International Law Is Not Keeping Up With How Hamas Exploits Human Shields (Daled Amos) (UPDATED)

Hamas terrorists may very well have elevated the exploitation of human shields to an art. For years, they have taken advantage of the civilian population in Gaza by hiding among them, while targeting the civilian population of Israel with their rockets.

Now Hamas has done something new. The media would have you believe that Gazans in general, and Hamas in particular, are experimenting for the first time with peaceful protests, reminiscent of Martin Luther King and Selma. In reality, what is new is that Hamas has been using tens of thousands of Gazans -- including children -- as cover while trying to infiltrate Israel, both on land by breaching border fences and by air using kites carrying Molotov cocktails.

Palestinian child throwing rocks at IDF forces and the Gaza security fence during Gaza border riot.
Source: IDF Spokesperson's Unit)

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What does the ICRC say about civilians rioting in support of a military objective? (Daled Amos)

Someone limited to just the media coverage of the "Gaza March," could be forgiven for thinking that the issue of the IDF's Rules of Engagement (RoI) during those riots is e a simple matter of math - most of the Gazans rioting at Israel's border are civilians, so that should be the guiding rule for Israel's response.

But it is not that simple.

The International Committee of the Red Cross (ICRC) has a report that illustrates that point. In 2012, the ICRC convened a meeting of experts on The Use of Force in Armed Conflicts: Interplay Between The Conduct of Hostilities and Law Enforcement Paradigms. It examines the connection between the "conduct of hostilities paradigm" for dealing with fighters and the "law enforcement paradigm" for dealing with civilians during an armed conflict.

The report presents scenarios, along with the differing opinions of experts on how force should be used. The expert opinions are presented anonymously.

Flag of the ICRC

One of the case studies presented is "Riots in armed conflict situations":

In the context of a non-international armed conflict, a demonstration to protest against the governments’ repression of the insurgency takes place. More than a hundred people gather on the main street of the capital, where government troop are based. Initially, the protest is peaceful. After some attempts by the government army to disperse the crowd (e.g. with a loudspeaker), the crowd becomes more aggressive and starts to throw rocks at the soldiers. At the same time, fighters take advantage of the riot and attack the soldiers with rifles. Some contend that fighters instrumentalized the population and incited it to demonstrate in order to hide in the crowd and to conduct an attack.

This roughly corresponds to the situation Israel is facing now.

According to the report, as long as the actions of the civilians do not cross the required threshold of harm, the "law enforcement" paradigm applies as opposed to "conduct of hostilities." The vast majorities of experts believed that it was best to combine the two paradigms into a parallel approach: apply law enforcement to the civilians and conduct of hostilities to the fighters.

Sounds so simple - even a journalist could have come up with it.

But keep in mind that according to those ICRC experts, incidental damage among the civilians would not be prohibited -- as long as the force used is not excessive in relation to the direct military advantage that is anticipated. In other words, as long as disproportionate force is not used.

And we already know what a simple issue that is.

Outside of that, rioting civilians, unlike fighters, cannot be considered to be directly participating in hostilities. Therefore the rioting civilians cannot be targeted using the "conduct of hostilities" paradigm and under International Humanitarian Law, the presence of fighters does not change the overall civilian nature of the group. Again, it sounds straightforward.

However, according to footnote 70 of the report:

One expert expressed the view however that, in some wholly exceptional cases, rioting civilians can be considered as directly participating in hostilities if they are performing acts of violence which are specifically designed to harm directly the State having to face the riot in support of its enemy. This would be the case, for example, if a riot is led by the enemy in order to destroy the military equipment of the State’s armed forces or in order to divert attention of the armed forces and conduct a military operation in a nearby village. In this exceptional situation, the rioters are actually civilians directly participating in hostilities and become targetable under a conduct of hostilities paradigm.

According to this opinion, the rioting civilians can be considered to be directly participating in hostilities:

• if it is determined that a riot has as its goal to conduct a military operation in a nearby village
• if the violence is designed to harm the State facing the riots.

The first case arguably is the current case of the Gaza riots, where one of the clear goals is to infiltrate the border fence...



...and if possible reach the Israeli communities nearby.

Source: IDF on Twitter

The second case describes the latest attempts to use kites to carry Molotov cocktails across the border and set fires in Israel.

Kite with Molotov cocktail being flown from Gaza into Israel

In such a situation, according to this opinion, because the civilians are directly participating in hostilities, the paradigm of "conduct of hostilities" and not law enforcement applies - and those civilians taking those steps can be targeted.

