Manipulating International Law as Part of Anti-Israel “Lawfare”
Prof. Robbie Sabel
The attempts to brand Israel as a state that violates rules of international law have become a recurrent feature of the “lawfare” being waged against Israel. Although no state has a perfect record in this regard, Israel’s record of compliance with international law is remarkably strong. Israeli courts enforce customary international law as part of the “law of the land,” and in a long series of decisions, the Israeli High Court has ordered the Israeli government, army, and security services to change policies that, in the court’s view, were in violation of customary international law. Perhaps uniquely among national court systems, the court has even intervened in actual combat situations. The Israeli government has a near-impeccable record of complying with such court orders.
In a personal vein, this author can attest to a not-very-friendly senior Egyptian negotiator telling him in a private conversation that although negotiating with Israel was “hell,” he was aware that once agreement was reached, Israel had a very good record of complying with its undertakings.
Perhaps because Israel’s detractors are aware of this reality, they have undertaken a process of manipulating international law in a way that invents rules that are applied only to Israel and not to other states or in other situations. Blatant examples of such manipulation include:
UN General Assembly Resolutions
According to the UN Charter, UN General Assembly resolutions have the status of recommendations to states and are not binding.` They do not create international law and no state can be “guilty” of violating such a resolution. Such resolutions are political statements dictated by whatever group of states can muster a majority vote on a given issue at a given time. A prime example is UN General Assembly Resolution 194 (II) of 1948, which proposed measures to resolve the Arab-Israeli dispute including the issue of refugees.2 All the Arab states that were UN members at the time voted against the resolution, as they objected to any recognition of Israel.3 The General Assembly has subsequently readopted the part of the resolution concerning the refugees.4
The Palestinian legal position is that this article has thus miraculously been turned into a binding rule of international law. The legal reality is, however, that even where the General Assembly reiterates such a resolution, it nevertheless remains nonbinding. In the words of a leading French jurist, “Neither is there any warrant for considering that by dint of repetition, non-normative resolutions can be transmuted into positive law through a sort of incantatory effect.”5 No state is on record stating that it accepts General Assembly resolutions, as such, as binding on itself. Nevertheless, the claim is frequently heard that Israel is “violating” General Assembly resolutions. Apparently there is an interpretation of the UN Charter that is applicable only to Israel.
UN Security Council Resolutions
Those anti-Israeli lawfare tacticians who are aware that UN General Assembly resolutions are not binding try to charge Israel with violating UN Security Council resolutions. Here again the critics ignore the explicit rules set out in the UN Charter. Security Council resolutions are only binding where the council, acting in accordance with Chapter VII of the charter, declares that there has been an act of aggression by a state or that a state’s action is a threat to world peace or security.6
The Security Council has never made such a declaration regarding Israel, nor for that matter has it ever made such a declaration regarding Arab aggression against Israel. Like the General Assembly, the Security Council is a political body and its resolutions are political statements and not legal judgments. Members of the UN have undertaken to implement Security Council resolutions only when they are decisions adopted under Chapter VII. Nevertheless, this stipulation of the charter has not prevented Israel from being charged with “violating” nonbinding Security Council resolutions.
“Illegal” Military Occupation
There is a legitimate debate as to whether the West Bank is indeed the territory of an enemy sovereign state and hence subject to the rules of military occupation. Beyond this debate, though, the bon mot used by nearly all anti-Israeli publicists is that Israeli military occupation is illegal as such.7 However, in an armed conflict, international law clearly permits military occupation. It is interesting to note that the UN Security Council has never declared Israeli occupation to be illegal. The Security Council’s reticence in condemning Israeli occupation as illegal is not necessarily derived from sympathy with Israel’s policies but presumably from the awareness that occupation is perfectly legal in case of armed conflict.8
The permanent members of the council no doubt recall the Allied occupation of Germany and Japan after World War II, clearly legal in accordance with the laws of armed conflict. More recently, US occupation of Iraq after the First Gulf War was universally considered a legal act and its legality even received explicit confirmation by the Security Council.9 Applying the laws of military occupation to the West Bank may not have earned Israel much public relations kudos, but it is legal and the alternative, namely, applying Israel law, could have been deemed to be annexation. The fact that Israel was acting legally has not, however, deterred its detractors from attempts to attach to Israeli activity the invented new international legal concept of “illegal occupation.”
