The ICRC again twists international law to damn Israel (updated)

Juan Pedro Schaerer, "head of delegation of the International Committee of the Red Cross in Israel and occupied territories," writes in the Jerusalem Post:

It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation. The facts are such that the Israel Defense Forces established their presence in the West Bank and East Jerusalem in June 1967, and exerted their authority there in place of the Jordanian authorities who were no longer able to exert their own authority.

The West Bank and east Jerusalem were “actually placed under the authority” of the IDF in the sense of Article 42 of the Hague Regulations of 1907. In other words, the facts on the ground were such that they fell squarely into the definition of occupied territory, which is codified in Article 42, a provision that also reflects international customary law.

This has not changed in the 45 years that have past since the occupation of the West Bank, including east Jerusalem, was first established. Israel continues to effectively control this territory.

In addition, international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state. The purely factual criterion used is that a territory is considered occupied when it is actually placed under the authority of a hostile army – which is the case in the West Bank and east Jerusalem.

Since at this point Schaerer is only quoting the Hague Regulations, perhaps he should look at the title of the section that Article 42 falls under on the ICRC website:

SECTION III
MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE

While this isn't proof positive that the Hague Regulations do not apply to non-state entities, it is also proof that Schaerer's blanket statement is not as clear cut as he pretends. He gives no source for his assertion, and based on primary sources, his statement is only that - an assertion.

The Geneva Conventions shed no additional light on this question, so as far as actual texts of international humanitarian law are concerned, Schaerer's statement is not supported at all.

The ICRC can interpret all it wants, but its interpretation is only that. To characterize it as definitive is deceptive, and that is what is happening here.

Regarding settlements, it is long established in international law that settlement activities by an occupying power in an occupied territory are unlawful.

Population transfers for the purpose of establishing settlements are forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory.

This is explicitly addressed in the Fourth Geneva Convention, for good reason. Such transfers are prohibited because they lead precisely to the demographic and other changes in the territory which occupation law was designed to prevent.

This is a flat-out lie.

I have many times dissected the text of Article 49 of the Geneva Conventions, and I have even dug up the travaux préparatoires that show that when the article was drafted not a word is said about transfer that is voluntary or even encouraged.

Indeed, international law writings, when discussing transfer of populations, are very careful to distinguish between voluntary and involuntary transfer.

Some transfers are said to be voluntary but are in fact involuntary. An example Egypt's expulsion of British subjects in November 1956. Egypt force them to sign an Arabic document where they stated that they were leaving of their own free will and relinquish any claims against Egypt. That is a case of involuntary transfer because the transferees were not given a choice.

The definition of voluntary transfer is very simple: "For the transfer to comply with human rights standards as developed, prospective transferees must have an option to remain in their homes if they prefer."

Nothing in any international law source insists that a nation forcibly stop its citizens from voluntarily moving, but that is apparently how Schaerer is purposefully misinterpreting Geneva.

Moreover, Schaerer characterizes the primary purpose of Article 49 as to "demographic and other changes in the territory which occupation law was designed to prevent." This is also a lie. All of the discussions recorded in the travaux préparatoires center on forced population transfer because of the obvious human rights issues that deportation and forced transfer entails, of forcibly uprooting people from their homes. Nobody said a word about demographic changes being an issue at least in that paragraph.

Thus, when the international community regards the Israeli settlements in the West Bank as unlawful, it does so simply because of that very prohibition, and not because of an opinion of the ICRC.

As I have shown, the source texts do not support Schaerer's interpretation. The ICRC might have some support for its position, but some legal scholars have proof for the opposite. That is why it is clearly, by definition, the ICRC's opinion.

This article proves the opposite of Schaerer's intention. By simply looking up the sources, we see that the ICRC is creating its own interpretation of international humanitarian law specifically to target Israel.