Another wrinkle is that according to International Law, as quoted in the report, the presence of civilians does not provide carte blanche for the entire group to act with impunity: “[t]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.”

Instead, if rioting civilians commit acts of violence, then force may be used under "law enforcement" paradigm, which would allow an escalation of force.

On top of all that, the experts who preferred to combine both paradigms -- applying the rules of law enforcement to civilians and of war to fighters -- found their own solution to be impractical:

• How could soldiers distinguish between fighters (who might not distinguish themselves), civilians directly participating in hostilities and rioters who are not directly participating in hostilities?
• How could soldiers be expected to apply two different paradigms at the same time and place?
• Moreover, in most situations of armed conflicts, belligerents may not have snipers able to target surgically fighters among the crowd and thus targeting them may cause excessive incidental civilian losses in violation of IHL.
• Also, situations of civilian unrest in the context of an armed conflict can be highly volatile and can turn into actual armed clashes amounting to hostilities. 

And then there is the issue of self-defense.

Thus, even if a fighter not using lethal force could be identified and targeted, armed forces would be instructed not to do so because of the risk to cause excessive incidental civilian losses. Instead, if the fighter is using force, he might be targeted under self-defence rules, by a sniper for example

These are just a few of the variables involved, according to the ICRC report.

In writing about The Blurred Distinction Between Armed Conflict and Civil Unrest: Recent Events in Gaza, Liron Libman, former Chief Military Prosecutor and Head of the International Law Department in the IDF notes:

"The purpose of IHL is to strike a balance between military necessity and humanitarian concerns during an armed conflict. Rules that ignore legitimate military needs are not likely to be sustainable."

The idea that International Law looks out for military necessity, and not only humanitarian rights, is lost on journalists and those who freely volunteer their personal opinion of international law as a club to beat the IDF whenever a military situation arises.

In any case, it has been reported that the IDF Chief of staff has ordered a probe will address the issue of civilian casualties.

The ICRC report illustrates that the issues are not nearly as simple and straightforward as the media has been presenting it. Maybe the proposed probe will help to further clarification of the issues involved.

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The ICRC did the exact opposite of what was needed in Gaza in its meeting with Hamas

The New York Times eagerly reported in 2015:

GAZA CITY — A new training regimen for fighters in Hamas’s armed wing employs slide presentations and a whiteboard rather than Kalashnikov rifles and grenades. The young men wear polo shirts instead of fatigues and black masks. They do not chant anti-Israel slogans, but discuss how the Geneva Conventions governing armed conflict dovetail with Islamic principles.

The three-day workshop, conducted last month by the International Committee of the Red Cross, followed numerous human-rights reports accusing both Israel and Hamas, the Islamist group that controls Gaza, of war crimes in their devastating battle last summer, and came as the International Criminal Court prosecutor conducts a preliminary inquiry into that conflict.

The Red Cross developed its program in conjunction with Islamic scholars several years ago, but ramped it up after last summer’s deadly battle. So far this year, it has conducted six sessions for a total of 210 fighters from Hamas’s Izzedine al-Qassam Brigades and two other Gaza armed groups. Another workshop is scheduled for this week.

...Red Cross leaders say they have seen an increasing commitment from Hamas leaders and linemen alike, if only because they now consider their international image a critical component of their struggle.

Mamadou Sow, who heads Red Cross operations in Gaza, said that in April he presented a critique of Hamas’s conduct during the 2014 hostilities to its top political and military leaders, and that they “welcomed it” and “indicated that they are a learning organization.”

“For the first time,” said Jacques de Maio, director of the Red Cross delegation in Israel and the Palestinian territories, “Hamas is actually, in a private, protected space, expressing a readiness to look critically at a number of things that have an impact on their level of respect for international humanitarian law.”

He added, “Whether this will translate into something concrete, time will tell.”

Hamas' actions are predictable, but only to those who understand the honor/shame mentality.

Hamas isn't interested in adhering to international law because it is the right thing to do.Hamas is interested in appearing to adhere to the minimal standards of international law to avoid being shamed.

Which brings us up to yesterday:

The head of the International Committee of the Red Cross on Tuesday discussed the fate of two Israeli civilians and the remains of two Israeli soldiers believed to be held by Hamas in a meeting with the leader of the Islamic militant group.

