“Elder of Ziyon” is the handle of an anonymous blogger who enjoys some popularity among pro-Israel circles. Despite concealing his identity even when he appears in public, he has been cited as an authority by those media sources for whom one’s level of expertise directly correlates to one’s conclusions: in Israel National News, the Jerusalem Post, Tablet magazine, and the Wall Street Journal online editorial section. Elder of Ziyon has also partnered with StandWithUs on collaborative projects.
In a recent blog post entitled “The Hypocrisy of the ICRC and the Definition of ‘Occupation,’” Elder of Ziyon (abbreviated hereafter as EOZ) claims to prove that the International Committee of the Red Cross (ICRC) applies a double standard when it comes to Israel.
EOZ bases his case on a 2012 ICRC report entitled Occupation and Other Forms of Administration of Foreign Territory. The report summarized the proceedings of three ICRC-sponsored meetings in which international law experts debated the parameters of occupation under international humanitarian law.
According to EOZ, the experts determined that the withdrawal of foreign forces from a territory would signal the end of an occupation. Thus, in light of the Gaza “disengagement” of 2005, the meeting concluded with the
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.
EOZ contrasts this alleged finding with the fact that the ICRC still refers to the Gaza Strip as “occupied,” as evidenced in its latest annual report.
In other words, EOZ writes,
the ICRC indeed comes up with one conclusion and then ignores it when it comes to Israel.
EOZ even boasted that ICRC staff were reading his blog post:
The head of the ICRC’s delegation to Israel and the Occupied Territories, Juan-Pedro Schaerer, left a comment on EOZ’s blog:
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…
And following responses from EOZ and others, Schaerer left a second comment:
[T]he 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…
Here, Schaerer provides the grounds on which the ICRC determines the legal status of the Gaza Strip. However, he does not address EOZ’s interpretation of the ICRC report. In such absence, I have taken it upon myself to demonstrate the breadth of EOZ’s shoddy scholarship. The following, then, is an examination of what the hasbara industry accepts as a groundbreaking exposé.
1. EOZ mischaracterizes the nature and goals of the report
First, the very fact that EOZ attempts to determine an ICRC stance from the report reveals his dishonesty. The ICRC report’s introduction states, in boldface:
It must be noted that the report does not reflect the ICRC’s views on the subjects addressed at the meetings. (page 9)
That disclaimer alone is enough to dismiss the entire EOZ blog post. But let’s go further:
The views expressed during the discussions were not intended to reflect the views of the institutions or States to which the experts belonged. (p. 9)
So the views expressed at these meetings were not even representative of any institutional body but rather of the participants “in their personal capacity” (p. 5). What about the references to Gaza?
[I]t should be borne in mind that the purpose of the discussions was not to consider the legal status of the Gaza Strip for the purposes of IHL [international humanitarian law]. Nor was it the case for any other situation. (p. 27)
Quite explicitly, the report warned readers not to interpret the discussion in the way that EOZ eventually does. The meeting participants did not come to any collective conclusion on the legal status of the Gaza Strip—which was referenced only in two pages and one appendix in a 150-page report—nor was that the intent.
Instead the goal of the report was, according to the ICRC’s head of the legal division,
to analyse whether and how far the rules of occupation law might have to be reinforced, clarified or developed … [The report] aims only to document the debates that took place during the three meetings of experts. (p. 5)
And as noted by the report’s author, ICRC legal advisor Tristan Ferraro,
This report is not exhaustive; its aim is to furnish a faithful narrative of the main points discussed and positions expressed during these three meetings of experts on occupation and other forms of administration of foreign territory … It provides glimpses of the current state of debate on these subject matters. (p. 9)
In a later interview, Ferraro added:
The main objective is to assess whether the law of occupation can still meet the needs it was created for. The idea is that a clear assessment of the state of the law could ultimately enhance the protection provided by international humanitarian law for people under military occupation.
When asked whether the report “reach[ed] conclusions about the legal status of specific territories or countries,” Ferraro replied,
The report does not focus or even comment on any specific context. It approaches the law of occupation on the basis of issues, not of countries or territories.
When the ICRC needs to determine the status of a specific situation under international humanitarian law, it carries out its own research based on available information, and shares its positions first and foremost with the authorities and other parties concerned.
2. EOZ mischaracterizes the conclusions of the report
Quoting from the ICRC report, EOZ writes that “the report concludes:”
“…the specific proposition that the rules relating to occupation continued in the situation [in the Gaza Strip] 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.”
From this, EOZ proclaims that there was
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.
Yet what EOZ quoted was not from the report’s conclusion, nor was it a “near-total consensus” statement. Instead, EOZ was quoting from an appendix to the report, prepared by a single participant, Oxford University Professor Emeritus Adam Roberts.
