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 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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