Thursday, August 21, 2014
Wednesday, August 20, 2014
[In view of Israel's assertions that its current attacks on the Gaza Strip are an exercise in legitimate self-defense, Jadaliyya re-posts an analysis of this claim by Co-Editor Noura Erakat initially published in 2012.]
On the fourth day of Israel's most recent onslaught against Gaza's Palestinian population, President Barack Obama declared, “No country on Earth would tolerate missiles raining down on its citizens from outside its borders.” In an echo of Israeli officials, he sought to frame Israel's aerial missile strikes against the 360-square kilometer Strip as the just use of armed force against a foreign country. Israel's ability to frame its assault against territory it occupies as a right of self-defense turns international law on its head.
A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law.
Admittedly, the enforceability of international law largely depends on voluntary state consent and compliance. Absent the political will to make state behavior comport with the law, violations are the norm rather than the exception. Nevertheless, examining what international law says with regard to an occupant’s right to use force is worthwhile in light of Israel's deliberate attempts since 1967 to reinterpret and transform the laws applicable to occupied territory. These efforts have expanded significantly since the eruption of the Palestinian uprising in 2000, and if successful, Israel’s reinterpretation would cast the law as an instrument that protects colonial authority at the expense of the rights of civilian non-combatants.
Israel Has A Duty To Protect Palestinians Living Under Occupation
Military occupation is a recognized status under international law and since 1967, the international community has designated the West Bank and the Gaza Strip as militarily occupied. As long as the occupation continues, Israel has the right to protect itself and its citizens from attacks by Palestinians who reside in the occupied territories. However, Israel also has a duty to maintain law and order, also known as “normal life,” within territory it occupies. This obligation includes not only ensuring but prioritizing the security and well-being of the occupied population. That responsibility and those duties are enumerated inOccupation Law.
Occupation Law is part of the laws of armed conflict; it contemplates military occupation as an outcome of war and enumerates the duties of an occupying power until the peace is restored and the occupation ends. To fulfill its duties, the occupying power is afforded the right to use police powers, or the force permissible for law enforcement purposes. As put by the U.S. Military Tribunal during the Hostages Trial (The United States of America vs. Wilhelm List, et al.)
International Law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility.
The extent and breadth of force constitutes the distinction between the right to self-defense and the right to police. Police authority is restricted to the least amount of force necessary to restore order and subdue violence. In such a context, the use of lethal force is legitimate only as a measure of last resort. Even where military force is considered necessary to maintain law and order, such force is circumscribed by concern for the civilian non-combatant population. The law of self-defense, invoked by states against other states, however, affords a broader spectrum of military force. Both are legitimate pursuant to the law of armed conflict and therefore distinguished from the peacetime legal regime regulated by human rights law.
When It Is Just to Begin to Fight
The laws of armed conflict are found primarily in the Hague Regulations of 1907, the Four Geneva Conventions of 1949, and their Additional Protocols I and II of 1977. This body of law is based on a crude balance between humanitarian concerns on the one hand and military advantage and necessity on the other. The post-World War II Nuremberg trials defined military exigency as permission to expend “any amount and kind of force to compel the complete submission of the enemy…” so long as the destruction of life and property is not done for revenge or a lust to kill. Thus, the permissible use of force during war, while expansive, is not unlimited.
In international law, self-defense is the legal justification for a state to initiate the use of armed force and to declare war. This is referred to as jus ad bellum—meaning “when it is just to begin to fight.” The right to fight in self-defense is distinguished from jus in bello, the principles and laws regulating the means and methods of warfare itself. Jus ad bellum aims to limit the initiation of the use of armed force in accordance with United Nations Charter Article 2(4); its sole justification, found in Article 51, is in response to an armed attack (or an imminent threat of one in accordance with customary law on the matter). The only other lawful way to begin a war, according to Article 51, is with Security Council sanction, an option reserved—in principle, at least—for the defense or restoration of international peace and security.
Once armed conflict is initiated, and irrespective of the reason or legitimacy of such conflict, the jus in bellolegal framework is triggered. Therefore, where an occupation already is in place, the right to initiate militarized force in response to an armed attack, as opposed to police force to restore order, is not a remedy available to the occupying state. The beginning of a military occupation marks the triumph of one belligerent over another. In the case of Israel, its occupation of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai in 1967 marked a military victory against Arab belligerents.
