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Posts Tagged ‘Noura Erakat

 Can’t have the cake and eat it too: “US, Stop Funding Israel, or Let Others Broker Peace

Noura ErakatHammonton, NJ, United States, posted this August 5, 2014 ·

Alert: Were talking about ending US aid to Israel in the New York Times!

The NYT asked if the US can still be a leader in the Middle East (seriously).

My response: the US needs to stop funding Israel or let others do the job including multilateral institutions that the US has deliberately impeded. Rashid Khalidi is part of this “debate” as are others insisting the US marginalize Hamas and support Israel at all costs.

Thanks to Josh Ruebner & US Campaign to end the occupation for fabulous research on US military aid to Israel.

“The United States has incapacitated the U.N. Security Council by using its veto power to shield Israel from accountability 40 times between 1972 and 2011.

The only other situation where the U.S. used its veto power so systematically was to protect colonial and apartheid regimes in South Africa, Rhodesia and Namibia.”

U.S. Should Stop Funding Israel, or Let Others Broker Peace

Noura Erakat

Noura Erakat, a human rights lawyer, is an assistant professor at George Mason University and co-founder and co-editor of Jadaliyya.

August 5, 2014

As Israel’s primary patron of economic, military and diplomatic support, the United States has a duty and the capacity to help resolve the Palestinian-Israel conflict. It should either comply with its domestic laws and cease military aid to Israel or simply step aside and allow international mechanisms to function without obstruction.

Ending aid will either restrain Israel and facilitate a political resolution or encourage a backlash that induces the global community to intervene.

Between 1949 and 2008, the U.S. has provided Israel with $103.6 billion, more than all of the foreign aid it has provided to Sub-Saharan Africa and Latin America combined.

Since 2000, it has provided Israel with $3.5 billion worth of F-16s and $77 billion in Apaches.

Military aid to foreign states is subject to several U.S. laws including the Arms Export Control Act , the Foreign Assistance Act and the Leahy Law. Each of these laws conditions the receipt of aid on the furtherance of human rights.

The Department of State annually notes Israel’s systematic abuse of human rights against Palestinians.

Congress has nevertheless renewed aid to Israel without scrutiny either by willful ignorance or disregard.

In the eyes of our 535 elected representatives, Israel can do no wrong.

This has not always been the case.

The Reagan administration halted its cluster munitions sales to Israel between 1982 and 1988 in response to Israel’s disproportionate and indiscriminate attack on civilians in Beirut.

In 1991, the George H.W. Bush administration conditioned its loan guarantees to Israel on the cessation of its settlement expansion in the Occupied Palestinian Territory.

The United States has ample evidence of Israel’s human rights violations that should trigger these laws today. In its most recent offensive, Israel has dropped over 100 one-ton bombs, hardly precise and discriminate weaponry, onto the densely populated and besieged Gaza Strip.

Human Rights Watch documented Israeli ground forces shooting and killing fleeing Palestinian families in Khuza’a between July 23 and 25. Amnesty International documented the killing of 45 civilians in the Occupied West Bank over the past three years.

 

Cessation of American military aid to Israel will create at least two possibilities in the long run. On the one hand, it can restrain Israel, thereby creating more opportunities for a political resolution to the conflict. On the other hand, it could have the opposite effect and motivate Israel to pursue more maximalist policies, thereby increasing the cost of its transgressions. This will likely induce the international community to effectively intervene à la the South African model.

Short of complying with its own laws, the United States can also step aside and allow international mechanisms to function. The United States has incapacitated the U.N. Security Council by using its veto power to shield Israel from accountability 40 times between 1972 and 2011.

The only other situation where the U.S. used its veto power so systematically was to protect colonial and apartheid regimes in South Africa, Rhodesia and Namibia. The United States has similarly undermined the efficacy of the <href=”#v=onepage&q&f=false”>International Court of Justice, the Human Rights Council and, as we are currently witnessing, the International Criminal Court.

The U.S. is a central part of the problem in the Palestinian-Israel conflict. To be a part of the solution, it needs to do less, not more.