The “Right of Return” of Arab Refugees
In accordance with international law, a state must allow its nationals into its territory and hence it is possible to speak of a “right of return” of nationals to the state of their nationality. International treaties, to which Israel is a party, refer to the right, with some restrictions, of persons to return to “their own country.”10 The major regional human rights treaties explicitly clarify the phrase “their own country” as applying only to nationals of the country.11 Some academicians believe such a right should also apply to permanent residents,12 but, apparently, no state has adopted such a position and governments interpret the rule as meaning that the right applies only to nationals.
The manipulation of the rule as proposed by the Arab states, however, is that there is “a well-established norm in international law and practice” – namely, the right of all Palestinian Arab refugees to “return” to Israel, even though they are neither nationals nor permanent residents of Israel.13
The interpretation of the phrase “Palestinian refugees” in this context has, moreover, been extended to include all direct descendants. The Arab claim is now that even though the person involved was born in another country as were his parents and grandparents, and they may be nationals of another state and permanent residents of another state, nevertheless international law grants them a right to “return” to Israel. It is estimated that under such a definition over five million persons could claim a “right of return” to Israel. No such interpretation of the term “refugee” or “right of return” has been held applicable in any situation other than the Israeli-Palestinian dispute. It should be added that Palestinian negotiators’ adherence to their demand that Israel recognize such a “right” has made it very difficult to reach a pragmatic solution to the problem.
There is a clear attempt to smear Israel with the abhorrent phenomenon of racism and apartheid by describing Israel’s security barrier as an “apartheid wall.”14 Any border fence serves to separate areas and one may hope for a world with no borders. However, for so long as Israel has to face terrorist acts, it is legitimate for it, as it is for other states, to erect a barrier to prevent terrorist attacks and illegal crossings.15 Those calling the fence the “apartheid wall” make frequent reference to the advisory opinion of the International Court of Justice on the issue.16 They fail to point out that, in this opinion, the International Court of Justice made no reference whatsoever to “apartheid” or analogy with “apartheid.” Furthermore, although the court criticized the route of the “wall” as being beyond the 1949 “Green” Armistice Line,17 the court was careful not to deny Israel’s right in principle to build such a security fence.
Apartheid has been defined as a “social and political policy of racial segregation and discrimination enforced by white minority governments in South Africa from 1948 to 1994.”18 A dictionary definition is “racial segregation; specifically: a former policy of segregation and political and economic discrimination against non-European groups in the Republic of South Africa.”19 Among the prominent features of the South African apartheid policies were: prohibition of marriages between white people and people of other races;20 prohibition of extramarital sexual relations between white and black people;21 prohibiting a black person from performing any skilled work in urban areas except in those sections designated for black occupation;22 prohibiting strike action by blacks;23 preventing Africans from receiving an education that would lead them to “aspire to positions they wouldn’t be allowed to hold in society.”24 Black students were banned from attending major white universities.25 In all public amenities, such as restaurants, swimming pools, and public transport, “Europeans Only” and “Non-Europeans Only” signs were put up to enforce this legislation.26 Even Israel’s most virulent detractors presumably must feel uncomfortable in claiming this is the situation in Israel.
Aware that accusations of actual apartheid in modern Israel lack any credence, the accusation is made that the very fact that Israel is a Jewish state proves that there is an “apartheid-like” situation.27 One website writes that “apartheid began and is rooted in the very establishment of the colonial Jewish State.”28 The crux of the accusation against Israel lies in the often-repeated charge that its racism “is symbolized most clearly in Israel’s Jewish flag, anthem and state holidays.”29 The accusers have not a word of criticism against the tens of liberal democratic states that have Christian crosses incorporated in their flags, nor against the numerous Muslim states with the half-crescent symbol of Islam as their state symbol. Again, there appears to be a special legal definition of apartheid where Israel is concerned.