Occupation Law prohibits an occupying power from initiating armed force against its occupied territory. By mere virtue of the existence of military occupation, an armed attack, including one consistent with the UN Charter, has already occurred and been concluded. Therefore the right of self-defense in international law is, by definition since 1967, not available to Israel with respect to its dealings with real or perceived threats emanating from the West Bank and Gaza Strip population. To achieve its security goals, Israel can resort to no more than the police powers, or the exceptional use of militarized force, vested in it by IHL. This is not to say that Israel cannot defend itself—but those defensive measures can neither take the form of warfare nor be justified as self-defense in international law. As explained by Ian Scobbie:
To equate the two is simply to confuse the legal with the linguistic denotation of the term ”defense.“ Just as ”negligence,“ in law, does not mean ”carelessness” but, rather, refers to an elaborate doctrinal structure, so ”self-defense” refers to a complex doctrine that has a much more restricted scope than ordinary notions of ”defense.“
To argue that Israel is employing legitimate “self-defense” when it militarily attacks Gaza affords the occupying power the right to use both police and military force in occupied territory. An occupying power cannot justify military force as self-defense in territory for which it is responsible as the occupant. The problem is that Israel has never regulated its own behavior in the West Bank and Gaza as in accordance with Occupation Law.
Israel’s Attempts To Change International Law
Since the beginning of its occupation in 1967, Israel has rebuffed the applicability of international humanitarian law to the Occupied Palestinian Territory (OPT). Despite imposing military rule over the West Bank and Gaza, Israel denied the applicability of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (the cornerstone of Occupation Law). Israel argued because the territories neither constituted a sovereign state nor were sovereign territories of the displaced states at the time of conquest, that it simply administered the territories and did not occupy them within the meaning of international law. The UN Security Council, the International Court of Justice, the UN General Assembly, as well as the Israeli High Court of Justice have roundly rejected the Israeli government’s position. Significantly, the HCJ recognizes the entirety of the Hague Regulations and provisions of the 1949 Geneva Conventions that pertain to military occupation as customary international law.
Israel’s refusal to recognize the occupied status of the territory, bolstered by the US’ resilient and intransigent opposition to international accountability within the UN Security Council, has resulted in the condition that exists today: prolonged military occupation. Whereas the remedy to occupation is its cessation, such recourse will not suffice to remedy prolonged military occupation. By virtue of its decades of military rule, Israel has characterized all Palestinians as a security threat and Jewish nationals as their potential victims, thereby justifying the differential, and violent, treatment of Palestinians. In its 2012 session, the UN Committee on the Elimination of Racial Discrimination described current conditions following decades of occupation and attendant repression as tantamount to Apartheid.
In complete disregard for international law, and its institutional findings, Israel continues to treat the Occupied Territory as colonial possessions. Since the beginning of the second Palestinian intifada in 2000, Israel has advanced the notion that it is engaged in an international armed conflict short of war in the West Bank and the Gaza Strip. Accordingly, it argues that it can 1) invoke self-defense, pursuant to Article 51 of the United Nations Charter, and 2) use force beyond that permissible during law enforcement, even where an occupation exists.
The Gaza Strip Is Not the World Trade Center
To justify its use of force in the OPT as consistent with the right of self-defense, Israel has cited UN Security Council Resolution 1368 (2001) and UN Security Council Resolution 1373 (2001). These two resolutions were passed in direct response to the Al-Qaeda attacks on the United States on 11 September 2001. They affirm that those terrorist acts amount to threats to international peace and security and therefore trigger Article 51 of the UN Charter permitting the use of force in self-defense. Israel has therefore deliberately characterized all acts of Palestinian violence – including those directed exclusively at legitimate military targets – as terrorist acts. Secondly it frames those acts as amounting to armed attacks that trigger the right of self-defense under Article 51 irrespective of the West Bank and Gaza’s status as Occupied Territory.
The Israeli Government stated its position clearly in the 2006 HCJ case challenging the legality of the policy of targeted killing (Public Committee against Torture in Israel et al v. Government of Israel). The State argued that, notwithstanding existing legal debate, “there can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack,” effectively permitting Israel to use military force against those entities. Therefore, Israeli officials claim that the laws of war can apply to “both occupied territory and to territory which is not occupied, as long as armed conflict is taking place on it” and that the permissible use of force is not limited to law enforcement operations. The HCJ has affirmed this argument in at least three of its decisions:Public Committee Against Torture in Israel et al v. Government of Israel, Hamdan v. Southern Military Commander, and Physicians for Human Rights v. The IDF Commander in Gaza. These rulings sanction the government’s position that it is engaged in an international armed conflict and, therefore, that its use of force is not restricted by the laws of occupation. The Israeli judiciary effectively authorizes the State to use police force to control the lives of Palestinians (e.g., through ongoing arrests, prosecutions, checkpoints) and military force to pummel their resistance to occupation.
The International Court of Justice (ICJ) dealt with these questions in its assessment of the permissible use of force in the Occupied West Bank in its 2004 Advisory Opinion, Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory. The ICJ reasoned that Article 51 contemplates an armed attack by one state against another state and “Israel does not claim that the attacks against it are imputable to a foreign state.” Moreover, the ICJ held that because the threat to Israel “originates within, and not outside” the Occupied West Bank,
the situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defense. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.
