Tuesday, November 21, 2023

By Daled Amos

Last year, I wrote about Francesca Albanese, who bears the weighty title "UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territory Occupied Since 1967." In that article, I focused on her declaration of objectivity and impartiality. I contrasted that with her accusations about the influence of the "Jewish Lobby," in addition to other issues that called her moral authority and credibility into question. 

Those questions are still pertinent today, following the Hamas Massacre and Israel's retaliation. Back in 2014, Albanese made her feelings about Hamas clear:

Last year, she made clear that applying the "resistance" label sanitized whatever Palestinian terrorists did:
As Hillel Neuer pointed out at the time, since the Palestinian call for "resistance" is a call for violence, this UN human rights expert was deliberately inciting violence.

Let's take a look at this human rights and international law expert in action.

On November 15, The Project interviewed Francesca Albanese and asked her what would have been the right and legal way for Israel to have responded to the Hamas massacre of 1,400 men, women, and children and the kidnapping of 240 others.

Here is the transcript:
Interviewer: So, Israel was always going to respond to the attacks of October 7. In your view, what would the correct response have looked like?

Albanese: The response was to be given in terms of law enforcement because Gaza is occupied, and it's under belligerent occupation. So Israel has powers to enforce the law and to pursue all security measures that are deemed necessary, considering that this is occupied territory. It could have relied on the United Nations to demilitarize Hamas, if this was the target. Instead, he does wage the war claiming the right of self-defense under Article 51, which is the right to wage a war, the right to use military force against another state. But again, we are talking of the people that Israel occupies and it has occupied for 56 years now.
Albanese is making 3 basic claims:
Israel should have responded to the Hamas terrorist attack by sending in the police
o  Gaza is under belligerent occupation by Israel and is not allowed to reply militarily
o  Israel could have relied on the UN to demilitarize Hamas
Let's take the second claim first.

Is Gaza Really Occupied?

There are certainly people who believe that. There are experts in international law who claim it too. But that is not a unanimous opinion. Take for example the European Court of Human Rights.

The European Court of Human Rights is an international court established by the European Convention on Human Rights, an international treaty that defends human rights. In 2015, the court made a decision relating to the conflict between Armenia and Azerbaijan and it touched on the issue of what constitutes "occupation."
94. Article 42 of the Regulations annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907 (“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. 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, that is, 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. [emphasis added]

According to the European Court of Human Rights, occupation requires the actual, physical presence of foreign troops, i.e. boots on the ground. A blockade does not qualify as the kind of control required to constitute occupation.

Once Israel withdrew from Gaza, there was no occupation.

Of course, there are still those who insist that Gaza is occupied, and the decision by the European Court has obviously not settled the issue. However, international law is determined in part by treaties and by precedence, and this decision is a strong a valid basis for saying that Gaza is not occupied. 

Albanese is of course free to stand before the media and declare her opinion that Gaza is occupied, but to claim her opinion as if the issue is one-sided and to ignore the validity of the other side, is less than honest.

She does in fact take to Twitter to support her view, quoting a decision by the International Court of Justice:

Some problems with the ICJ decision:
This opinion of the ICJ was an advisory opinion. While it may carry some legal weight, the opinion is not binding
o  The court was not asked for an opinion on occupation. Instead, the issue was the security barrier.
o  Not only was the court not asked to offer an opinion on occupation, the question itself to the court presupposed the existence of occupation:
“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”
The court did not make a legal decision about occupation, it merely parroted back the language of the question it was asked.
Also, note that parts of the ICJ's conclusion are disputed by one of the judges, Judge Buergenthal. While he was in the minority, Buergenthal's critique of the ICJ's decision is instructive:
5. Whether Israel’s right of self‑defence is in play in the instant case depends, in my opinion, on an examination of the nature and scope of the deadly terrorist attacks to which Israel proper is being subjected from across the Green Line and the extent to which the construction of the wall, in whole or in part, is a necessary and proportionate response to these attacks. As a matter of law, it is not inconceivable to me that some segments of the wall being constructed on Palestinian territory meet that test and that others do not. But to reach a conclusion either way, one has to examine the facts bearing on that issue with regard to the specific segments of the wall, their defensive needs and related topographical considerations.
Since these facts are not before the Court, it is compelled to adopt the to me legally dubious conclusion that the right of legitimate or inherent self‑defence is not applicable in the present case. The Court puts the matter as follows:
“Article 51 of the Charter . . . recognizes the existence of an inherent right of self‑defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State."
The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self‑defence.