 

Join Room for Debate on Facebook and follow updates on twitter.com/roomfordebate.

http://nyti.ms/1svlYIN

 

The Case for Sanctions Against Israel

Ebook now available for download for free.

Leading international voices argue for boycott, divestment and sanctions against Israel.

In July 2011, Israel passed legislation outlawing the public support of boycott activities against the state, corporations, and settlements, adding a crackdown on free speech to its continuing blockade of Gaza and the expansion of illegal settlements.

Nonetheless, the campaign for boycott, divestment, and sanctions (BDS) continues to grow in strength within Israel and Palestine, as well as in Europe and the US.

This essential intervention considers all sides of the movement—including detailed comparisons with the South African experience—and contains contributions from both sides of the separation wall, along with a stellar list of international commentators.

With contributions by Ra’anan Alexandrowicz, Merav Amir, Hind Awwad, Mustafa Barghouthi, Omar Barghouti, Dalit Baum, Joel Beinin, John Berger, Angela Davis, Nada Elia, Marc H. Ellis, Noura Erakat, Neve Gordon, Ran Greenstein, Ronald Kasrils, Jamal Khader, Naomi Klein, Paul Laverty, Mark LeVine, David Lloyd, Ken Loach, Haneen Maikey, Rebecca O’Brien, Ilan Pappe, Jonathan Pollak, Laura Pulido, Lisa Taraki, Rebecca Vilkomerson, Michael Warschawski, and Slavoj Žižek

No rockets from anywhere in West Bank: And yet…

Noura Erakat posted this July 22, 2014 on FB

Yesterday Israeli soldiers clashed with Palestinian youth and used live fire in Nablus, Hebron, Jerusalem, and surrounding villages.

Israeli police also clashed with 200 Palestinian-Israelis in Nazareth.

There are no rockets from anywhere in the West Bank. There are no rockets from Jerusalem where the population is subject to ethnic cleansing as explicitly stated in its 2000 Jerusalem Master Plan to shift the demographic balance of Jews to Christian and Muslim Palestinians from 60:40 to 70:30.

There are no rockets in the Negev where Israel seeks to forcefully displace 70,000 Palestinian citizens of Israel to make room for a Jewish-only settlement. Israel does not have a problem with Hamas, it has a problem with Palestinians.

The attacks on the besieged population of the Gaza Strip are horrific.

I struggle to even write 650, because one death is too many and yet we have become conditioned to expect suffering in the hundreds in the form of decapitated bodies, flailing limbs, charred faces.

I struggle to even write 4,000 terribly injured civilians with barely a hospital to treat them with archaic equipment and medication.

But emphasis on Israel’s war on Gaza or headlines about Israel and Hamas attempt to separate and make Palestinians in Gaza exception from the rest of the global Palestinian nation.

This is a diversion from Israel’s primary problem: it cannot be Jewish and democratic.

Being Jewish means that it MUST discriminate as a matter of fact and no country whose constitution is predicated on such stark discrimination (from slavery and Jim Crow in the US to Apartheid in South Africa) is sustainable.

The debate among sympathetic liberal Zionists is about how much discrimination is acceptable. The conversation we are pushing is that discrimination, subjugation, and supremacy in all its forms is unacceptable.

Israel seeks to either placate, co-opt, or force the Palestinian population into submission. But it is not in our human nature to submit.

Like all people, Palestinians fight to live; not just during spectacular episodes of carnage and destruction but daily, year round, for decades through resilience, sumoud (steadfast) protests, storytelling, cooking, dancing, singing, loving, and memory. You can’t blow that up.

 

Four Palestinian kids killed while playing football on beach: Israeli warships open fire
Israel airstrikes and navy bombardment systematically target hospitals and handicapped institutions in Gaza
Four young boys – members of the same family – playing football and hide and seek on the beach were killed today by what is believed to have been gunfire from Israeli warships carrying out a blockade of Gaza.