Perhaps the most chilling indication of the real purpose behind the “Israel is apartheid” campaign is revealed in one of the most active websites promoting it. They write that among the goals of “prosecution for the crime of apartheid” is to “enable the true majority to return to power over their own lands, while protecting the rights of ethnic minorities.”30 In other words, the real goal behind the apartheid campaign is the denial of the legitimacy of the State of Israel and the determination that the only situation the Jewish population in Israel can hope for is that of a “protected” ethnic minority in an Arab Palestinian state.
The Legal Status of an Armistice Demarcation Line
An Israeli government may have to decide whether to adopt the 1949 Israel-Jordan Armistice Demarcation Line, known colloquially as the “Green Line,” as the negotiating basis for a border between Israel and a future Palestinian state.This issue, however, is often presented manipulatively as a legal axiom that the Green Line already has the status of a legally binding border.
The 1949 Israel-Jordan Armistice Agreement states that the Green Line is an Armistice Demarcation Line,31 and that it should not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties.”32 The Armistice Agreement then continues explicitly to determine that: “The Armistice Demarcation Lines…are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either party relating thereto.”33 Neither Israel nor Jordan ever designated the Green Line as their international border. Before 1967, Jordan and other Arab states refrained from recognizing the Green Line as a border because of their reluctance to accept the legitimacy of Israel even within the Green Line.
By signing a peace agreement, Israel and Jordan have now mutually acknowledged the termination of the Armistice Agreement.34 In accordance with international law, international boundaries survive the demise of the treaties that established them. This, however, is not true of ceasefire or armistice-demarcation lines. The temporary nature of a ceasefire or armistice line is such that their validity expires with the expiration of the ceasefire or armistice. Therefore, formally, there is no longer any legal validity to the Green Line.
UN Security Council Resolution 242, accepted by all the parties to the dispute as an agreed framework for peace negotiations, makes no reference to the Green Line. The Israel-Jordan Peace Treaty refers to the “boundary definition under the Mandate” in defining the Israeli-Jordanian border; again, no reference was made to the Green Line.35
The UN General Assembly Resolution requesting an International Court of Justice Advisory Opinion on “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” made no reference to the Green Line. The written statement of the League of Arab States addressed to the International Court in this case refers to “the Armistice line that now marks the boundary between Palestine and Israel.”The statement goes on, however, to observe: “The purpose of the armistice was not to establish or recognize any territorial, custodial or other rights, claims or interests of any party.”36 The Jordanian judge AlKhasawneh, in his separate opinion, wrote that “There is no implication that the Green Line is to be a permanent frontier.”37 Even the final court advisory opinion, which strongly criticizes Israel for the route of the “Wall,” explicitly states that its advisory opinion “involves no implication that the Green Line is to be a permanent frontier.”38
Nevertheless, the claim continues to be heard that as far as Israel is concerned, a temporary armistice line has the legal status of a permanent boundary.
Commissions of Inquiry
When the United States or the United Kingdom or other democratic states set up judicial committees of inquiry on issues involving their armed forces, world opinion tends to see it as a reflection of the democratic nature of the states concerned. This author has failed to find instances of international demand that such commissions must include foreign nationals.
Israel has a well-earned reputation for its independent and impartial judiciary. Nevertheless, when Israel sets up such a judicial commission of inquiry, it nearly automatically encounters demands that the commission must include non-Israeli participation. Thus, apparently, there is one international rule for Israeli commissions of inquiry and a different one for the rest of the world.
Since the 2005 Israeli unilateral withdrawal from Gaza, there has been no Israeli control of the Gaza area. The area is administered by Hamas. There is no Israeli military government in Gaza. The laws in Gaza, both criminal and civilian, are Hamas laws. Hamas controls the economy, the taxes, the courts, the police, and the prisons. It has its own, heavily armed, militias. The Hamas government palpably was not appointed by Israel and is not subservient to Israel. By any accepted legal standard, Gaza is not under Israeli occupation. Israel maintains a blockade in an attempt to prevent arms shipments from entering Gaza; this, however, does not constitute “occupation.” Furthermore, Gaza has a land border with Egypt, over which Israel has no control whatsoever.
