Tuesday, February 20, 2024
Elder of Ziyon
There is an ongoing claim justifying the murder of unarmed Israeli civilians.
This claim has gained even more support following the Hamas massacre on October 7th, when Palestinian terrorists murdered 1,200 Israelis and took hundreds hostage.
Just one day after the attack, pro-Palestinian protesters came out to defend the atrocities:
The protesters carried signs that called for an end to U.S. aid to Israel and argued that "Resistance is justified when people are occupied."
Arab countries, like Iraq, also supported the massacre:
[T]he operations carried out by the Palestinian people today are a natural result of the systematic oppression they have been subjected to for many years at the hands of the Zionist occupation authority, which has never adhered to international and UN resolutions.
First of all, the claim that Gaza is occupied is debatable at best. The legal precedent in international law is that occupation requires boots on the ground -- an actual, physical presence in the territory that allows the "occupying" force to exercise control and authority to the exclusion of local government authority. That is clearly not the case in Gaza, where Hamas is in control.
According to the European Court of Human Rights, this is the definition of occupation.
It is also how the Nuremberg trials defined occupation, after World War II in the Hostage Case, addressing the issues involving the Nazi invasions of Greece, Yugoslavia, and Norway:
Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied. [p. 1243]
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| Defendants during the Hostages Trial in Nuremberg |
Because the issue is one of actual authority and control, the European Court of Human Rights makes a point that applies particularly to Gaza:
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.
But the Hostage case is especially instructive because it does more than define occupation per se. It also addresses the responsibilities of those who are occupied.
One would expect that the application of international humanitarian law to the occupied population should be straightforward and the distinction between them and the occupying force should be black and white.
But that is not the way the court saw it:
But it does not follow that every act by the German occupation forces against person or property is a crime or that any and every act undertaken by the population of the occupied country against the German occupation forces thereby became legitimate defense. [p. 1247]
In other words, the actions of the occupying force -- even of the Nazis in WWII -- are not automatically illegal just because they are done during an occupation. Similarly, not everything that the occupied citizens do in response to the occupation is legal under international law. And it makes no difference whether the occupation is legal or not:
At the outset, we desire to point out that international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject. [p. 1247]
In his book, The International Law of Belligerent Occupation, Yoram Dinstein writes:
There is a widespread conviction that the civilian population in an occupied territory has a right to forcibly resist the Occupying Power. This is a misconception that must be dispelled. In reality, LOIAC [Law of International Armed Conflict] allows civilians 'neither to violently resist occupation of their territory by the enemy, nor to try to liberate that territory by violent means'. As a Netherlands Special Court pronounced in the 1948 Christiansen trial:the civilian population, if it considers itself justified in committing acts of resistance, must know that, in general, counter-measures within the limits set by international law may be taken against them with impunity. [emphasis added; p. 94]
The bolded text that Dinstein quotes comes from "How Does Law Protect in War?", Volume 1: Outline of International Humanitarian Law, published by the International Red Cross:
From the point of view of IHL [International Humanitarian Law], civilians in occupied territories deserve and need particularly detailed protecting rules. Living on their own territory, they come into contact with the enemy independently of their will, merely because of the armed conflict in which the enemy obtains territorial control over the place where they live. The civilians have no obligation towards the occupying power other than the obligation inherent in their civilian status, i.e., not to participate in hostilities. Because of that obligation, IHL allows them neither to violently resist occupation of their territory by the enemy nor to try to liberate that territory by violent means. (Part 1, Chapter 8:IV)
On the question of resistance, the court addressed whether the partisans who took up arms against the Nazis qualified as lawful belligerents -- and found that in many cases they did not:
The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common uniform, They generally wore civilian clothes although parts of German, Italian, and Serbian uniforms were used to the extent they could be obtained. The Soviet star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so...It is evident also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated [by the occupation] as prisoners of war. No crime can be properly charged against the defendants [Nazi generals] for the killing of such captured members of the resistance forces, they being francs-tireurs [a guerrilla fighter or sniper]. [p. 1244]
The court here is dealing with cases of armed groups that fought against the occupation army -- and still found these groups who failed to identify themselves properly to have acted contrary to international humanitarian law.
Following the Hostages Trial the Geneva Convention was amended to extend protections to captured partisan fighters as legitimate prisoners of war. The convention required of such partisans that they have an established chain of command, carry their weapons openly, and have a distinctive and readily visible symbol of their unit. They also must carry out military activities in accordance with the conventions of warfare, rather than covert assassinations, bombings, and other criminal acts.
It is not hard to imagine what the judges would have said about partisans who attacked unarmed civilians.
Nor should it be hard to see the Hamas massacre for what it is -- and what it is not. Yet around the world, the streets are overflowing with people drawn to emotionally charged chants and self-serving fabrications of international law.
Even in the current war in Gaza, in Hamas' own videos of fighting, they are not wearing uniforms and are violating the Geneva Conventions.
Contrary to what these "protestors" would have you believe, they have no interest in the law.
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