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Israel and the law — the views of three international jurists

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It was just another Facebook post by a Palestine-friendly blogger, wondering whether any of her FB friends could comment on a Tweet she’d received regarding Article 19 of the 4th Geneva Convention — a tiny provision that appears to sanction the bombing of hospitals that have been commandeered by enemy combatants. “Article 19 starts on page 54,” a FB friend quickly piped up, providing this link to the 4th Geneva Convention.

Now, I’m not a lawyer — international or otherwise — but I imagine that in law, law of any sort, the devil is in the details. Which is to say you can easily get away with a crime you’ve committed if a trivial-sounding loophole can be found, and you’ve got a good lawyer. On the other hand, a tiny loophole in a lengthy legal statute doesn’t necessarily mean you can’t or won’t land in the slammer for another bunch of related crimes, if the prosecution is on its toes.

In Israel’s case, the list of international crimes allegedly committed is lengthy: “crimes of occupation” and “oppression,” “crimes of Apartheid,” “collective punishment,” and acts of war deemed criminal under international law —  like bombing hospitals and schools, UN-run shelters, and food production, power generation and sewage treatment facilities.

So, does Israel need to hire a pack of high-priced lawyers to defend it in The Hague when the inevitable trial begins? Israel probably already has, in preparation for a bout of “delegitimization” Washington will do everything in its power to block or delay. Most US Senators and Congressmen are lawyers, and would likely argue Israel’s case before the ICC with verve and passion.

I recently spoke with two European and one South African jurists on the following topics: 1. Israel’s putative right of “self-defense” against Gaza militants; 2. the idea of a Palestinian right to “resist” occupation; 3. the “Israeli Apartheid” notion; 4. Israel’s alleged meting out of “collective punishment”; 5. Hamas as a negotiating party; 6. BDS; 7. Israel, Hamas and the ICC, and 8. the fate of international law. Click on the link to hear voices. Some choice quotes:

Brussels University Professor Emeritus Eric David, on Israel’s putative right of self-defense against Gaza militants:

“Of course, when a state is attacked, no problem. The state has, of course, a right of self-defense. But in this particular case the problem is much more subtle and complex. Why? Because, in fact, since 1967, as you know, since Security Council Resolution 242, Israel is obliged — is legally obliged — to leave the Palestinian Occupied Territories … and as you know this resolution is compulsory; it’s binding. States are obliged to respect the resolutions of the Security Council, according to Article 25 of the UN Charter, and Israel never did that … And [so], if there is a kind of self-defense which can be invoked it is chiefly the Palestinians who can invoke this right, and not Israel, because Israel does not respect these resolutions … It is quite clear that if someone is attacked today, it’s mainly the Palestinians.”

Dutch criminal lawyer Phon Van Den Biesen:

“I think what we have been seeing over the years — but especially over the last couple of weeks … I do not have much doubt that both parties are violating the laws of warfare, and are violating the rules of international law with respect to warfare. So, that would be true for the leaders of Hamas, as well as for the leaders in Israel. Israel obviously has the right to defend itself against armed assaults, but a right to self-defense is not unlimited; the right to self-defense is itself restricted by rules of international law.  And one is not allowed to target civilian objects. And even if it is true that Hamas would be making it hard to make a difference between military and civilian targets — which if that is true is something that implies also a violation by Hamas of international law, because in warfare you’re not supposed to use a hospital as a basis for launching missiles — but even so there is a need for proportionality in international law; there is a need to at all times make a difference between civilian and military targets. But on the ground the facts show that Israel is involved in a wholesale targeting of civilian objects. And that is clearly a violation of humanitarian law. And targeting power plants, water reservoirs, water facilities, etcetera certainly is targeting civilian objects, and is certainly a violation of the laws of warfare.”

Eric David:

“Don’t forget that Israel has been committing a permanent war crime; not one, but has been committing permanent war crimes by establishing settlements in the Occupied Territories. The Israeli settlements are — and I put quotation marks — a “war crime.” It is not only a war crime according to Article 8, Paragraph 2(b) … of the statute of the ICC, or according to Article 85 of the First Additional Protocol of 1977 — protocol additional to the Geneva Conventions of 1949 (these two instruments have never been ratified by Israel); but also according to Article 147 of the 4th Geneva Convention … which criminalizes illegal transfer of population from the occupying power on the territory of the occupied power. A settlement which is made by the occupying power is a crime in international law. It’s an illegal transfer of population. That was made by Germany during the Second World War … That’s been considered as a war crime, and that’s precisely what happens today with Palestine. And thus, because of that situation, it’s quite clear that the Palestinians … find a legal justification to defend themselves, because the United Nations are not coherent with their own resolutions. Because on the one hand they ask — not ask — they order Israel to withdraw from the occupied territories, and it doesn’t do!”