Officials on both sides said the status of the missing Israelis was one of a host of issues discussed in the meeting between ICRC President Peter Maurer and Yehiyeh Sinwar, the Hamas leader in Gaza.

A Hamas official said that Maurer "heard the movement's firm position" Tuesday. The official spoke on condition of anonymity because the meeting was closed.

Sinwar has said Hamas will not release any information about the missing Israelis until Israel frees 54 Palestinian prisoners who were re-arrested after being released in a 2011 prisoner swap.

Hamas has successfully learned the lessons taught by the ICRC. It is using the language of international law to insist that its prisons adhere to some sort of standard, but of course it will not allow the Red Cross to visit any actual Israeli prisoners.

The fundamental issue that Hamas has managed to obfuscate is that these "prisoners" are not prisoners - but hostages. The reason Hamas didn't allow Maurer to speak with the Israelis who for whatever reason ended up in Gaza is because it wants to use them as bargaining chips to get Israel to release terrorists and achieve other goals, and even the promise of showing proof of life is something that Hamas sees as something to be bartered..

Hostage-taking, of course, is a grave violation of international law. But Maurer, as far as we can tell, never uttered the word "hostage" to Hamas - but Hamas pretends that these Israelis are prisoners of war, or criminals.

If Maurer would have spoken out loud, ahead of the meeting, about how these Israelis are hostages and hwo the very act of demanding something for their return is illegal under international law, he could have made a difference - because Hamas would have been shamed and it seeks to avoid shame. But instead Maurer treated Hamas with respect (=honor) and Hamas now has less incentive to adhere to international law.

For Hamas and other members of the shame culture, it is all about appearances, not ethics. Maurer's meeting with Sinwar enhanced Hamas' standing in its eyes - photos of the meeting are featured in Hamas' website - but the issues are only meant to be manipulated to Hamas' advantage, not to be taken seriously.

For Hamas to change, it has to be shamed. The ICRC did the opposite, making Sinwar look like a world leader while getting nothing in return.

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Of course Israel has the right to install metal detectors under international law

Saeb Erekat, among others, claim that Israel's placing metal detectors at all the entrances to the Temple Mount (it already had them at the single entrance for non-Muslims) is a violation of international law.

For example:

Palestinian Authority Prime Minister Rami Hamdallah on Tuesday called on the international community to make Israel remove metal detectors from the entrances to the Temple Mount.
“We call on the international community and the Arab and Islamic states to take responsibility for... stopping the occupation’s measures that are in contravention with all laws, agreements and international charters,” he said.

Even if one regards parts of Jerusalem as occupied, the Fourth Geneva Convention very clearly allows the occupying power wide latitude in what it deems necessary for security measures. In fact, security measures override many other rights mentioned in Geneva.

The most relevant section is Article 27, which reads in full:

Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.
However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

 The ICRC's 1958 commentary on the last paragraph says:

The various security measures which States might take are not specified; the Article merely lays down a general provision. There are a great many measures, ranging from comparatively mild restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or even assigned residence and internment. 

A great deal is thus left to the discretion of the Parties to the conflict as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned. As has been seen, those rights must be respected even when measures of constraint are justified.

Note that the mild restrictions enumerated by the Convention are far more severe than requiring people to walk through a metal gate.

There are absolutely no restrictions of any fundamental rights of any persons - except for Jews who are now banned from visiting the Temple Mount because some uttered prayers out of earshot of any Muslims.

As always, the Palestinians and their allies are perverting international law.

And as always, the media's vaunted "fact checkers" don't even bother doing their jobs when the lies don't offend them.

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The fifty year plan to turn Israeli Jews into war criminals

The world claims that Israel violates the 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 original intention of this paragraph was described by the International Committee of the Red Cross in 1958 this way:

This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

They are referring in part to the German Generalplan Ost, a far reaching plan to colonize most of Europe and to expel (or murder) anyone who the Germans felt were inferior - and replace them, forcibly if necessary, with Aryans.

Only after 1967 did anyone think that this minor paragraph in a major article about forcible transfers of populations could apply to people who wanted to - voluntarily - return to the land of their ancestors in territory that was never under the legal sovereignty of a state.

For fifty years, the anti-Israel community of nations have been steadily nudging international law to be interpreted in a way that Israel's actions of allowing Jews to voluntarily move to ancestral lands has gone from admirable to a war crime.