International law requires that, for an area to be considered as under occupation, the territory must be “actually placed under the authority of the hostile army.”39 The International Court of Justice gave its opinion that “territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.”40 In a later case, the court reconfirmed its position, stating that “Occupation required the exercise of actual authority by the foreign forces” (emphasis added).41 Even the International Committee of the Red Cross (ICRC) report on the subject reached the conclusion that “occupation could not be established or maintained solely through the exercise of power from beyond the boundaries of the occupied territory; a certain number of foreign ‘boots on the ground’ were required.”42 The ICRC report refers to “the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.”43
For political reasons the PLO wants to retain Gaza’s status as “occupied” territory.44 What is more surprising, however, is that the International Committee of the Red Cross continues to maintain that Gaza is under Israeli occupation.45 Again, there appears to be a unique definition of “occupation” applicable only to Israel.
Laws of Armed Conflict
The laws of armed conflict are among the better-established rules of international law and many of the treaties on the issue are regarded as reflecting customary international law. Democratic states, including Israel, incorporate these rules into the standing instructions and military manuals of their armed forces. However, regarding Israel there has been a recent attempt to invent two new rules:
− Proportionality in combat
The law of armed conflict recognizes the requirement of proportionality in two contexts. First, it is prohibited to attack a military target if it will cause civilian casualties that are excessive in relation to the military advantage to be obtained.46 Second, measures of self-defense must be proportionate to the threat.47 However, regarding Israel a new rule seems to have been developed: that in actual combat Israel must not use weapons that are not proportionate to the weapons used by terrorist groups. Regarding other states, there is no such rule; on the contrary, all armies try to concentrate superior forces and arms against enemy positions and forces. This universal military practice, however, does not prevent Israel from being accused of using “disproportionate” force in actual combat situations.
− Civilian casualties
Civilian casualties are, unhappily, a common feature of armed conflicts. This is particularly true where an enemy places its weapons among civilians, as do Hamas in Gaza and Hizbullah in Lebanon. It is a violation of the laws of armed conflict to deliberately target civilians, and a state may be liable for reckless or negligent targeting. However, as far as Israel is concerned, any enemy civilian casualties are presented as the result of a “war crime,” even though it is acknowledged that Israel takes immense steps to try to prevent and minimize civilian casualties.48
Self-Defense Only against Attacks from States
Perhaps the most flagrant attempt to manipulate international law against Israel was the International Court’s majority decision that Israel had no right of self-defense against terrorists operating from the territories under control of the Palestinian Authority. The court decided that it would not even examine whether Israel’s security barrier was a legitimate act of self-defense against acts of terrorism.The court based its decision on its interpretation of Article 51 of the UN Charter, which recognizes the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” The court interpreted Article 51 as requiring that an attack must emanate from a foreign state, although there is no mention in the UN Charter of such a requirement.
The court consequently brusquely determined that “Article 51 of the Charter has no relevance in this case.”49 Its conclusion was that Israel had no right of self-defense whatsoever against terrorist acts emanating from territories under the control of the Palestinian Authority. The British, Dutch, and US judges on the court were the only ones who refused to concur with this startling ruling.50 This strange dictum of the court has not been followed by other states, and one academic writer notes that “State practice strongly suggests that the international community has recognized a right to use force in self-defense targeting nonstate actors in foreign territory to the extent that the foreign state cannot be relied on to prevent or suppress terrorist activities.”51
Israel has a strong record of complying with international law and its judicial system ensures that it will continue to do so. The essence of any legal system, however, is that law applies equally to all. This principle is being undermined by the attempts of Israel’s foes and detractors to manipulate international law as part of their lawfare against Israel. Devising tailor-made rules of international law for application only where Israel is concerned undermines international law and can have an insidious and corrosive effect on the rule of law in general.
Robbie Sabel is professor of international law at the Hebrew University of Jerusalem and former legal adviser to the Israel Ministry of Foreign Affairs. Among his publications: Procedure in International Law (2nd ed., Cambridge University Press, 2006) (awarded the Certificate of Merit of the American Society of International Law); International Law (the Sacher Institute of the Law Faculty of the Hebrew University of Jerusalem, 2nd ed., 2010).
1 “Except for certain internal matters, such as the budget, the Assembly cannot bind its members. It is not a legislature in that sense, and its resolutions are purely recommendatory.”“The Assembly is essentially a debating chamber.” Malcolm Shaw, International Law, sixth edition (2008), p. 1212.
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