Despite the ICJ's decision, Israel continues to insist that it is exercising its legal right to self-defense in its execution of military operations in the West Bank and the Gaza Strip. Since 2005, Israel slightly changed its position towards the Gaza Strip. The government insists that as a result of its unilateral disengagement in 2005, its occupation has come to an end. In 2007, the government declared the Gaza Strip a “hostile entity” and waged war upon the territory over which it continues to exercise effective control as an Occupying Power. Lisa Hajjar expounds on these issues here.
In effect, Israel is distorting/reinterpreting international law to justify its use of militarized force in order to protect its colonial authority. Although it rebuffs the de jure application of Occupation Law, Israel exercises effective control over the West Bank and Gaza and therefore has recourse to police powers. It uses those police powers to continue its colonial expansion and apartheid rule and then in defiance of international law cites its right to self-defense in international law to wage war against the population, which it has a duty to protect. The invocation of law to protect its colonial presence makes the Palestinian civilian population doubly vulnerable. Specifically in the case of Gaza,
It forces the people of the Gaza Strip to face one of the most powerful militaries in the world without the benefit either of its own military, or of any realistic means to acquire the means todefend itself.
More broadly, Israel is slowly pushing the boundaries of existing law in an explicit attempt to reshape it. This is an affront to the international humanitarian legal order, which is intended to protect civilians in times of war by minimizing their suffering. Israel’s attempts have proven successful in the realm of public relations, as evidenced by President Obama’s uncritical support of Israel’s recent onslaughts of Gaza as an exercise in the right of self-defense. Since international law lacks a hierarchal enforcement authority, its meaning and scope is highly contingent on the prerogative of states, especially the most powerful ones. The implications of this shift are therefore palpable and dangerous.
Failure to uphold the law would allow states to behave according to their own whim in furtherance of their national interest, even in cases where that is detrimental to civilian non-combatants and to the international legal order. For better or worse, the onus to resist this shift and to preserve protection for civilians rests upon the shoulders of citizens, organizations, and mass movements who can influence their governments enforce international law. There is no alternative to political mobilization to shape state behavior.
By Noura Erakat
Tuesday, August 19, 2014
Monday, August 18, 2014
Saved Jews During Nazi Holocaust, Now Returns His Medal To Israel
He saved Jews during the Nazi Holocaust, but now a 91-year-old Dutch man who was declared a Righteous Among the Nations by the Israeli Yad Vashem Holocaust museum has given his award back.
During the German occupation of his nation, Henk Zanoli had bravely risked his life for the sake of others. But on Thursday returned his medal and certificate to Yad Vashem because six of his relatives were killed by an Israeli Defense Forces bombing campaign in the Gaza Strip last month.
Back in 2011, the Yad Vashem Holocaust museum awarded both Henk Zanoli and his late mother, Johana Zanoli-Smit, the Righteous Among the Nations award for having saved a Jewish child, Elhanan Pinto, when the Nazis occupied Holland. Zanoli’s own father was sent to the Dachau concentration camp in 1941 as a result of his politically outspoken opposition to the occupation.
He eventually would die at the Mauthausen concentration camp in the month of February 1945. Zanoli’s brother-in-law was executed as well, for resistance against the Nazi war machine. One of his brothers, as well, had a Jewish fiancée, and was killed by the Nazis.
But Zanoli’s great-niece, Angelique Eijpe, is a Dutch diplomat. She is the head of her nation’s diplomatic mission in the country of Oman. Her husband is the economist Isma’il Ziadah, who was born in the al-Bureij refugee camp located in central Gaza. Ziadah’s parents were born in now renamed town of Fallujah, which is now known as town of Kiryat Gat.
On Sunday, July 20, an Israeli jet bombed the Ziadah family’s home in al-Bureij. Zanoli’s relatives: Muftiyah, 70; three of her sons, Jamil, Omar and Youssef; Jamil’s wife, Bayan; and their 12-year-old son, Shaaban were all killed. None of them were terrorists. All of them were civilians.
Now, Zanoli has returned his award to the Israeli Embassy in The Hague – exactly where he received them in an official ceremony three years ago. He sent the following letter, addressed to Ambassador Haim Davon.
Zanoli opened by explaining the high price his family paid for fighting for the lives and rights of the Jewish people.
“Against this background it is particularly shocking and tragic that today, four generations on, our family is faced with the murder of our kin in Gaza. Murder carried out by the State of Israel,” he explained.