UPDATE: A lengthy comment at the JPost site is worth reading in full: (h/t Ian)

Mr. Schaerer's OpEd raises more questions than it provides answers. For starters, the most obvious one is why is the ICRC so inconsistent in applying the same rules to so many similar situations? To wit, if "It is not the ICRC, but rather the facts on the ground that determine whether a territory is under occupation." as he claims, how come the ICRC didn't apply the same criteria when Jordan illegally occupied and annexed the West Bank and Egypt did the same with Gaza in 1948? Similarly, how come the ICRC has never said a word regarding the (exceedingly brutal) invasion, occupation and annexation of Tibet by China in 1950 (which is still ongoing)? And what about Northern Cyprus, still illegally occupied by Turkey since 1974, and Morocco still illegally occupying the Western Sahara since 1975? Oh, I also forgot two provinces of Georgia still illegally occupied by Russia since 2008? In all these cases, the facts on the ground certainly proves beyond the shadow of a doubt that the territories in question are under occupation. Additionally, all these territories were acquired through wars of aggression, making them illegal, whereas Israel's occupation of the West Bank was the result of a defensive war, which makes it lawful. And yet it is on Israel that the ICRC keeps picking mercilessly, the only case of lawful occupation, while ignoring all the illegal ones! Could it be that the ICRC is scared to offend the culprits in all these other cases, whereas it knows it has nothing to fear from Israel in terms of retaliation? If not, how come the ICRC doesn't have extensive delegations of expatriates and local employees (as it does in Israel where they criss-cross the country taking care of every need of the Palestinians) in Tibet, Northern Cyprus and the Western Sahara? This is the core of the problem the ICRC faces when it keeps accusing Israel of something it is not guilty of while ignoring the countries who are really guilty of the offenses it accuses Israel of: by accepting to apply a double standard against Israel alone, the ICRC has shed much of its credibility as a so-called neutral agency. International law applies equally to all nations, or it applies to none, but it can't be applied to just a few and ignored by the rest.

Next Mr. Shaerer states: "Population transfers for the purpose of establishing settlements are
forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory." That is a blatant exaggeration of what the IVth 1949 Geneva Convention actually says. The article in question, Art.49, Para. 6, says "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Better yet, the ICRC's own commentary on the Geneva Conventions, regarded by most international law scholars as the most reliable interpretation of the GC, specifically says with regard to this provision that "[This clause]... 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." This article was meant for the likes of Nazi Germany, and rather than Israeli settlers who moved to the West Bank of their own free will, it applies perfectly to the colonizers and settlers imported en masse by China in Tibet, Turkey in Northern Cyprus and Morocco in the Western Sahara. And yet... the ICRC has never said a word about these cases! Israel should stop being so nice and bend over backwards to please the ICRC when the same ICRC has proven itself incapable and unwilling of applying the same rules it wants to impose on Israel while ignoring more blatant cases of violations of the IVth GC. When it does, and proves to be the neutral agency it claims to be, it would then be welcomed back, although its interpretation of international law leading to the conclusion that the IVth GC is applicable to the West Bank remains faulty to this day anyway.

Finally, Mr. Schaerer promises us that "the ICRC envisages engaging in a series of open forum events in 2014", that is, to discuss "the discrepancies between international humanitarian law and certain policies implemented by Israel in the occupied territories". I trust that the real situations of illegal occupations I have mentioned will be prominently debated - in particular the question as to why the ICRC keeps harping on Israel and says nothing about these cases when in fact they meet far better the definition of belligerent occupation than Israel ever has. If not, this promises to be a completely moot and useless exercice.

Jean-Jacques Surbeck
Former member of the ICRC Legal Division in Geneva, Switzerland from 1974 to 1984 (now living in the US).

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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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Red Crescent ambulances participate in Hamas terror parade (update)

Judge Dan at Israellycool noticed that in the videos showing the Hamas celebrations of Pillar of Defense last year, at least two ambulances - and maybe three were taking part in the parade itself.



At 1:46:

At 6:32:

And in this video, at 3:36:

It does not appear that these ambulances were there just in case of sudden illness along the route. From looking through the windows, they seem to be filled with people wearing the same Hamas uniforms that the rest of the terrorists in the parade are wearing.

The Red Crescent, of course, is not allowed to be misused in this way. The Red Cross is upset when it is used in video games or other non-authorized uses, so certainly we should be hearing their complaints about it being used in a terrorist parade very, very soon now.

Right?

UPDATE: The ICRC says these are not Palestinian Red Crescent ambulances. Other interesting points are brought up. See new post.