The firing of rockets by Hamas into Israel is illegal, Professor David points out; completely forbidden. But rock throwing by Palestinian youth in the West Bank?

“If they throw rocks against the IDF — Israeli Defense Forces — well, it’s a legitimate target. Of course they are allowed to do that. Certainly not only from a jus contra bellum point of view, but also from a jus in bello point of view, because it is true that these occupying troops are a legitimate target in [International Humanitarian Law].”

On the question of whether or not Israel metes out collective punishment, South African jurist and former UN Rapporteur John Dugard has this to say:

“The international community takes a view that Gaza remains occupied territory, to which the 4th Geneva Convention continues to apply. Israel argues that it’s a hostile entity … it regards it as no longer occupied territory. But given the fact that it does remain occupied territory, Israel is subject to the constraints imposed by international law on an occupying power, and I believe that the siege of Gaza, in particular, is unlawful, and also the collective punishment meted out to Gaza is unlawful … Collective punishment, which violates the 4th Geneva Convention, has always been a feature of the occupation.”

John Dugard points out that Israel implicitly acknowledged charges that home demolition constitutes collective punishment in 2007, when it discontinued the practice for a brief while:

“We’ve seen that in the wake of the killing of the three Israeli teenagers, that homes were destroyed in an act of collective punishment, and of course you can say that the bombing of Gaza is an act of collective punishment, because the majority of the people who are killed are civilians, who are seen simply as collateral damage. And the Israeli forces tend to be a bit unconcerned by collateral damage, so that too constitutes collective punishment … Collective punishment, which is also a war crime, is a feature of the occupation. And I suppose that too could be prosecuted before the International Criminal Court.”

On the prospects of a future Palestinian case before the ICC:

John Dugard:

“If Palestine does become a party to the International Criminal Court, there are of course questions about what it can investigate; what international crimes have been committed. Some argue that the International Criminal Court would have retrospective jurisdiction over crimes committed in Gaza in 2008/2009 … in the course of Operation Cast Lead. But it’s more certain that the court would have jurisdiction over settlements, because the transfer of settlers from the occupying power into the occupied state clearly violates the Rome Statute of the International Criminal Court. That would, in effect, enable the International Criminal Court to investigate those responsible for the whole settlement enterprise, and to investigate those who are implementing it.”

Eric David:

“Israel is a real rogue state, because it doesn’t comply at all with public international law; it does not withdraw from the Occupied Territories. Not only does it not withdraw, but furthermore, it has been committing war crimes since 1967 or 1968. All war crimes [that] have been committed by Israel in the Gaza Strip, for instance, could be judged by the ICC. And furthermore, the settlements — as they are war crimes in the West Bank — could also be judged by the ICC, and the ICC could start prosecution against Israeli political leaders who are responsible.”

Listen to John Dugard, Eric David, and Phon van den Biesen.

About David Kattenburg

David Kattenburg is a Winnipeg-based radio/web broadcaster and science educator.

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19 Responses

  1. just
    September 7, 2014, 11:13 pm


    • Marnie
      September 8, 2014, 1:15 am

      What is the delay, go to the ICC now and strike while the iron is hot. It sure appears that they crimes committed by the state of israel is well-known and documented and going way back.
      “Israel is a real rogue state, because it doesn’t comply at all with public international law; it does not withdraw from the Occupied Territories. Not only does it not withdraw, but furthermore, it has been committing war crimes since 1967 or 1968. All war crimes [that] have been committed by Israel in the Gaza Strip, for instance, could be judged by the ICC. And furthermore, the settlements — as they are war crimes in the West Bank — could also be judged by the ICC, and the ICC could start prosecution against Israeli political leaders who are responsible.”
      Why is it everyone knows but no one does? What is fit punishment for the enablers? First things first though and bring on the judgment against israel, ICC. I’m still reeling over the report of soldiers making a shepherd leave an area that was his right to be in because it disturbed the unholy settlers’ sensitivities to hear Arabic. Justice, please God, justice.

      • Kay24
        September 8, 2014, 1:05 pm

        For what is is worth, the Arab nations back Abbas’s ultimatum when it comes to the occupation:

        “Arab foreign ministers say they will back Palestinian President Mahmoud Abbas’s efforts to lobby the United Nations to set a deadline for Israel to end its occupation of lands captured in the 1967 war and make way for an independent Palestinian state.

        The Palestinian ambassador to Egypt, Jamal al-Shobaki, said Monday that the Arab League resolution issued a day earlier calls for the head of the Arab League to push the idea in the UN Security Council and other regional and international groups. Al-Shobaki said the foreign ministers are consulting over the draft resolution to be put to the council.”