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” (Para. 139.)
6. There are two principal problems with this conclusion. The first is that the United Nations Charter, in affirming the inherent right of self‑defence, does not make its exercise dependent upon an armed attack by another State, leaving aside for the moment the question whether Palestine, for purposes of this case, should not be and is not in fact being assimilated by the Court to a State. Article 51 of the Charter provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self‑defence if an armed attack occurs against a Member of the United Nations . . .” Moreover, in the resolutions cited by the Court, the Security Council has made clear that “international terrorism constitutes a threat to international peace and security” while “reaffirming the inherent right of individual or collective self‑defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)” (Security Council resolution 1373 (2001)). In its resolution 1368 (2001), adopted only one day after the September 11, 2001 attacks on the United States, the Security Council invokes the right of self‑defence in calling on the international community to combat terrorism. In neither of these resolutions did the Security Council limit their application to terrorist attacks by State actors only, nor was an assumption to that effect implicit in these resolutions. In fact, the contrary appears to have been the case. (See Thomas Franck, “Terrorism and the Right of Self‑Defense”, American Journal of International Law, Vol. 95, 2001, pp. 839-840.)

The ICJ belittles the terrorist threat Israel faces and its legal right and obligation to fight it. Apparently, Albanese takes her cue from their non-binding, advisory opinion.

Call The Cops on Hamas?

“Israel cannot claim self-defense while illegally occupying and while directing an act of aggression against another country,” she said. “Those who have the right to self-defense are the Palestinians.”

Last week at the National Press Club in Australia, she doubled down:

"What Israel was allowed to do was to act to establish law and order, to repel the attack, neutralize whomever was carrying out the attacks and then proceed with law and order measures ... not waging a war," she added.

So what can Israel do in the face of terrorism? Call the cops! And if that sounds absurd, Albanese goes one better.

The UN To The Rescue!

If it is difficult to imagine policemen going into Gaza to arrest Yahya Sinwar, try to imagine the UN demilitarizing Hamas. But in order to pull that off, you have to forget about the historical failures of the UN to keep the peace.

But Eugene Kontorovich has a reminder of the UN's disastrous failings:
The idea of international forces in Gaza repeats decades of mistakes.

In every single case, UN forces and agencies failed to provide Israel any security and were coopted and used by its enemies.
For example:
The UN Security Council created the United Nations Emergency Force after the 1956 Suez War to keep the peace on the border between Israel and Egypt. But when Nasser demanded they leave in 1967, the UN just left.

o  Similarly, the UN Truce Supervision Organization in Jerusalem fled when Jordan attacked Israel during the war in 1967.

o  After the Yom Kippur War in 1973, the UN Disengagement Observer Force was created on the border between Israel and Syria. But during the Syrian Civil War, they pulled out when Islamist militias moved in.

o  The United Nations Interim Force in Lebanon did nothing to prevent the PLO from attacking Israel.

o  After the Second Lebanon War in 2006, the Security Council required UNIFIL to disarm Hezbollah in south Lebanon. But Hezbollah has on grown stronger in that area since and act with impunity, firing rockets on Israeli homes despite the "presence" on the largest peacekeeping force outside of Africa.
Yet in the face of the obvious failures of the UN as a peacekeeping force, Albanese absurdly insists that Israel "could have relied on the United Nations to demilitarize Hamas."

Her farcical claim that Israel has no right to defend itself after the Hamas Massacre only leads her to the foolish, and deadly, claims that Israel should send the police into Gaza or have the UN stroll into Gaza to disarm Hamas.

This is what happens when a law degree is used as a tool to pursue a personal, biased agenda. But this is what we have come to expect from the UN.

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