Game ends in death for the sons of fishermen, cut down on a sunny and clear afternoon
The attack on the fishing port in Gaza City came at just after four o’clock on a sunny and clear afternoon with good visibility.
The group of cousins, aged between nine and 11, were around what looked like a derelict shed when they were hit by a shell from the direction of the sea.
Three of them managed to run to the terrace of a hotel, where their injures were treated by staff and journalists who have been staying there. Of the four others, who had more severe wounds, one died at the scene, the other three after arriving at the hospital.
“The kids were playing football on the beach. They were all… under the age of 15,” said witness Ahmed Abu Hassera, 22.     All the victims were sons of fishermen. Ismael Mohammed Bakr, nine, Zakaria Ahed Bakr and Ahed Atif Bakr, both 10, and Mohammed Ramiz Bakr, were the dead.
There was grief and rage with an uncle, Abdel Kareem Bakr, accusing the Israeli forces of “cold blooded massacre”.
“It’s a shame they didn’t identify them as just kids with all the advanced technology they had been using,” he said. “I don’t know what justification they will use for what they did, but our boys are now gone.
Nine days of violence has cost 213 lives and led to more than 1,200 injuries in Gaza. The overwhelming number of civilian dead, including children, have come from air strikes. The Israeli military have, however, repeatedly targeted the port, destroying a number of buildings as well as vessels. (As of today July 20, the number of Palestinians killed reached over 420 and more than 3,500 severely injured)

The fishermen who are based there strenuously deny that any arms, including rocket launchers have been based there. Mohammed Fares, a 33-year-old waiter at al-Deira Hotel, watched what happened from the terrace. “We often see boys playing on the beach, this is quite common. Suddenly there was an explosion and I could see a group of them fall. Some people working in cafes on the beach came out to help,” he said.

“As they trying to look after the kids there was another explosion, it must have been aimed at them. “Three of the kids started running towards us and we dragged them up on to the terrace where the journalists and others gave them medical help. Of course the ones left on the beach were much more badly hurt and they died. It is very, very sad.”

The beach attack took place on a violent day as Benjamin Netanyahu’s government ratcheted up the offensive. It had threatened in retaliation for the refusal of Hamas to agree to a ceasefire agreement proposed by Egypt.

Around 30 houses were targeted including those of senior Hamas leaders Mahmoud Zahar, Jamila Shanti, Fathi Hamas and Ismail Ashkar. Mr Zahar was a key figure in Hamas’ violent takeover of Gaza from Fatah in 2007: the other three were members of the Palestinian parliament elected in 2006.

The Israeli military also ordered more than 100,000 residents of the northern town of Beit Lahiya and the Zeitoun and Shijaiyah neighborhoods of Gaza City, all near the border with Israel, to evacuate their homes by 8am, the calls to evacuate came in the form of automated phone calls, text messages and leaflets dropped from planes. Palestinian children run to collect leaflets dropped by Israeli Defense Forces over the Shujaiyya neighbourhood in east Gaza CityPalestinian children run to collect leaflets dropped by Israeli Defense Forces over the Shujaiyya neighbourhood in east Gaza City.

Later, Israel’s military said it would hold a five-hour ceasefire for “humanitarian” reasons on Thursday. It also said it was investigating the deaths of the four children, saying the “target of this strike was Hamas terrorist operatives” and the “reported civilian causalities from this strike are a tragic outcome”.

Although many fled their homes, adding to the thousands who had become internal refugees, many others refused to move. At Zeitun, Ahmed Abdullah Rahimi declared that his extended family of 18 would await “bombs, or soldiers, or whatever they have got planned for us”.

Rahimi said: “This is our land, if they burn down our home, we will build again. Some people had left this area in the past, but they came back when the Israelis did not invade. Maybe they will invade this time, hey may kill people around here, but we are not afraid.

Late in the afternoon, as the sun was setting, 32-year-old Dia Bakr was on the beach where four of his younger cousins had died. “We are a large family and we spend a lot of time together. I taught some of them football on this beach, we used to even have picnics here when there was peace. No one thought they would be in any danger here, in daytime, at a place where they had played all their lives.

There are so many hotels here. People staying here can see what’s going on. We thought they would be safe because they were just children of fishermen. We thought they were safe because they were children. Surely whoever did the firing could see that?”