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A legal scholar details ICRC bias against Israel over "occupation" of Gaza

Last week I wrote a post about how the International Committee of the Red Cross was, in my opinion, hypocritical for ignoring the opinions of experts it gathered to discuss the definition of "occupation" and choosing instead to consider Gaza to still be occupied, against all normative legal opinions.

I received two responses from Juan-Pedro Schaerer, ICRC Head of Delegation, Israel and the Occupied Territories, in the comments. The first one:

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

And a second one, after I commented:

In response to your comments and for the purpose of clarification, I wish to emphasize that the ICRC does not maintain that Israel has retained all elements of authority and governmental functions in Gaza. Rather, our position is that even after the withdrawal of its forces in 2005 Israel continues to exercise effective control over certain key elements of authority in Gaza and therefore remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained. This reflects a functional approach to the law of occupation that emanates from the underlying purpose and rationale of that body of law. In simplified terms it means that to the extent that an occupying power retains control of key functions and authorities in the occupied territory it also remains bound by the relevant provisions of the law of occupation. Where there is control there is responsibility. For an elaboration on this see T. Ferraro, Determining the beginning and end of an occupation under international humanitarian law, 94 IRRC 133, 159 (aviliable online here:)

Professor Abraham (Avi) Bell, of the University of San Diego School of Law and at Bar-Ilan University,  an expert on international law who has written extensively on this very issue, graciously offered to comment on Schaerer's responses. His answer is much better than the one I planned to write. (Emphasis mine.)

The argument first used by Mr. Schaerer was taken near verbatim from one invented by Gisha, a political pro-Palestinian NGO. It is not an argument that has any basis in general international law. 

Mr. Schaerer’s argument consisted of a list of factual assertions, some of which are obviously correct but irrelevant (yes, Israel controls Israel’s own land borders with Gaza), and some of which are obviously both false and irrelevant (no, Israel does not “control … all the items that can be imported and exported from the Strip” – Gaza imports and exports goods through its land borders with Egypt).

None of the factual assertions relate to the generally understood legal criteria for effective control as understood in international law, as ICRC officials would readily acknowledge if Israel were not in the dock.

Is there any other case in recorded history where the “facts” offered by Mr. Schaerer have been interpreted as sufficient “effective control” to create a belligerent occupation notwithstanding the absence of (1) boots on the ground and (2) any administration by the purported “occupier”?

The answer, of course, is no.

It is curious that Mr. Schaerer didn’t even try to analyze how the generally applicable test for belligerent occupation would apply to Israel and Gaza. Instead, he said that a set of irrelevant facts “allow ICRC to determine that Israel exercises effective control.” Well, sure. ICRC is “allowed” to make any determination it wants. It is “allowed” to determine Spain occupies Portugal, if it wants.

Mr. Schaerer’s “clarification” is even more mystifying. He appears to be saying that the ICRC acknowledges that Gaza is not occupied by Israel, but that the ICRC claims that Israel can still be bound by some of the rules of belligerent occupation due to legally insufficient effective control. This is a novel theory that was advanced by Gisha after its earlier arguments that Israel “occupies” Gaza found no support among legal scholars not pre-committed to the Palestinian side. Needless to say, Gisha’s new theory has no basis in the text of any treaties, and it has never been applied against any other country in recorded history. In other words, it is a brand-new anti-Israel theory aimed to create legal duties that restrict the conduct of the Jewish state, but not of any other state in the world.

There are several additional oddities in Mr. Schaerer’s clarification. First, it is a lie. The ICRC continues to treat Gaza as belligerently occupied territory (see, e.g., here.) I cannot find a single public statement of the ICRC that acknowledges that Gaza is not actually belligerently occupied by Israel, but rather that Israel is bound by some laws of occupation under the “functional” theory even though Gaza is not occupied. Even Mr. Schaerer’s fails to acknowledge this openly in his “clarification.” Instead, Schaerer’s characterizes the ICRC position in a disingenuous manner. Schaerer claims that the ICRC restricts itself to asserting that “Israel ... remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained.” This is, of course, a flat-out lie. The ICRC continues to assert that Israel is bound by the law of occupation well beyond any “functional limits of the competences [Israel] has retained.” For instance, the ICRC continues to blame Israel for the failures of Hamas’ health care system in Gaza, the lack of variety of goods exported from Egypt to Gaza, and numerous other “competences” that have nothing to do with Israel.

