- rather than leave them as refugees.

Similarly, UN Resolution 394:
Calls upon the governments concerned to undertake measures to ensure that refugees, whether repatriated or resettled, will be treated without any discrimination either in law or in fact. (emphasis added)
And UN Resolution 513, according to which the UN General Assembly:
Endorses, without prejudice to the provisions of paragraph 11 of resolution 194 (III) of 11 December 1948 or to the provisions of paragraph 4 of resolution 393 (V) of 2 December 1950 relative to reintegration either by repatriation or resettlement...
The point is that the United Nations itself clearly indicates that there is no absolute Palestinian right of return and that while there was a possible option to return back in 1948, return back then was merely one possibility.

Now along comes the European Court of Human Rights and makes the point that "claiming a certain land or property as “home” is insufficient to establish a right".

But that is not the only European Court decision that supports Israel's position.

In 2015, Marko Milanovic, an associate professor at the University of Nottingham School of Law, wrote that European Court Decides that Israel Is Not Occupying Gaza.

The case deals with people displaced by a conflict who are later unable to return to their property and in this case denied the right to return to their village of Gulistan, located in the territory of Azerbaijan, but close to an area of conflict. The Azerbaijani government claimed that the village was not under the actual control of Azerbaijan and was inaccessible to any civilians.

Azerbaijan went so far as to claim:
The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation. (emphasis added)
The European Court went to work on defining "occupation":
Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter “the 1907 Hague Regulations”) defines belligerent occupation as follows:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state(1) . The requirement of actual authority is widely considered to be synonymous to that of effective control.

Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation(2) , i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice(3) . (emphasis added)
Milanovic points to this key paragraph:
144. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, “actual authority” being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan.
He then notes:
See what I meant? Replace “Gulistan” with “Gaza”, and there you have it! In fact, I’m pretty sure that this is at least one judgment of the European Court that Israeli governmental legal advisors will be citing all the time, whenever the issue of Gaza’s occupation is brought up (and good for them).
Actually, this is the second ruling of the European Court of Human Rights that Israel can cite. We already saw that the court also ruled that a claim to land or property is not a right.

Who knew that the European view of international humanitarian law could be so supportive to Israel's position?




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