The one conclusion that the ICRC drew from the series of meetings was the one it had tasked the participants to flesh out:
The conclusion that emerges from the ICRC project is that occupation law, because of its inherent flexibility, is sufficiently equipped to provide practical answers to most of the humanitarian challenges arising from contemporary occupations. Accordingly, it is the ICRC’s view that occupation law does not require any further development at present; it requires only some clarification, by way of interpretations made in the spirit of the law that ensure that the needs of the occupied population are met and the security interests of the occupying power preserved at the same time. (p. 5)
3. EOZ mischaracterizes the argument of Adam Roberts
Perhaps the most ridiculous aspect of EOZ quoting Roberts is that he gets Roberts’s intentions completely wrong. When Roberts wrote that the withdrawal of Israeli troops from the Gaza Strip would make it “difficult to sustain granted the traditional rules about occupation,” he wasn’t making the case that Gaza was no longer occupied. Instead, he was making the argument that a traditional understanding of occupation was inadequate to address cases such as that of the Gaza Strip.
In the appendix, Roberts used Iraq and the Gaza Strip as case studies to “illustrate the salience of the question of whether occupation can have, as it were, an after-life”—or what he also refers to as “occupation after occupation” (p. 46). The “withdrawal of occupying forces from the territory,” wrote Roberts, “ is not the sole criterion for the ending of an occupation.”
Even if, as in Gaza, the occupying forces have withdrawn, the former occupant, for example on account of geographical closeness and involvement in the economy of the territory, may have a continuing role that some see as potentially analogous to occupation. This and other instances raise the question of whether there can be a satisfactory way of determining whether occupation has ended, and whether the application of humanitarian rules has to depend on such determination. (p. 41)
Indeed, Roberts has been making similar arguments for at least three decades. In 1984, Roberts wrote that
the question of when an occupation can be said to have begun, or ended, is sometimes easy to answer but is by no means always so.
In the same essay, responding to Israeli Attorney General Meir Shamgar’s contention that the Fourth Geneva Convention did not apply to the West Bank and the Gaza Strip, Roberts wrote,
The weakness of his argument on this point is that he nowhere mentions the existence of a custom of viewing the laws of war, including the law on occupations, as formally applicable even in cases which differ in some respect from the conditions of application as spelt out in the Hague and Geneva Conventions.
And in 2004, Roberts wrote of Iraq:
Most legal writings indicate that an occupation ends when the foreign troops leave … In many cases such a statement poses no problems. However, the withdrawal of occupying forces is not the sole criterion of the ending of an occupation … The essential feature of the ending of an occupation is often, though not always, an act of self-determination involving the inhabitants of the occupied territory.
4. EOZ falsely claims “consensus” among meeting participants
EOZ claims a “near-total consensus view among international legal scholars surveyed in this ICRC document” that Gaza is not under occupation. Yet all of the quotes that he takes from the ICRC report refer only to the first of three meetings, comprising sixteen of the total 36 participants—among whom there was much disagreement. Thus what EOZ claims is a “near-total consensus” is based on a skewed reading of a summary about an unspecified percentage within 44% of the total participants—in a meeting that was not even intended to determine the status of Gaza. Not “near-total consensus”—not even quantifiable—and not meant to be.
And of course the only other quote comes from an appendix—which EOZ falsely claims is a conclusion—authored by a single participant who makes a case that is contrary to what EOZ claims it to be.
This is especially ironic in light of EOZ’s attack on human rights attorney Michael Sfard for evoking a “legal consensus.”
EOZ also mischaracterizes the meetings as a “survey”—implying a mere tallying of expert opinions—while the report repeatedly refers to the discussions as a “debate.”
5. EOZ mischaracterizes the scope of the ICRC report
In his response to ICRC head Juan-Pedro Schaerer, EOZ claims that
The ICRC report allows “indirect effective control” [as a condition for occupation] if there is a local militia that answers to the occupant. That’s it.
Yet the ICRC report “allows” nothing. As already demonstrated, the report was never meant to be prescriptive. Nor was it meant to encompass all possibilities—“This report is not exhaustive” (p. 9). EOZ falsely suggests that if the ICRC report does not mention something, it cannot be applied—as if the report were a rulebook.
In truth, the scope of effective control, direct or indirect, is wider than that discussed in the report. In a separate article, the ICRC report’s author, Tristan Ferraro, presents a broader concept of effective control:
Effective control could be exerted by positioning foreign troops in strategic positions on the occupied territory: this would make it possible for the Occupying Power to dispatch troops, within a reasonable period of time, to make its authority felt throughout the area in question. Thus, effective control may, to a certain extent, take the form of remote control … One might wonder whether, in some specific instances (in particular when the belligerents’ territories are contiguous), the same result could be attained by positioning troops in strategic places located just outside the occupied territory.
Thus Ferraro provides an example that could match the situation of the Gaza Strip, within the realm of effective control.
