Hamas forces carried out a brutal campaign of abductions, torture and unlawful killings against Palestinians accused of “collaborating” with Israel and others during Israel’s military offensive against Gaza in July and August 2014, according to a new report by Amnesty International.However, it is interesting to see how Amnesty talks about Israel in this report.
‘Strangling Necks’: Abduction, torture and summary killings of Palestinians by Hamas forces during the 2014 Gaza/Israel conflict highlights a series of abuses, such as the extrajudicial execution of at least 23 Palestinians and the arrest and torture of dozens of others, including members and supporters of Hamas’s political rivals, Fatah.
“It is absolutely appalling that, while Israeli forces were inflicting massive death and destruction upon the people in Gaza, Hamas forces took the opportunity to ruthlessly settle scores, carrying out a series of unlawful killings and other grave abuses,” said Philip Luther, Director of the Middle East and North Africa Programme at Amnesty International.
For starters, Amnesty must hang onto the illusion that Israel still occupies Gaza, even though they know very well that under international law, occupiers are responsible for maintaining the legal system of the occupied and Israel cannot do that. So it writes nonsensical passages like this:
The legal situation in Gaza is complex due to the applicability of several distinct and overlapping bodies of international law, which provide the framework for examining the duties and obligations of various authorities with regard to the abuses described in this report. Those parties include Israel as the overall occupying power, the Hamas de facto administration in Gaza, the Palestinian authorities based in Ramallah in the West Bank, and the unity administration agreed between all Palestinian factions to which president Abbas appointed ministers in June 2014. ...In legal terms, Gaza has remained under Israeli occupation since June 1967 and Israel’s actions as the occupying power are regulated by the law of occupation, notably the Fourth Geneva Convention.26Footnote 26:
The nature of that occupation of the West Bank and Gaza has shifted over the years, but Israel has maintained overall effective control – the sine qua non of belligerent occupation. Israel remains the occupying power in Gaza and continues to be bound by the law of occupation, particularly as regards the powers it continues to exercise over the population of Gaza. This does not negate the responsibilities of the Hamas authorities, who have had de facto administration over internal affairs in the Gaza Strip since June 2007, or those of the Palestinian authorities, which have jurisdiction over internal affairs in parts of the Occupied Palestinian Territories under the Oslo Accords.Amnesty is creating a legal framework that simply doesn't exist to ensure that Israel is considered an "occupier" of territory that Amnesty knows Israel doesn't have effective control over.
If Israel cannot dismiss a Gaza judge or a Gaza policeman, it is not the occupier. From the ICRC:
As legitimate State authority has now passed into the hands of the occupying power, the latter must take all measures in its power to restore and ensure, as far as possible, law and order and public safety.This is expanded here:
One of the most pressing tasks faced by any military government is the maintenance of law and order. With government buildings, stores, hospitals, and cultural facilities being looted, revenge killings taking place, and general lawlessness preventing the delivery of humanitarian aid, this has become an omnipresent concern for the coalition forces in Iraq. Their responsibility in this regard is unambiguously set forth in the U.S. Army's Field Manual 27-10: "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…." Thus, although there have been assertions that the coalition forces are not police, in fact occupation law imposes policing responsibilities on them during an occupation.Obviously all of these are impossible for Israel, meaning Israel isn't occupying Gaza. But Amnesty clings onto their absurd definition. (It does fall short of directly blaming Israel for not creating a judicial system that could prosecute Hamas war criminals, knowing that such a call would open it up to ridicule.)
Although occupation forces must maintain law and order, pre-existing civil and criminal laws of the occupied territory remain in effect to the extent they are apolitical, consistent with the maintenance of public order, and otherwise appropriate (e.g., discriminatory or inhumane laws are void); understandably, members of the occupying forces are immune from the jurisdiction of local law enforcement and judicial authorities. The Occupying Power may issue regulations, including penal regulations, necessary to meet its obligations under occupation law. ...Common examples include censorship of the media, limitations on public gatherings, and control over travel and means of transportation (whether private or public). Penal provisions cannot be retroactive and do not come into effect until published in the inhabitants' language. Overall, occupation law seeks a balance between the maintenance of order and the preservation of the pre-existing legal order.
At the end of the report, though, Amnesty reveals a possible reason why it issued this report ostensibly against Hamas - in order to pressure Israel to do what Amnesty wants!
TO THE ISRAELI AUTHORITIESBecause of Hamas crimes?
The Israeli authorities should co-operate with any independent and impartial international investigation, judicial or non-judicial, including the work of the Commission of Inquiry set up by the UN Human Rights Council in July 2014 and any follow-up mechanisms established by the Council, by offering complete access to relevant personnel, documents, and other material. They should seek to ensure that the cases documented in this report, among others, are investigated impartially and independently and that, wherever there is sufficient admissible evidence, any alleged perpetrator is brought to justice in proceedings that fully respect international fair trial standards.
They should also:
Allow Amnesty International and other human rights organizations, as well as UN appointed investigators, including any follow-up mechanisms to the Commission of Inquiry and UN special rapporteurs, unrestricted access to Israel and the Occupied Palestinian Territories, including the Gaza Strip, to investigate these and other suspected violations of international law by all parties to the conflict;
Is the ICC interested in prosecuting Hamas?
Co-operate with any investigation of the International Criminal Court, or national courts undertaking investigations under domestic universal jurisdiction laws;
What does this have to do with the subject of the report?
Rescind any punitive measures taken following Palestine’s signature of the Rome Statute and refrain from imposing any additional punitive measures if the Palestinian authorities take further steps to pursue international justice for crimes under international law;
What does this have to do with the subject of the report?
Completely lift the blockade on the Gaza Strip, including by permitting the unrestricted transfer of construction materials into the Gaza Strip and the transfer of goods from Gaza to Israel and the West Bank, subject only to necessary and proportionate security checks, as an essential step towards addressing the shelter and protection needs of Gaza’s 1.8 million civilians;
What does this have to do with the subject of the report?
Accede to the Rome Statute of the International Criminal Court and issue a declaration accepting the International Criminal Court’s jurisdiction since 1 July 2002.
Under the excuse of allowing any UN or international investigation into Hamas activity - investigations that simply will never happen - Amnesty is demanding that Israel open itself up to biased prosecutions, for example under the Rome Statute that includes text written specifically to damn Israel and no other country.
Amnesty isn't interested in justice for Hamas. It wants to use Hamas as a fig-leaf to issue more ultimatums against Israel.