Read the full letter, embedded, below:
Ambassador Haim Davon
Embassy of Israel
Buitenhof 472513 AH
August 11 2014
Subject: Return of medal of honour
It is with great sorrow that I am herewith returning the medal I received as an honour and a token of appreciation from the State of Israel for the efforts and risks taken by my mother and her family in saving the life of a Jewish boy during the German occupation of The Netherlands.
My mother and her nuclear family risked their lives fighting the German occupation. My mother lost her husband who was deported to Dachau as early as 1941 because of his open and outspoken opposition to the German occupation. He eventually perished in Mauthausen Concentration Camp. My sister lost her husband who was executed in the dunes of The Hague for his involvement in the resistance. In addition to this my brother lost his Jewish fiancée who was deported, never to return.
My steadfast and heroic mother nevertheless continued the struggle, amongst others, by taking in an 11 year old Jewish boy in her home risking both her own life and that of her children. This boy survived the war under the wings of my mother and eventually moved to Israel.
Against this background it is particularly shocking and tragic that today, four generations on, our family is faced with the murder of our kin in Gaza. Murder carried out by the State of Israel.
The great- great grandchildren of my mother have lost their grandmother, three uncles, an aunt and a cousin at the hands of the Israeli army. Their family apartment building in Bureij Refugee Camp in Gaza was bombed on July 20 from an Israeli F16, turning the four storey building to rubble, leaving every single family member inside it dead.
I understand that in your professional role, in which I am addressing you here, you may not be able to express understanding for my decision. However, I am convinced that at both a personal and human level you will have a profound understanding of the fact that for me to hold on to the honour granted by the State of Israel, under these circumstances, will be both an insult to the memory of my courageous mother who risked her life and that of her children fighting against suppression and for the preservation of human life as well as an insult to those in my family, four generations on, who lost no less than six of their relatives in Gaza at the hands of the State of Israel.
On a more general note the following. After the horror of the holocaust my family strongly supported the Jewish people also with regard to their aspirations to build a national home. Over more than six decades I have however slowly come to realize that the Zionist project had from its beginning a racist element in it in aspiring to build a state exclusively for Jews. As a consequence, ethnic cleansing took place at the time of the establishment of your state and your state continues to suppress the Palestinian people on the West Bank and in Gaza who live under Israeli occupation since 1967.
The actions of your state in Gaza these days have already resulted in serious accusations of war crimes and crimes against humanity. As a retired lawyer it would be no surprise to me that these accusations could lead to possible convictions if true and unpoliticized justice is able to have its course. What happened to our kin in Gaza will no doubt be brought to the table at such a time as well.
The only way out of the quagmire the Jewish people of Israel have gotten themselves into is by granting all living under the control of the State of Israel the same political rights and social and economic rights and opportunities. Although this will result in a state no longer exclusively Jewish it will be a state with a level of righteousness on the basis of which I could accept the title of ‘Righteous among the Nations’ you awarded to my mother and me together with the medal.
Today I am a 91 year old man who does not expect radical change with regard to the current sad reality within my, most likely, still limited lifetime. If your state would be willing and able to transform itself along the lines set out above and there would still be an interest at that time in granting an honour to my family for the actions of my mother during the second world war, be sure to contact me or my descendants.
“The great- great grandchildren of my mother have lost their [Palestinian] grandmother, three uncles, an aunt and a cousin at the hands of the Israeli army … For me to hold on to the honor granted by the State of Israel, under these circumstances, will be both an insult to the memory of my courageous mother who risked her life and that of her children fighting against suppression and for the preservation of human life as well as an insult to those in my family, four generations on, who lost no less than six of their relatives in Gaza at the hands of the State of Israel.”
Israel’s actions in Gaza, he said further, “have already resulted in serious accusations of war crimes and crimes against humanity. As a retired lawyer it would be no surprise to me that these accusations could lead to possible convictions if true and unpoliticized justice is able to have its course. What happened to our kin in Gaza will no doubt be brought to the table at such a time as well.”
Sunday, August 17, 2014
Mother don't cry for me I am heading off to war
God almighty is my armour and sword
Palestine, Forever Palestine
Children being killed for throwing stones in the sky
They say to their parents don't worry, God is on our side
Palestine, Forever Palestine
Mother don't worry when they come for us at night
Surely they'll be sorry when God puts them right
Tell me why they're doing what was done to them
Don't they know that God is with the oppressed and needy
Perished were the nations that ruled through tyranny
Palestine, Forever Palestine
Children of Palestine are fighting for their lives
They say to their parents we know that Palestine is our right
They to say to their parents well fight for what is right
They say not to worry God is on our side
They say well die for Palestine
Palestine, Forever Palestine
Artist: Sami Yusuf
Saturday, August 16, 2014
Incredible footage of Palestine and Jerusalem from the year 1896. Muslims, Jews and Christians lived next to each other and peacefully under the auspices of the Ottoman (Uthmani) Caliphate/Empire.