The first thing they needed to do was to define Judea and Samaria  as "occupied territory," since Geneva only refers to occupied territory. They do this using a neat trick: since no one doubts that the provisions of Geneva are humanitarian and meant to protect the existing population, they ignore the official definition of "occupied" as defined in the Hague Conventions where the occupied territory must belong to a "state."

They say that the laws of occupation must apply anyway, because the people in the territory must be protected whether they are residing in a state (a "high contracting party") or not.

Israel always accepted that it would uphold the humanitarian provisions of Geneva for any non-citizen Arabs who live under its rule, but building houses and communities - nearly always away from Arab population centers - do not violate any humanitarian rules of Geneva.

Israel's enemies claim that Geneva applies to the territories in total, meaning that they have won the argument that the territories are occupied,  and therefore they try to apply the paragraph about "transfer" to Jews who move voluntarily. The international community has acquiesced to this false interpretation of Geneva because nothing is more important than humanitarian considerations, so they say that Geneva must apply and ignore the fact that, strictly speaking, it doesn't.

But that is still problematic to Israels enemies because it is obvious that this was not the intent of Geneva's framers and paragraph 6 was a bit vague.

So the Additional Protocols for the Geneva Conventions were drafted in 1977 and they elevated this violation of international law into a "grave breach:"

4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol:
(a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention;

Note how Israel's enemies now placed a nation's transfer of its own population before the much worse issue of forcible deportation. This is language that was directed at Israel and only Israel.

But there is still the problem of defining "transfer." In Geneva Article 49, the term is used seemingly only in reference to involuntary transfer, as every other use of that term in that article is clearly referring to deportations or forcible transfer.

When the International Criminal Court was being created, the Arab nations seized the opportunity to upgrade Israel's "crime" once again. The Rome Statute lists as war crimes things like murder, torture, kidnapping, intentionally attacking civilians - and it added one more that had never been considered a war crime in history:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.

Arab states insisted on adding the "directly or indirectly" terminology and the drafting committee caved to pressure. The only target of this was, again, Israel, which would now be considered criminal for not stopping Jews from moving to their historic lands.

This is only one of many examples of how haters of Israel have managed to move the goalposts of international law, specifically against Israel and only Israel.

The sober jurists and arbiters of international law have allowed themselves to be manipulated, between decades of propaganda and laziness at deciding to "compromise" with those who want to destroy Israel, into believing that allowing Jews to houses are war crimes on par with directly and purposefully attacking civilians.

The biggest irony of all is that Geneva IV Article 49 is concerned with the huge human rights violations of forcible mass transfer of populations against their will - and yet the world is steadily moving towards using that very same human rights law to forcibly transfer hundreds of thousands of Jews out of their homes, many of whom have lived there all of their lives. It is not just a misinterpretation of Geneva - it is a perversion of Geneva. And it is only being directed at Jews. (Thousands of Israeli Arabs have moved over the Green Line without any peep of protest by the international community.)

Perhaps the biggest perversion of all is that these legal instruments, in a sense, equate Israel with Nazi Germany. Many of the Geneva Conventions were specifically written to counter the worst kinds of human rights violations done by Nazi Germany in order to ensure that they never happen again. Now the same instruments of international law are singling out the Jewish State as a paradigm of what is considered evil - laws are being passed and approved by the entire international community specifically to target the primary victims of the Nazis whose actions led to Geneva to begin with.

In this case, they aren't trying to ensure that these supposed war crimes never happen again. After all, there are settlers being implanted in Crimea, Western Sahara. Northern Cyprus and elsewhere, all without a peep from these supposed humanitarians who created these laws. The purpose of these laws have been and remains to delegitimize Israel and only Israel.

The new UN resolution 2334, although not international law, is simply another in a series of never-ending actions that are all intended to do one thing: to twist, manipulate and create an international legal framework against Israel and only Israel.

Between their own latent antisemitism, their fear of Arab terror, and their lack of moral principles, the international community allows and even encourages these perversions.

After all, they can comfort themselves by saying that this entire fifty year legal war against Israeli Jews is all "legal."

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EoZTV: Legal expert Alan Baker on Israeli "occupation" and settlements (video)

During my visit to Israel, I had the opportunity to ask Ambassador Alan Baker, an expert on international law, if he could summarize his position on the legality of Israel's presence in Judea and Samaria.

We've noted most of the arguments before but it is nice to have them confirmed.

