I got roped into a discussion on the international law aspects of the I-P conflict, and a professor at a US university put forward the following document written by two academics for the Jerusalem Centre for Public Affairs, Justus Reid Weiner and Avi Bell. It was suggested to me that it is a neutral and scholarly analysis of the issues.
My criticism was two-fold:
- The paper is a party brief, not a dispassionate legal analysis; and
- Some of the legal analysis is incomplete or faulty.
I had neither the time nor the resources to do a proper professional job of the review, but I'll share it here anyway.
As a request - let's stop throwing out terms like "genocide" and "war crimes". International law crimes are individual crimes, not collective crimes (of Israel, of Hamas, of "the Jews", of "the Palestinians"). Establishing crimes and guilt will have to wait for actual investigation and trial.
1. Party Brief
The party brief character of the paper:
Beginning in the Introduction, but consistently and throughout, the paper deplores the lack of criticism of "Palestinian" actions and deplores the unjust criticism of Israeli actions. In terms of legal analysis, both are irrelevant. A legal analysis stands or falls by its academic analysis, not by public condemnation or approbation. Thus, these passages are redundant to the analysis and colour the paper.
Use of "Palestinian" - the paper is ostensibly about Gaza, in which Hamas predominate, and the paper refers consistently to the Qassam rockets being fired into Israel from Gaza. When there are specific references, the references are to Hamas, but generic references are to "Palestinian" - "Palestinian" terrorist, "Palestinian" actions, etc (references too numerous to mention). With lesser authors, this could be put down to sloppy writing. As the matter stands, the authors expose themselves to the criticism that they establish the culpability of Hamas for terrorist actions, then jump to a generic blame on all Palestinians. This is an underhand rhetoric device not worthy of reputable academics with strong arguments; if applied to Israelis or Jews, it would justifiably be criticised as anti-semitic.
The structure of the paper intimates that the "Palestinians" are the aggressors (see title on page 3 "Palestinian Attacks from Gaza"), while Israel is purely reactive (title on page 8 "Limited Israeli Counter-Measures"). Given the history of the Middle East conflict, this is at the very least disingenuous.
The title on page 9 reads: "Flawed Criticism made by Opponents of Israel" - what does this mean? Does this mean that anybody criticising Israel must be an opponent of Israel? Or does it mean that any criticism made by an "opponent" is automatically flawed, without reference to the merits of the argument? Is it possible to be a friend of Israel (or be ambivalent) and still make a valid criticism? Is it conceivable for a criticism to be directed against a policy of Israel’s government-of-the-day on the basis that the critic believes the policy is detrimental to Israel’s long-term security – would the critic be a friend or opponent of "Israel"? For a legal analysis, and for authors confident of the strength of their argument, it would have been entirely sufficient to introduce the chapter with the title "Flawed Criticism of Israel".
The paper routinely states, in a conclusory fashion, that the actions of "the Palestinians" violate international law while those of Israel don’t (see initial paragraphs on page 8).
2. Dodgy Legal Analysis
(a) The Accused
On Hamas, refer also to this paper from the US Army's Strategic Studies Institute, with thanks to Kossacks for the reference.
(i) "Palestinian" Terrorism
Personally, I am satisfied that the Hamas elements firing untargetable rockets from Gaza into Israel (Sderot etc) are terrorists; the US, the EU and others have labelled Hamas a terrorist organisation; therefore, I don’t believe that this issue is seriously contentious.
However, there are issues with the paper’s exegesis on this subject:
Terrorism is an act committed by individuals; therefore, it is not permissible to speak generically of "Palestinian" terrorism (e.g. Page 6).
The paper seeks to make "Palestinian authorities in Gaza" responsible for harbouring terrorists, in violation of the 1999 convention; pursuant to the convention, such an obligation is only incumbent on States (the paper vacillates between ascribing and denying statehood to Hamas-Gaza; at the very least, this should be posed as a question and not stated as a given).
(ii) Other "Palestinian" War Crimes
In the penultimate paragraph on page 6, the authors refer to Cpl Shalit and purported violations of GC III; again, only state actors are subject to the GCs (or para-state actors who have agreed to comport themselves in accordance with the GCs). Even if the Palestinian Authority has declared its intention to observe the GCs, Hamas is not an alter ego for the Palestinian Authority. Whoever is holding Cpl Shalit, and barring any evidence that he is being held by or in connivance with the Palestinian Authority, they are (very likely) guilty of criminal kidnapping but not war crimes.
(iii) Genocide
This is one of the most serious charges that can be levelled in international law; here particularly, where the corpus delicti is the Hamas Covenant, it is simply not permissible to tar "the Palestinians" with genocide.