  2. DICKERSON3870
    September 8, 2014, 1:02 am

    RE: “It was just another Facebook post by a Palestine-friendly blogger, wondering whether any of her FB friends could comment on a Tweet she’d received regarding Article 19 of the 4th Geneva Convention — a tiny provision that appears to sanction the bombing of hospitals that have been commandeered by enemy combatants.”

    “Exclusive: Israel’s Video Justifying Destruction of a Gaza Hospital Was From 2009”, By Gareth Porter, Truthout, Saturday, 06 September 2014

    [EXCERPT] A video distributed by the Israeli military in July suggesting that Palestinian fighters had fired from the Al Wafa Rehabilitation and Geriatric Hospital in Gaza City was not shot during the recent Israeli attack on Gaza, and both audio and video clips were manipulated to cover up the fact that they were from entirely different incidents, a Truthout investigation has revealed.
    The video, released by the Israel Defense Forces (IDF) on July 23, the same day Israeli airstrikes destroyed Al Wafa, was widely reported by pro-Israeli publications and websites as proving that the hospital was destroyed because Hamas had turned the hospital into a military facility. But the video clip showing apparent firing from an annex to the hospital was actually shot during Israel’s 2008-09 “Operation Cast Lead,” and the audio clip accompanying it was from an incident unrelated to Al Wafa.
    The misleading video was only the last in a series of IDF dissimulations about Al Wafa hospital that included false claims that Hamas rockets had been launched from the hospital grounds, or very near it, and that the hospital had been damaged by an attack on the launching site. . .

    SOURCE –

  3. Citizen
    September 8, 2014, 5:53 am

    In light of the applicable international law expressed by the experts above, and by scrutiny of all the criminal charges enlisted against, say Germany, in 1945 at Nuremberg, for example the occupier’s settlements, how is it that the US senate and House members get away with blatant ignorance and/or deflection from such issues, all the while continuing to enable Israel in facto to carry on with such rogue conduct? Is it because they can rely on the US mainstream media not to publish anything about it? I know said congress folks are essentially bought by campaign contributions, one example of “bacon” from special interests. Bacon is the multiplier for congress folks’ rise to and continued maintenance of power seats.

  4. seafoid
    September 8, 2014, 9:00 am

    Power makes the law. Israel signs treaties but breaks them because it can, because of its impunity, because it has people in DC behind it.
    And the system proceeds on that basis. Which is why Israel needs hasbara so bad. Why losing the American people keeps senior bots awake at night. Why why it’ll fall apart one day.

  5. HarryLaw
    September 8, 2014, 1:17 pm

    Abbas said recently “I don’t like to go to the courts”. “I don’t like courts”. and “I want to solve my problems directly between the parties”. That’s alright for him to say on a purely personal basis, but he is supposed to represent millions of Palestinians who have been subject to a long list of war crimes, including murder and crimes against humanity, it is his duty to bring those responsible to justice, he will not of course, so he must step aside. Why Palestinians put up with the fool only they can say.

    • jenin
      September 8, 2014, 4:58 pm

      because as is the case with virtually every aspect of their lives, the Palestinians have no choice. They elected a government (Hamas) democratically and look what happened. Abbas is just the puppet of Israel and the US, and when the Palestinians try to get behind a person or party who actually represents their interests, Israel makes sure to destroy said person or party. Israel and the US will and have done anything and everything to keep the Palestinians down, and that includes making sure they don’t have leaders who will actually help them

  6. seafoid
    September 8, 2014, 1:22 pm

    Israel and the law- what a sad story

    Minorities and the weak are regularly shafted in Israel.
    Here’s another example
    “The police identified on Monday the leader of a cult that they suspect forced as many as 10 women into prostitution and kept control of them by supplying them with drugs and alcohol.
    The suspects allegedly told the women they had to have sex with non-Jewish men “to save the Jewish people and expedite the redemption,” a police statement said.
    Among the eight people arrested in the case, the police identified the leader of the group as David Dvash, also known as David The Best, 60, from Bat Ayin, a community in the West Bank south of Jerusalem.
    Dvash, well known in the settlements and environs, is the father of 15 children by two women; he’s married to both of them. He’s a musician who is deeply immersed in Hasidic spiritual matters. “

    • just
      September 8, 2014, 2:18 pm

      Worse than twisted.

      I read about this yesterday and still can’t fathom this:

      “The suspects allegedly told the women they had to have sex with non-Jewish men “to save the Jewish people and expedite the redemption,” a police statement said.”

      I wondered if the cult of Lehava knew about this.

      I then read this: “The Lehava anti-assimilation group led Judea and Samaria branch police in exposing an extremist Messianic cult that brain-washed Jewish women into taking drugs and having sex with Arab men in order to “bring the redemption.” ”

      What a loony bin.

      I wonder what will happen to these folks.