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HRW, UN and B'Tselem demand that Israel VIOLATE international law

Human Rights Watch issued a report:

The Israeli military unlawfully demolished at least 39 structures in Bedouin Palestinian communities in the West Bank on August 17 and 18, 2015. The demolitions left 126 people homeless, 80 of them children. Four of the communities where the demolitions took place are targeted by an Israeli government plan to forcibly “relocate” 7,000 Bedouin.

Such destruction of private Palestinian property and the forcible transfer of Palestinians violate Israel’s human rights obligations and the laws of occupation. The Fourth Geneva Convention prohibits an occupying power from destroying private property or forcibly transferring the protected population unless strictly necessary for military reasons. Israel does not claim the demolitions or planned relocations are justified for military reasons.

B'Tselem also says that this is against international humanitarian law. The UN had stated that previously and I fisked that UN statement.

What does international law say?

For the purposes of this post, we will assume that Israel is occupying Area C of Judea and Samaria, which is the legal basis of Israel's Supreme Court decisions, even though it never ruled on that question specifically.

The law prohibiting confiscating private property comes from the Hague Conventon IV article 46, which states flatly "Private property cannot be confiscated."

But these buildings weren't built on private property. They were illegally built on public state lands.

What does the Hague Convention say about the legal obligations of an occupying power?

That is in article 43:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Under international law, Israel must do everything possible to respect the laws that were in place before the occupation - meaning the laws from the previous Jordanian and British and Ottoman governments.

And under none of those sets of laws would illegal building on state be considered to magically become private property and protected under the law from being demolished. That idea is nonsensical; Imagine what the New York City government would do if people built buildings in Central Park and then claimed to be homeless and forced to relocate when they were demolished.

HRW is clearly and knowingly lying when they use the "private property" argument.

B'Tselem is a bit more knowledgeable about international law than Human Rights Watch and doesn't try to use HRW's clearly incorrect legal reasoning. Instead, it only argues HRW's second reason, saying that "These expulsion plans run counter to the provisions of international humanitarian law, which prohibit the forcible transfer of protected persons, unless carried out for their own protection or for an imperative military need." But again it is absurd to say that legally demolishing buildings built without permits is "forcible transfer." On the contrary, it is enforcing the law. The alternative is to give anyone the right to squat on public lands, which is clearly absurd.

There are exceptions where the occupier may override pre-existing laws for security or other purposes, for example to strike down pre-existing laws that violate human rights or otherwise contradict the provisions of "public order and safety." The full extent of that permission is argued by various legal scholars. But as far as I can tell, no one says that Israel is mandated to change existing Ottoman/British land and zoning laws - and to do so without good reason would be a violation of international law! 

Yet this is exactly what these NGOs are demanding that Israel do - to uproot or ignore pre-existing land laws.

Perhaps these organizations have a point in that Israel is not enforcing the pre-existing laws equally between Jews and Arabs in Judea and Samaria. In this particular case, however, the illegal squatters on state land never even bothered to submit applications for building permits or to submit a master plan for rezoning areas for residential use. The reason, of course, is because these structures were meant as a land grab and not as a declaration of private property rights. The Bedouin knew very well that their buildings were illegal, and Jews who would build random structures on state land would be treated the same way.

Yet even if  you claim that Israel's application of zoning laws is not done evenly, "it's not fair" is not a principle of international law that is being violated.

One argument that may be made in favor of Israel's changing the zoning laws could perhaps come from an expansive reading of "public order and safety" in the Hague Conventions, a reading that Israel's Supreme Court in fact has used, translating the original French "la vie publique" as ‘civil life’ which is much more than "public order." Yet even then, that does not mean that Israel is obligated to go so far as to change existing laws. As legal scholar Marco Sasson writes:

Under the general rule, as its qualifications ‘all measures in his power’ and ‘as far as possible’ confirm, public order and civil life are not results that must be guaranteed by an occupying power, but only aims it must pursue with all available, lawful and proportionate means. One may argue that the required standard of action is below that with which human rights instruments expect states to comply in fulfilling human rights, in particular social, economic and cultural rights, since, as discussed below, the occupying power is not sovereign and its legislative powers are limited.

There is obviously a tension between the Hague provisions to ensure public order and civil life and to "respect, unless absolutely prevented, the laws in force in the country." But to demand that the latter, written in very strong language, trumps the former, and not doing so is a violation of international law, is clearly wrong.

The UN, B'Tselem and HRW are not telling the truth about international law, and they are twisting it deliberately to target Israel.