The charge of genocide rests on two elements in the Hamas Covenant:
Article 6, advocating the restoration of Palestinian overlordship over all of Palestine (i.e. elimination of Israel); and
Article 7 in fine, quoting a passage "related by al-Bukhari and Moslem", about killing Jews except those hiding behind certain trees.
The paper also quotes Article 31 in fine for its reference to "Zionist Nazis" (actually: "Zionist Nazi activities").
On analysis, both references are not immediately persuasive in terms of the charge of genocide.
The removal of the state of Israel in itself does not constitute genocide. The state of Israel is not identical with "a national, ethnical, racial or religious group"; removal of the state of Israel is not synonymous with the "destruction" of its citizens. It is conceivable to eliminate the state of Israel without loss of life (and in this sense, Article 31 of the Hamas Covenant is informative, in that it specifically refers to the co-existence of Muslims, Jews and Christians). It is hard to conceive of a national liberation movement that does not to some extent imply the removal of in whole or in part of state structures or institutions.
This will obviously not come as any relief at all to Israelis – Israel is a member of the community of states and it is not compatible with either the principles of international law nor the UN Charter in particular to advocate the elimination of any one state. Article 31 of the Hamas Covenant also does not offer co-existence on the basis of full equality, but implicitly as second-class citizens under Muslim pre-eminence (one wonders about the status of Hindus etc). So while the Hamas Covenant is no doubt inimical to the state of Israel, this element of the programme in and of itself does not constitute genocide.
Regarding Article 7, I am not persuaded that the second-hand and obscure hadith quotation is so clear as to be unambiguous to the charge of genocide; the Christian Bible has similar references (in Revelation). Obviously, the reference does not advocate tolerance and brotherly love, but for the charge of genocide to stick, there does need to be some showing that Hamas intends to "destroy" Jews as a group. Again with reference to Article 31 of the Hamas Covenant, it is not clear that Hamas has such an intent. At the very least, this requires further exegesis.
This analysis does not imply, and is not intended to imply, that Hamas is, in ambition, intent or action, a harmless talking-shop; the Hamas Covenant clearly evidences aggressive intent against Israel, and does not exclude from its programme the perpetration of violence (including loss of life) against the state of Israel itself or against its citizens. All these are serious enough. However, this does need to be distinguished from the charge of genocide, and given the inflammatory nature of the charge, the paper is cavalier in its analysis and, in my view, irresponsible in its rhetoric.
(b) The Victim
(i) Occupation (page 17 ss)
The nub of the analysis here is whether or not Israel is the Occupying Power in Gaza in the sense of GC IV. The paper states that it isn’t. The lines of argument are not consistent and in some cases mutually exclusory. Tracking them through would be tedious and unproductive; in my view, the argument has to proceed from the following (and I'd point to the analyses of Gisha and the Yale Journal of International Law, as well as my diary here):
Between 1968 and 2005, Israel was undoubtedly the Occupying Power in Gaza; I acknowledge that Israel seeks to dispute this by reference to the intervention of Egyptian occupation prior to 1968, but ultimately, the international community saw Israel as the Occupying Power (see ICJ Wall Advisory Opinion 90-101, with references). So at least for 1968-2005, GC IV applied to Israel’s overlordship over Gaza.
In 2005, Israel dissolved Jewish settlements in Gaza and demilitarised Gaza; the paper asserts that this demilitarisation effectively terminated the Occupation.
It is not disputed that Israel controls one of the two land borders of Gaza; controls the airspace and territorial waters; controls the population registry and hence the entry and departure of Gaza residents and non-residents; controls the finances; and controls fuel supply and power supply (mainly because Israel destroyed Gaza’s only power station, though this is not acknowledged in the paper). There is disagreement to what extent Israel effectively controls the one remaining land border, the border with Egypt, though the paper acknowledges that Israel exercises some control over entries and exits through Rafah through its effective control over the population registry (page 8). Israel continued after 2005 to exercise force at will throughout Gaza (e.g. Operation Summer Rain, referenced; sonic boom flights; aerial control and shore patrols).
Israel maintains that these elements are not sufficient to create an Occupation pursuant to Hague Regulations IV and GC IV (despite an ICJ ruling to that effect in the case of Uganda) - the paper states "[Israel] has not substituted its authority for the de facto Hamas government". This is disingenuous by half: Israel was the Occupying Power from 1968-2005 and completely substituted its government for that of Egypt; the question is whether the demilitarisation of 2005 contained sufficient elements to find for a cessation of the Occupation.