6. EOZ dismisses the ICRC report when it is inconvenient
EOZ also writes in response to Juan-Pedro Schaerer,
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.
In fact, the ICRC report, which EOZ otherwise claims is authoritative, did invoke sui generis cases:
During the debates, the possibility that the sui generis character of some situations could have an impact on the criteria previously identified was also submitted by a few experts; this was not challenged. (p. 28)
This was actually mentioned in the footnote of a passage that EOZ quotes from, though he conveniently omits the footnote. Furthermore, the report participants discussed sui generis cases “particularly in terms of means to exercise effective control” (p. 11).
Moreover, the complaint that one would apply a sui generis case to “only Israel” is tautologous and certainly not a double standard.
7. EOZ relies on questionable authorities
It is no surprise, then, that EOZ took inspiration for his article from another dubious scholar. Robbie Sabel, a professor of international law at Hebrew University and a former legal adviser to the Israel Ministry of Foreign Affairs, had previously misrepresented the ICRC report on similar grounds in an article for the Jerusalem Center for Public Affairs entitled “Manipulating International Law as Part of Anti-Israeli ‘Lawfare.’”
The shallowness of Sabel’s scholarship is emphasized during his attempt to refute charges of apartheid within the same article, in which he purports to address international law. When he confronts the apartheid label, the law professor ditches the legal definition of apartheid under the Rome Statute of the ICC in favor of definitions provided by the Merriam-Webster online dictionary and a defunct website called AfricanaEncyclopedia.com.
The purpose of this article is not to debate international law or to determine whether the Gaza Strip is still occupied. Ultimately the status of legal occupation is significant to the extent that it imposes obligations on Israel in relation to the Gaza Strip. If those same obligations remain after a technical withdrawal of troops, as some of the experts in the ICRC report suggest, then the status of occupation is less relevant.
Yet here I have sought to challenge EOZ’s reading of the ICRC article, from which we must conclude that EOZ is either grossly negligent or willfully malicious—or a combination of the two. It also does not bode well for those who would rely on EOZ as an authority.
The extent that I do want to posit on the legal status of the Gaza Strip is this:
Before the Gaza “disengagement” of 2005, Israel supporters argued that the Gaza Strip was never occupied under international law. After the Gaza “disengagement” of 2005, the Gaza Strip was no longer occupied under international law. Thus an occupation that previously never existed now no longer exists. The occupation that never happened has now ended.
In fact, the Israeli government currently maintains that the Gaza Strip is not and was never occupied by Israel because Gaza supposedly had no “prior legitimate sovereign.” If that’s the case, then it shouldn’t matter whether there are Israeli forces in Gaza to determine its legal status, and such an argument made in defense of Israel only undermines Israel’s own assertions.
Elder of Ziyon has previously stated that he takes pride in issuing corrections when warranted. Since his article has been proven to be completely invalid, will he issue a full retraction? And will he apologize for misrepresenting the ICRC? Or will he attempt to weasel his way out by changing the focus and qualifying his claims based on some previously undisclosed—and hitherto unconceived—context?
Soon after this article was published, Elder of Ziyon (EOZ) appended a preliminary response to his original posting. The response is instructive in how EOZ deflects criticism by changing his story:
On misrepresenting Adam Roberts:
[Adam] Roberts makes crystal clear that he is saying that the idea of Gaza being considered occupied after Israel’s withdrawal is problematic. [emphases mine]
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. [emphases mine]
There is a considerable difference between saying “Gaza cannot possibly be considered occupied by Israel,” and now saying “Gaza being considered occupied…is problematic.”
And to be specific, the whole of Roberts’s appendix, entitled “The Termination of Military Occupations,” concerns the problems associated with determining when an occupation truly ends, rather than whether it is okay to call something an occupation.
EOZ now believes he can affirm Roberts’s context by reprinting the whole paragraph, while I insist that one should read the entire appendix. It is clear that EOZ has not done so, since he previously confused the appendix for a conclusion and failed to notice the byline credited to “ADAM ROBERTS,” all caps, in 15-point Helvetica—consequently mistaking one person for a “near-total consensus” of thirty-six people.
On misrepresenting the provenance of the report
I don’t think I characterized the report as being reflective of the ICRC’s official views, as Nguyen says.
Because the ICRC acts like it is the ultimate authority on international humanitarian law, so when it says Gaza is occupied – against its own legal reasoning – it has gravitas. [emphasis in original!]
Surely EOZ remembers writing that since he recently scrubbed it from his posting (cached version here).
On misrepresenting the purpose of the report
I read the report as being an attempt to determine the laws of occupation, period.
Despite offering the vaguest possible explanation (determine what about the laws of occupation?), EOZ still gets it wrong. Again, from the author of the report:
The main objective is to assess whether the law of occupation can still meet the needs it was created for.