 (Israel's Supreme Court does not recognize forcible transfers within occupied territory to be against the Geneva Conventions prohibition on "forcible transfer," but the ICRC does, so we will not argue that point here.)

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Israel is not violating international law in Gaza - part 1: Principle of Distinction

I have described how Hamas is violating at least 19 principles of international law in the current fighting.

Now, is Israel?

The criticism most often given of Israel's actions is that it is violating the "principle of distinction." The Geneva Conventions Additional Protocol 1, article 52, states it this way:

1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Many countries, when they ratified this article, clarified it to ensure that collateral damage is not covered by the first sentence of paragraph 2. So, for example, Canada wrote:

It is the understanding of the Government of Canada in relation to Article 52 that ...the first sentence of paragraph 2 of the Article is not intended to, nor does it,deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.

Italy, Australia, the UK, France and New Zealand added similar language (CIHL II para. 83-91)

Logic dictates that it cannot be otherwise. If these caveats aren't in place, then anyone can make any military target immune from attack placing a civilian there, or placing the target in a house or church or hospital that is still used as such. So, for example, Australia's Defence Force Manual states:

The presence of noncombatants in or around a military objective does not change its nature as a military objective. Noncombatants in the vicinity of a military objective must share the danger to which the military objective is exposed.

Note that we are not saying that the existence of civilians at a military target can be ignored; that is part of the Proportionality discussion that will be forthcoming. But clearly international law allows the attack on military targets even if there are some civilians there.

Who determines whether something is a military target or not?

It is not reporters, or eyewitnesses, or residents of nearby houses, or human rights organizations. That decision is given to the military commander, based on the best available information at the time.

So, for example, The Military Manual of the Netherlands says that “the definition of ‘military objectives’ implies that it depends on the circumstances of the moment whether an object is a military objective. The definition leaves the necessary freedom of judgement to the commander on the spot."

Sweden's IHL manual states "it is up to the attacker to decide whether the nature, location, purpose or use of the property can admit of its being classified as a military objective and thus as a permissible object of attack. This formulation undeniably gives the military commander great latitude in deciding, but he must also take account of the unintentional damage that may occur. The proportionality rule must always enter into the assessment even though this is not directly stated in the text of Article 52." (para. 335, 338)

The military commander is not only concerned with the safety of the civilians in the area. The commander is also concerned with the safety of his or her own troops. The US Naval Handbook says "Military advantage may involve a variety of considerations, including the security of the attacking force." (para. 339)

Civilian sites can become valid military objectives. So, for example, Australia’s Defence Force Manual lists among military objectives “objects, normally dedicated to civilian purposes, but which are being used for military purposes, e.g. a school house or home which is being used temporarily as a battalion headquarters”. The manual specifies that "For this purpose, 'use' does not necessarily mean occupation. For example, if enemy soldiers use a school building as shelter from attack by direct fire, then they are clearly gaining a military advantage from the school. This means the school becomes a military objective and can be attacked." (para. 687)

Israel's Manual on the Laws of War goes even further to protect civilians: (para 694)

A situation may arise where the target changes its appearance from civilian to military or vice versa. For instance, if anti-aircraft batteries are stationed on a school roof or a sniper is positioned in a mosque’s minaret, the protection imparted to the facility by its being a civilian object will be removed, and the attacking party will be allowed to hit it . . . A reverse situation may also occur in which an originally military objective becomes a civilian object, as for instance, a large military base that is converted to a collection point for the wounded, and is thus rendered immune to attack.

However, attacks may not be indiscriminate.

It is ultimately up to the commander to determine the nature of the specific, fluid situation. Everything hinges on his or her intent - not on the judgment of other observers and not on finding out better information in hindsight. As stated by Rüdiger Wolfrum and Dieter Fleck in The Handbook of International Humanitarian Law, "The prerequisite for a grave breach (of IHL) is intent; the attack must be intentionally directed at the civilian population or individual civilians, and the intent must embrace physical consequences."

In order to find that the commander has committed a war crime, the bar is set quite high. ICRC commentary on art 85 of the Additional Protocol states:

The accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the ("criminal intent" or "malice aforethought"); this encompasses the concepts of "wrongful intent" or "recklessness"....

As long as the IDF did not deliberately attack civilians, and the local commander had a military purpose for each target based on the best information available at the time, there is no violation of the principle of distinction.