There is no doubt that Israel ceded (limited) autonomy over local administration to the Palestinian Authority, which eventually and in an uncontrolled way devolved to Hamas; but the scope of the authority was initially defined by Israel. The matter would be simplified (or complicated) if Hamas had claimed sovereignty; it is not disputed that Hamas didn’t. Given the comprehensive and intrusive nature of Israel’s residual authority; the fact that the on-the-ground authority was intended to be exercised by Palestinian institutions by way of delegation from Israel; and that no other state actor constituted effective control over Gaza - it is hard to admit to a cessation of the Occupation.
There is a parallel line of argument in that Israel and the PLO undertook in the Oslo Accords not to change the international law status of the Occupied Territories. While it has been argued that the Oslo Accords are dead letter, the paper in places relies on the Oslo Accords (page 8 penultimate para; page 16 last para). It would not be consistent with the paper’s premise of Israel’s scrupulous adherence to international law that Israel would on one hand derive rights from the Oslo Accords but fail to comply with its undertakings.
As an aside, the issue of sovereignty over Gaza crops up here and there. With the history of the Occupied Territories in general being what it is, there is no end to angels-dancing-on-a-pin scope for argument; by and large, the paper does not derive too much from the discussion, which is salutary since the subject is effectively a red herring. I would point out, though, that the argument run in the penultimate para of page 16 can be turned around: If Gaza is sovereign, then the firing of rockets into Israel can be seen as an act of self-defence against Israeli attacks (the paper does not deny the policy of targeted killings or the bizarre sonic boom practice – both would be intolerable violations of the sovereign integrity of Gaza). While it can be discussed whether the firing of rockets would be compatible with ius in bello (indiscriminate risk to civilians), they would not be terrorism. The authors are wise not to go down that route.
In my mind, there is little doubt that the unilateral demilitarisation of Gaza was ill-conceived; it further did not help that Israel and Fatah unsuccessfully conspired to forcibly deny Hamas its election victory; furthermore, Israel adamantly refuses to talk to Hamas. All these elements contributed and contribute to the current mess in Gaza, and resulted in the current wholly unclear allocation of responsibilities and authority. However, to conclude from this that Israel has succeeded in divesting itself of its Occupying Power responsibility is repugnant. Israel acted and is acting irresponsibly, and should not benefit from doing so.
(ii) Consequences of "Occupation" finding
Despite the paper’s hopeful assertion, there is considerable basis in law for finding that Israel remains the Occupying Power in Gaza. However, such a finding merely raises a further set of questions:
Even if Israel remains the Occupying Power, the fact of local administration must have the effect of relieving Israel of some of the day-to-day responsibilities of the Occupying Power under GC IV; what those are would have to be analysed in detail, and is beyond my scope.
Even if GC IV applies – does all of GC IV apply, or only the limited catalogue of Article 6 (3) (prior to the resurgence of overt military operations)?
I am in agreement with the authors of the paper that it is a consequence of this finding that Israel remains obliged to "ensure, as far as possible, public order and safety", and that such an obligation may entail boots on the ground.
While such actions can be expected to include the use of force, that use of force has to be compatible with Israel’s obligations under GC IV and Hague Regulations IV; it is not a question of Israel’s right of self-defence or any of the ius in bello-based standards. Also, it makes non-sense of the paper’s digressive references to retorsion and boycotts in international law (page 15).
I have no definite view on whether the applicability of GC IV ipso facto renders a dispute in Gaza an international dispute or precisely not. Ultimately, I suspect it does not matter greatly; the decision would determine whether Additional Protocol I or II applies, but Israel has acceded to neither. Nevertheless, the authors acknowledge that the principles set forth in the Protocols have entered into customary law. The authors seem to favour the interpretation that the conflict is international in nature (by referencing AP I), but on balance, I don’t see that the authors seek to derive any dramatic conclusions from the classification.
(iii) "Limited Israeli Counter-Measures"
With the above in mind:
I disagree with the paper’s premise that distinction and proportionality are in effect the key standards; the key standard is GC IV
The paper avers that Israel’s actions have been proportional (page 13-14); the key assertion (first sentence in 2nd para page 14) is without reference. It also does not help to find references proposing for a specific instance that the action was proportional, and implicitly extrapolating from that that all actions were proportional. Each and every action has to be examined for proportionality on its own merits. The authors tread on risky ground by stating that no action of Israel was ever in breach of international law since even one instance of Israel’s failure to abide by the principle of proportionality causes their edifice to fall. There have been numerous allegations of such failures; I am not qualified to judge on any of them, but I find the extensive cumulation of "oopsies" to be disturbing enough be sceptical of the authors’ confidence.
On page 15, the papers states that "collective punishment" refers only to "criminal-type" penalties. The materials for the APs show clearly that this is wrong; collective punishment encompasses any retribution, not just criminal-type penalties. Taken as a whole and in light of Israel’s effective control of fundamental aspects of daily life in Gaza, it is a legitimate question whether certain of Israel’s actions constitute collective punishment.