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Israel’s Challenge to the International Legal Order (Gaza Part II)

[Image from nytimes.com] [Image from nytimes.com]

In Part I of this series, I explored the illegality of the Gaza blockade irrespective of whether or not it amounts to collective punishment. I also posit that Israel’s blatant refutation of the International Court of Justice’s holding on the scope of legal self-defense and its non-applicability to occupied territories amounts to a direct challenge to the international legal order. Namely Israel challenges the scope of permissible use of force during an occupation as well as the legal definition of self-defense. As noted by George Bisharat, et. al. in their comprehensive law review piece on Operation Cast Lead, Israel’s offensive against Gaza, Israel’s attempts to change the law are conscious and deliberate. Consider the statement made by the former head of the International Law Division of the Israeli Military Advocate General:

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries…international law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into legal moulds. Eight years later it is at the center of the bounds of legitimacy.[1]  

According to the Laws of Occupation, an occupying power cannot use deadly force within the territory it occupies, but instead only the force available during law enforcement operations. Erasure of this distinction would change the law and dramatically expand the legitimate use of military force. In the case of occupation, it justifies the declaration of war by an occupying power against the civilians it occupies making them doubly vulnerable to warfare. This possibility raises a serious question for the future of international humanitarian law: can a non-state entity emerging from occupied territories commit an armed attack against its occupying power within the meaning of Article 51 thereby triggering the just use of force and if so, can that override an existing legal regime as is the case when an occupation already exists?

Although this legal issue is not settled as evidenced by the question’s very emergence, I am assuming that the consensus view is that the two regimes, jus ad bellum and jus in bello, are incompatible and that an occupying power cannot declare war on the territory that it occupies. I base my assumption on the fact that the ICJ, the world’s highest legal authority, has already ruled on this matter, and since challenge to its analysis has only been advanced by one state, that there does not exist sufficient debate to justify the law’s transformation. While a tangible shift in international law has not been realized by Israel, at the very least its arguments and its consistent contravention of existing international norms have blurred the demarcation between jus ad bellum and jus in bello thereby creating confusion where the ICJ has tried to achieve clarity.

 Israel’s deliberate use of legal self-defense in the OPTs fits squarely within an ongoing debate on the parameters of self-defense that began at least since the United States’ attack on Iraq in the early 1990s. The debate explores whether the legal definition of self-defense should subject to broad framework of customary international law[2] or alternatively within the narrow scope of self-defense as defined by the UN Charter,[3] whether it can be invoked against a non-state entity especially in an age where non-state actors have conducted international attacks,[4] and finally whether a State should be bound by international law at all in determining whether or not it needs to defend itself.[5]  

While the ICJ made clear that Article 51 self-defense is not available to occupying powers in the territories it occupies, 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. Its insistence is critical because as a legal matter the scope of self-defense is not settled as is reflected by varied legal scholarship on the topic. Since 2005, Israeli officials have nuanced its position towards the Gaza Strip and rather than conflate the two legal regimes, they have insisted that its occupation has come to an end and that the only applicable legal regime is that of self-defense. Even so, Israel’s legal position amounts to a challenge of the legal order because as demonstrated above, Gaza remains occupied as a matter of law.

Israel’s insistence that Gaza is not occupied, despite the near international consensus to the contrary, as well as its insistence that it is can use force beyond that permissible for law enforcement irrespective of a territory’s occupied status, works to blur the frameworks of jus ad bellum and jus in bello so that the law is not clear on the one hand, and on the other it slowly pushes the boundaries of existing law in an attempt to reshape it. Such an attempt would be detrimental to the existing international humanitarian legal order which is intended to protect civilians in times of war by minimizing their suffering. Specifically, in the case of Gaza, this would afford Israel the advantage of applying law enforcement force upon Gaza’s population, denying them of subsistence, sovereignty, and adequate means to defend itself, as well as legitimate force available during armed hostilities. Moreover, because Israel insists that it ended its occupation upon disengagement from Gaza in 2005 it has rebuffed its duties as an occupying power. Essentially, Israel would render Gaza a legal black hole where the only applicable law was its own. 

In addition to the devastating impact on international peace and security, specifically on Gaza’s population, Israel’s attempts, at the very least, leaves confusion where there should exist clarity about the relationship between jus ad bellum and jus in bello. Such lack of clarity serves to undermine the entire regime of occupation law, which is intended to afford greater protection to civilian populations. Alternatively the lack of clarity expands the available use of force to states and empowers them determine what the law is in the furtherance of its national interests. This blatantly undermines the purpose of humanitarian law, which is not meant to embolden states but to protect civilians by placing limits on state behavior during armed conflict. This has untold consequences upon populations living under occupation or who come to live under occupation as the situation in Gaza has only begun to demonstrate.

Failure to rebuff Israel’s attempts, either from the US, Europe, and/or an international multilateral body will signal to states that while the law is noble, it can and should be marginalized when it obstructs political expediency. States, bound by international law, will surely not object to relief from such responsibilities, however, citizens, aliens, refugees, stateless persons, and civilians in general will bear the violent brunt of this shift.

 _______________________________________________________________

[1] See Yotam Feldman & Uri Blau, Consent and Advise, Haaretz, Feb. 5 2009, athttp://www.haaretz.com/hasen/spages/1059925.html as quoted in George E. Bisharat, Timothy Crawley, Sara Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, and Anna Sanders, Israel’s Invasion of Gaza in International Law, 38 Denv. J. Int'l L. & Pol'y 41, 55 (2009).

[2] See Nicholas Rostow, Conference Honoring The Scholarship and Work of Alan M. Dershowitz: Article: Wall of Reason: Alan Dershowitz v. The International Court of Justice 71 Alb. L. Rev. 953 (2008) (Rostow argues that the ICJ's decision on self-defense is incorrect and that the Court should have considered the customary law of self-defense.)

[3] See  Eugene V. Rostow, The Gulf Crisis in International and International and Foreign Relations Law, Continued: Until What? Enforcement Action or Collective Self-Defense? 85 A.J.I.L. 506, (1991) (Rostow explores how the category of an "inherent right to self-defense" may eviscerate Article 51.)

[4] See Major Joshua E. Kastenburg, The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principle of Anticipatory Self-Defense & Preemption, 55 A.F.L. Rev. 87 (2004) (Discusses the unresolved definition of self-defense in favor or one that includes anticipatory self-defense. In all cases, he argues that the bottom line should be the principles of distinction and proportionality.)

[5] See Oscar Schachter, Self-Defense and the Rule of Law, 83 A.J.I.L 259 (1989) (Schachter argues that the protective measures of states are regulated by national defense policies and the 'politics of security' rather than by the international law governing use of force and self defense.)

*This is based on a paper entitled, "Is it Wrong or Illegal? Israel's Blockade of Gaza in International Law" to be published by the Issam Fares Institute, American University of Beirut.  

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