Clearly, the observers on the ground and around the world who are looking at the results through the distorted lens of TV cameras cannot possibly know what the intent of the IDF commanders are. They don't know the specific intelligence available, the real-time situation on the ground, the danger to IDF troops or Israeli civilians (in the case of targeting rocket launchers,) the topography of the area (when, for example, the IDF needs to take hgh ground in order to protect its troops) - none of that is available to the armchair analysts who breezily and ignorantly say that IDF actions could amount to war crimes. The bar to determine that is incredibly high, and is not decided by people at Human Rights Watch who change international law at will for their purposes.

The argument that Israel is deliberately attacking civilians has another fatal flaw: if the policy was to attack civilians, then is it difficult to explain how thousands of air strikes and thousands more artillery strikes have killed so few. If the objective is civilian, then there would be tens of thousands of civilian victims. One cannot claim that the IDF is both a uniquely bloodthirsty army using precision weapons to target civilians and at the same time maintain that the IDF is so poor at targeting. Anyone claiming that the IDF is deliberately targeting civilians is either grossly ignorant of how wars are waged, or they are willfully slandering the army.

---

Caveat - I am not a lawyer. I am getting much of this from the IDF initial response to the Goldstone Report, and as of yet I have not seen a single scholarly rebuttal to the legal aspects mentioned in that report. If someone has written such a rebuttal, please let me know.

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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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Does the Jordan-Israel peace agreement give Jordan custodianship of the Temple Mount?

Jordanian newspapers today are reporting that Jordanian officials confirm that Jews have no right to pray on the Temple Mount, according to the Israel-Jordan peace treaty signed in 1994.

They were responding to members of Knesset who said that the treaty did not require any Jordanian approval for Jews to pray there.

Who is right?

Here is the text of the relevant article of the treaty, from Jordan's King Hussein website:

Article 9 - Places of Historical and Religious Significance and Interfaith Relations

1. Each Party will provide freedom of access to places of religious and historical significance.

2. In this regard, in accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.

3. The Parties will act together to promote interfaith relations among the three monotheistic religions, with the aim of working towards religious understanding, moral commitment, freedom of religious worship, and tolerance and peace.

Paragraph 1 makes it clear that nothing can prohibit Jews from visiting the Temple Mount, just as Muslims or Christians cannot be banned from the area either.

Paragraph 2 has two parts. The first is clearly not prescriptive; it is simply a statement that Israel "respects" Jordan's "special role" without saying what that role is. It does not give Jordan any power to create rules.

The second part is almost prescriptive but not quite; it uses the word "will" instead of the stronger "shall." It also doesn't define what it means to give "high priority" to Jordan's "historic role." If Israel is the party assigning priorities to Jordan's role, that means that Israel can override them. Most importantly, however, is that this sentence only refers to the time of permanent status negotiations (implying that Jordan will be a party to the talks) but it does not say that Jordan's role, whatever that is, is permanent.

Paragraph 3 explicitly calls for freedom of religious worship. This indicates that not only is Israel permitted to allow Jews to visit the Temple Mount and perhaps to allow them to pray, as the previous two paragraphs implied, but it enshrines the freedom for Jews to pray on their holiest site is. Banning such prayer would be a violation not only of human rights law but of this treaty itself.

The peace agreement certainly does not give Jordan any custodianship or powers over the Temple Mount. The best that can be said is that it demands Israel take Jordan's opinion into account, but Jordan has no veto power over how the holy sites are governed. Moreover, the third paragraph shows that freedom of worship is a critical principle to be upheld by both parties, which would naturally include freedom for Jews to worship.

In short, the Jordanians who claim that the treaty gives them the right to ban Jewish worship are not being truthful.

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Did the US recognize Palestine as a state in 1932?

An email correspondent sent me part of a discussion from Mondoweiss that claimed that the US recognized Palestine as a state in 1932.

The assertion:

FYI, the US government formally recognized the Mandated State of Palestine in 1932. For example, the case of “Kletter v. Dulles, Secretary of State”, the United States District Court District Of Columbia ruled in 1953 that Mr. Kletter had lost his US citizenship when he was naturalized in the Mandated State of Palestine:

The contention of the plaintiff that Palestine, while under the League of Nations mandate, was not a foreign state within the meaning of the statute is wholly without merit. . . . Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine at that time was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nations provision in treaties of commerce.

So I looked up the case.