Almost 80% of Palestinians killed in Gaza by Israeli bombardments have been civilians, the UN has said.
A report raised “concerns about the respect for international humanitarian law” as the impact on families was revealed. The death toll in Gaza has risen to 182 and more bloodshed was feared on Tuesday as Hamas did not follow the Israeli Government’s approval of ceasefire terms proposed by Egypt.
According to figures from the United Nations Office for the Co-ordination of Humanitarian Affairs (Ocha) 77%  of fatalities since the start of Operation Protective Edge on 7 July have been civilians. Of the 138 killed when the report was completed, 36 were children, and 1,361 Palestinians had been injured. Out of wounded Palestinians, almost 390 were children and 250 were women. Israel has targeted the homes of Hamas leaders and buildings, including mosques, allegedly used to store weapons and as meeting points for militants.
The military has repeatedly claimed that the buildings are legitimate targets but the UN report said the targeting of civilian homes is a violation of international humanitarian law unless the homes are being used for military purposes. It added: “In case of doubt, buildings ordinarily used for civilian purposes, such as homes, are presumed not to be legitimate military targets.”
ISRAELI AIR STRIKE DESTROYS HOME FOR THE DISABLED
Note: The Hebrew-language daily Maariv reported Hamas and Islamic Jihad demands:
1. Remove tanks from western border
2. Allow farmers to farm
3. Allow airport to function
4. Release re-arrested prisoners
5. Open naval zone 10 nautical miles to fisherman
6. Lift the siege
As Noura Erakat said: “All these demands are life affirming.”

 

ISRAELI AIR STRIKE DESTROYS HOME FOR THE DISABLED
More than 1,250 homes have been destroyed or severely damaged so far and more than half a million people risk losing their water supply because it is too dangerous for contractors to fix damaged pipelines.

Tens of thousands of Palestinians have already fled their homes in northern Gaza following leaflets warning of an Israeli ground offensive and 17,000 have taken refuge at UN-operated schools.

A statement released on Monday also condemned the launching of rockets by Hamas and other militant groups from densely populated residential areas.

James Rawley, the UN’s Humanitarian Co-ordinator for the Occupied Palestinian Territories, warned of a looming humanitarian crisis as agencies struggle with damage to health, education, water and sanitation facilities, as well as power lines.

“Our thoughts must first be with those many civilians who have already lost their lives, and the even greater number of who have suffered physical or psychological injuries,” he added.

“While we await those much needed steps [towards peace], we must once again remind all parties that they must strictly adhere to international humanitarian law.”

Mr Rawley said precautions must be taken to avoid civilian casualties and there must be “proportionality” in operations, adding that military assets should not be kept in residential areas.

The Israeli tactic of using “knock-on-the-door” missiles to warn people to evacuate before a strike has also been criticised, with opponents saying rockets that do not explode are still a danger to life.

The recent conflict is only a part of an ongoing “cycle of violence” in the region that is compounded by poverty, unemployment and food shortages in Gaza caused by years of strict movement restrictions imposed by Israel, Mr Rawley said.

He added: “My thoughts are particularly with Gaza’s children, not only those who are already casualties of this latest conflict, but all of Gaza’s children for whom fear and insecurity are a not only a reality today but a scar that will endure for a lifetime.”

Note: The Hebrew-language daily Maariv reported Hamas and Islamic Jihad demands:
1. Remove tanks from western border
2. Allow farmers to farm
3. Allow airport to function
4. Release re-arrested prisoners
5. Open naval zone 10 nautical miles to fisherman
6. Lift the siege
As Noura Erakat said: “All these demands are life affirming.”

READ MORE:AIR STRIKE DESTROYS HOME FOR THE DISABLED
MOSQUES TARGETED BECAUSE ‘USED TO STORE ROCKETS’
THE TERRIBLE PRICE CHILDREN ARE PAYING FOR WAR WITH HAMAS

 

No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory

On the 4th 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 Gaza 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. 

Noura Erakat posted on Jadaliyya this July 11, 2014

Listen to this page using ReadSpeaker
[Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.] [Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.]

[In view of Israel’s assertions that it’s 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.]
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, enforcing 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 in Occupation 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 bello legal 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, Israel 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 to defend 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 hierarchical 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.


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