      • seafoid
        September 8, 2014, 3:00 pm

        There is an awful lot of abuse of religion in Israel and YESHA is often at the heart of it.

    • annie
      September 8, 2014, 2:40 pm

      seafoid, i recall there was a similar case like this a few years ago. i don’t recall it being 4 years tho. the last paragraph is instructive:

      Also on Monday, Goel Ratzon, 64, who 4 1/2 years ago was charged with numerous counts of rape and other sexual offenses involving many women he’d married and his daughters, was convicted in Tel Aviv District Court. He was acquitted of a charge of enslavement. Ratzon had lived with 21 wives and 38 children.

      more on this guy

  7. American
    September 8, 2014, 1:25 pm

    Iam not a inter jurist either but I think Isr would have a hard time using loopholes. Specifically because of the ‘pattern of crimes by the perpetrator’ element in every Article that the court has to look at in each of the crimes Isr would be charged with.
    If you read the Articles you wont find many crimes defined that Isr hasnt committed. In a best case sceniro for Israel , even it avoided war crime charges in Gaza—all the other listed crimes would sink them because of the long term ‘pattern’ of its other crimes….abducting and imprisoning children (under 17), imprisonment without trials, random killings of unarmed citizens by IDF, etc.,etc..

    Ex….this element is found in every ‘judgement’ of whether or not there has been a crime.

    Article 6
    Elements of Crime

    5. ”The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”

    Israel has a 40 year or longer ‘documented’ pattern of its crimes.

  8. American
    September 8, 2014, 1:35 pm

    Another part of the courts judgement of war crimes says that the ‘results’ of the perpertrators actions trumps the ‘intent’ of the perpertrator.
    Iow , whether or not the perpertrator ‘intended’ to committ a war crime, if his actions ‘ result’ in a war crime then a war crime was committed.

  9. gracie fr
    gracie fr
    September 8, 2014, 2:09 pm

    In 1979, a group of Palestinian farmers filed a petition with Israel’s High Court of Justice, claiming their land was being illegally expropriated by Jewish settlers. The farmers were not Israeli citizens, and the settlers appeared to have acted with the state’s support; indeed, army helicopters had escorted them to the land—a hilltop near Nablus—bringing along generators and water tanks. The High Court of Justice nevertheless ordered the outpost dismantled. “The decision of the court… proved that ‘there was justice’ in Jerusalem and that Israel was indeed ruled by Law,” exulted one Israeli columnist.

    But the frustration of the settlers did not last very long. As revealed in The Law in These Parts, an engrossing new Israeli documentary making its American debut at the Sundance Film Festival, just hours after the ruling was handed down, Ariel Sharon, a keen supporter of the settlement project who was then Israel’s Minister of Agriculture, organized a meeting to discuss how to circumvent it. Alexander Ramati, then a legal advisor to the West Bank military command, raised his hand to tell Sharon about an Ottoman concept known as “Mawat land.” The Ottomans, who had controlled Palestine until World War I, had used the term to designate land far enough from any neighboring village that a crowing rooster perched on its edge could not be heard. Under Ottoman law, if such land was not cultivated for three years it was “mawat”—dead —and reverted to the empire. “With or without your rooster, be at my office at 8:00 in the morning,” Sharon told Ramati, who was soon crisscrossing the West Bank in the cockpit of a helicopter, identifying tens of thousands of uninhabited acres that could be labeled “state land” and made available to settlers, notwithstanding the Geneva Convention’s prohibition on moving civilians into occupied territory. In the years that followed, a string of new settlements was built on this territory, eventually prompting another challenge before the Israeli High Court. This time, the Court denied the challenge, ruling that settlement construction was permissible while Israel served as the temporary custodian of the territory. This provided a legal basis for land expropriation that has since enabled hundreds of thousands of Israelis to relocate to the West Bank.

  10. gracie fr
    gracie fr
    September 8, 2014, 2:47 pm

    I am very glad that Mondoweiss is covering the “Israeli Law” angle of the Occupation as it is the unseen scaffold by way of a thousand mendacious cuts and skewered decisions behind the entire Zionist enterprise to discount, disenfranchise, and destroy normalcy in Palestinian life……

    • seafoid
      September 8, 2014, 3:07 pm

      Zionism is like an onion with many layers around a central core. Peel them off one by one to get to the core which is bullshit – the legal basis for the occupation, the focus of Zionism’s efforts since 1967. The outer layers have to be defended vigorously to protect the core nonsense. This is why professor Salaita had to be taken out and why dissenting rabbis are now being pruned.

  11. Bob_Salad
    September 8, 2014, 4:11 pm

    Great article. And very instructive.

    Really helpful to have so many of those important I/P legal issues clarified. They’ll come in handy when responding to the usual apologist fabrications/propaganda etc.

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