Second, not only does Mr. Schaerer refuse to acknowledge the nature of the new theory he is advancing, he pretends that it is existing and well-known international law. The disingenuousness of Mr. Schaerer’s claims on this score can be seen by looking at his citation of an article by an ICRC advisor that Mr. Schaerer claims supports the bizarre anti-Israel theory used by the ICRC. The article is written by a senior legal advisor at the ICRC, so it naturally attempts to support the ICRC’s position. But ironically, the article does little more than show just how baseless the ICRC’s anti-Israel position is. Mr. Schaerer claims the article shows that "[w]here there is control there is responsibility" and Israel has "control" according to the ICRC, and it must therefore have responsibility. But the article actually says quite the opposite. According to the article, the general understanding of international law when not distorted to attack the Jewish state is that a state only has control if three ingredients are present at the same time: (1) the armed forces of the occupying state are physically present in a foreign territory without the consent of the local government; (2) the effective local government has been or can be rendered substantially incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence; and (3) the foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government. As it happens, exactly ZERO of these ingredients are present in Gaza. In other words, the article cited as authoritative by Schaerer shows just the opposite of what he claims.

Of course, the article is produced by an ICRC lackey, and it attempts to fabricate a new legal theory that can justify the ICRC’s position against the Jewish state. Thus the article offers for unnamed “specific and exceptional cases” the “functional theory” that Mr. Schaerer uses to try to impose legal duties on Israel to support Hamas’s rule in Gaza. But the article does not even try to claim that there has ever been such a specific and exceptional case in recorded history. In fact, the article introduces its discussion of the “functional theory” by contrasting it with existing law, making it clear that even the article’s author cannot seriously claim that the ICRC’s anti-Israel position reflects international law as it currently stands. Instead, the article offers the “functional theory” as an innovation for which the article cites not a single legal authority nor any legal precedent.

However, I should acknowledge that Mr. Schaerer is right in saying that it is “facile” to accuse the ICRC of hypocrisy. We do not have any clear evidence of the ICRC officials’ motivation in distorting legal standards to create a uniquely harsh anti-Israel standard. The only things that can be clearly demonstrated are that the ICRC is using a harsher standard against Jewish state than it has used against any other country in recorded history, that its anti-Israel standard has no basis in international law as it is currently understood and applied, and that ICRC employees advocate the ICRC’s anti-Israel position by means of falsehoods and disingenuous argumentation. Until an ICRC employee is willing to be more forthcoming, the reasons for the ICRC’s bias against the world’s only Jewish state will remain a mystery.

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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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International Red Cross promotes terror-supporting IHH in video

This is unconscionable. The ICRC interviews the head of the Turkish IHH and allows him to pretend that his organization is humanitarian, even concerning the Mavi Marmara attack on the IDF:



Here's a video of the IHH-sponsored flotilla that shows just how "humanitarian" it was:



Here's more stuff that the International Committee of the Red Cross didn't bother to inform viewers of in the video about the IHH:

Even the "aid" that the flotilla was bringing was symbolic - including expired medicines!

The IHH is close to Hamas, and doesn't deal at all with the PA. IHH members have recently visited Gaza and Hamas members reciprocate.

When the ICRC legitimizes the IHH, they only delegitimize themselves.

(h/t Harry's Place)

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Gazan call to break humanitarian law - in front of ICRC

Terrorist Leila Khaled, who has been visiting Gaza for the past week, called for Palestinian Arabs to kidnap more Israeli soldiers to hold them hostage for more prisoner swaps.

Speaking in front of a group of families of terrorists in Israeli prison, Khaled said that "resistance" is the only way to get them released.

Taking hostages is a war crime under international humanitarian law.

But the venue for Khaled's call for this war crime was in front of the International Committees of the Red Cross in Gaza - an organization dedicated to upholding international humanitarian law!

The irony of using the ICRC as a stage to call for war crimes is apparently lost on Gazans.

Hamas has recently made similar calls to perform the war crime of taking hostages. The media ignored it, of course, as it has ignored Khaled's call today.

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