It does indeed state that. However, the writer ignores that the case quotes an earlier case that defines the terms a bit better:

When the Congress speaks of a "foreign State," it means a country which is not the United States, or its possession or colony — an alien country — other than our own, bearing in mind that the average American, when he speaks of a "foreigner," means an alien, non-American. Uyeno v. Acheson, D.C., 96 F.Supp. 510.

Looking at Uyeno vs. Acheson, we see:

It is obvious that the words "foreign state" are not words of art. In using them, the Congress did not have in mind the fine distinctions as to sovereignty of occupied and unoccupied countries which authorities on international law may have formulated. They used the word in the sense of "otherness". When the Congress speaks of "foreign state", it means a country which is not the United States or its possession or colony, — an alien country, — other than our own, bearing in mind that the average American, when he speaks of a "foreigner" means an alien, non-American.

So the full context shows without any room for doubt that the US did not recognize British Mandate Palestine as a state, rather it was recognized as a foreign entity. The phrase"foreign state" was used for convenience, not as a legal ruling.

This is the quality of arguments of the anti-Israel crowd. Scratch a little and you see that they don't bother to read the very text they are quoting.

There is actually an entire book by John Quigley that tries to pretend that Palestine was a real state before 1948. Part of his argument is that Great Britain in 1932 gave Palestine (at the behest of Jewish leaders) "most favoured nation" status for purposes of easing tariffs so Jews in Palestine could export wine and fruit to England easier. The argument is that if Palestine was a "most favoured nation" then it must have been legally considered a nation by Great Britain.

This is of course absurd. The UK was looking for a legal fiction to allow easier exports from Palestine, it was not making a legal decision that Palestine was a state!

 Yet  Quigley further argues, bizarrely, that this supposed recognition of Palestine as a state in the 1930s carries over to today, as if there is a legal relationship between what was called Palestine at the time and a Palestinian state today, purposefully ignoring that Israel and only Israel took over the political institutions of Palestine.

However, the "most favoured nation" argument that Palestine was considered a nation by Great Britain can be demolished in an even easier way. Because Great Britain said explicitly that Palestine was not a state in a memo to the UN in early 1948!

In that memo, the United Kingdom says: "Palestine is today a legal entity but it is not a sovereign state."

It doesn't get more explicit than that.

Quigley, not surprisingly, doesn't mention this quote.

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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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Analysis finds EU guidelines on Judea and Samaria legally problematic

The Kohelet Policy Forum has released a paper showing that the proposed EU guidelines against funding "activities" in Judea and Samaria are problematic under international law, even if you regard the territories as occupied.

Here is the executive summary:

EU’s Israel Grants Guidelines: A Legal and Policy Analysis


The Israel Grants Guidelines adopted by the European Commission are singularly discriminatory against Israel. They contradict international law as established in U.N. documents and leading court cases, as well as the European Union’s own interpretations of international law. 

The EU provides aid and financial cooperation to numerous countries that maintain settlements in what Europe considers occupied territory, such as Morocco, Turkey, and Russia. In none of these cases has the Commission imposed limitations on the aid akin to the Guidelines for Israel.

The Commission’s position that the Guidelines are mandated by international law are further belied by EU programs that provide grants specifically for settlers in belligerently occupied territory, such as the EU’s programs in Turkish-occupied Northern Cyprus.

Under international law, there are no prohibitions regarding organizations engaging in “activities” in occupied territories, yet the Guidelines bar funding solely on the basis of such “activities.”

In pretending that the Guidelines fulfill the requirements of international law, the Commission exposes the EU to legal challenge for EU funding of parallel activity in belligerently occupied territories around the world, such as Northern Cyprus, Abkhazia and Western Sahara, and exposes its businesses operating in such places to liability.

The Guidelines have no precedent in similar arrangements between the U.S. and Israel.

The Guidelines seek to undermine territorial arrangements that are established by existing Israeli-PLO agreements and foreclose issues that are preserved for negotiations.

The Guidelines do not advance the EU position on sovereignty because they do not relate to activities that legally establish sovereignty or constitute recognition of sovereignty.

The Guidelines are unlikely to be accepted by Israel in their present form. Non-discriminatory alternatives include borrowing language from scientific cooperation agreements with the U.S. and extending the Guidelines to all occupied territories with funding relationships with the EU.

Obviously the authors have forgotten the most important rule of modern international law: Israel is always guilty, and laws must be re-interpreted retroactively to ensure that result.

Once you understand that rule, then everything makes sense again!

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