De­bunk­ing Is­rael’s self-de­fence ar­gu­ment

To­mor­row is the United Na­tions In­ter­na­tional Day of Sol­i­dar­ity with the Pales­tinian Peo­ple. Mark­ing the event, John Du­gard writes on the oc­cu­pier

The Star Early Edition - - INSIDE - John Du­gard is emer­i­tus pro­fes­sor of in­ter­na­tional law at the Univer­sity of Lei­den in the Nether­lands and for­mer UN spe­cial rap­por­teur on hu­man rights in the oc­cu­pied Pales­tinian ter­ri­tory. This piece was first pub­lished by Al Jazeera Amer­ica, and is pub

IS­RAEL claimed that it was act­ing in self-de­fence in Gaza, thereby por­tray­ing it­self as the vic­tim in the con­flict in July. Pres­i­dent Barack Obama and both houses of the US Congress en­dorsed this jus­ti­fi­ca­tion for the use of force. But is it an ac­cu­rate as­sess­ment? Gaza is not an in­de­pen­dent state like Le­banon or Jor­dan. Is­rael ac­cepts this but sees Gaza as a “hos­tile en­tity” – a con­cept un­known to in­ter­na­tional law and one that Is­rael has not sought to ex­plain.

But the sta­tus of Gaza is clear. It is an oc­cu­pied ter­ri­tory – part of the oc­cu­pied Pales­tinian ter­ri­tory. In 2005, Is­rael with­drew its set­tlers and the Is­rael De­fence Force from Gaza, but con­tin­ues to re­tain con­trol of it, not only through in­ter­mit­tent in­cur­sions into and reg­u­lar shelling of the ter­ri­tory, but also by ef­fec­tively con­trol­ling the land cross­ings into Gaza, its airspace and ter­ri­to­rial wa­ters and its pop­u­la­tion reg­istry, which de­ter­mines who may leave and en­ter.

Ef­fec­tive con­trol is the test for oc­cu­pa­tion. The In­ter­na­tional Court of Jus­tice re­cently con­firmed this in a dis­pute be­tween the Demo­cratic Repub­lic of the Congo and Uganda. The phys­i­cal pres­ence of Is­rael in Gaza is not nec­es­sary pro­vided it re­tains ef­fec­tive con­trol and au­thor­ity over the ter­ri­tory by other means. Mod­ern tech­nol­ogy now per­mits ef­fec­tive con­trol from out­side the oc­cu­pied ter­ri­tory, and this is what Is­rael has es­tab­lished.

That Gaza re­mains oc­cu­pied is ac­cepted by the UN and all states ex­cept, pos­si­bly, Is­rael.

Mil­i­tary or bel­liger­ent oc­cu­pa­tion is a sta­tus recog­nised by in­ter­na­tional law. Ac­cord­ing to the terms of the Fourth Geneva Con­ven­tion of 1949 – to which Is­rael is a party – a state is al­lowed to oc­cupy a ter­ri­tory ac­quired in armed con­flict pend­ing a peace set­tle­ment. But the oc­cu­pa­tion must be tem­po­rary, and the oc­cu­py­ing power is obliged to bal­ance its se­cu­rity needs with the wel­fare of the oc­cu­pied peo­ple. Col­lec­tive pun­ish­ment is strictly pro­hib­ited.

The oc­cu­pa­tion of Gaza is now in its 47th year, and Is­rael is largely re­spon­si­ble for the fail­ure to reach an agree­ment on a peace­ful set­tle­ment. More­over, Is­rael is in breach of many of the hu­man­i­tar­ian pro­vi­sions con­tained in the Fourth Geneva Con­ven­tion, as a re­sult of the siege it has im­posed on Gaza since 2007. In short, Gaza is not only an oc­cu­pied ter­ri­tory; it is also an il­le­gally oc­cu­pied ter­ri­tory.

The present op­er­a­tion in the ter­ri­tory – Op­er­a­tion Pro­tec­tive Edge – must there­fore not be seen as an act of self-de­fence by a state sub­jected to acts of ag­gres­sion by a for­eign state or non­state ac­tor. In­stead, it should be seen as the ac­tion of an oc­cu­py­ing power aimed at main­tain­ing its oc­cu­pa­tion — the il­le­gal oc­cu­pa­tion of Gaza. Is­rael is not the vic­tim. It is the oc­cu­py­ing power that is us­ing force to main­tain its il­le­gal oc­cu­pa­tion.

His­tory is re­plete with ex­am­ples of oc­cu­py­ing pow­ers us­ing force to main­tain their oc­cu­pa­tions.

Apartheid South Africa used force against the peo­ple of Namibia; Ger­many used force against the peo­ple of France and the Nether­lands dur­ing World War II.

The rock­ets fired by Pales­tinian fac­tions from Gaza must thus be con­strued as acts of re­sis­tance by an oc­cu­pied peo­ple and an as­ser­tion of their recog­nised right to self-de­ter­mi­na­tion.

Be­fore Is­rael’s phys­i­cal with­drawal from Gaza in 2005, Pales­tinian acts of vi­o­lent re­sis­tance were di­rected at Is­raeli forces within the ter­ri­tory. This was dur­ing the sec­ond in­tifada.

Since then, Pales­tinian mil­i­tants have been obliged to take their re­sis­tance to the oc­cu­pa­tion and the il­le­gal siege of Gaza to Is­rael it­self. The al­ter­na­tive is to do noth­ing, a course no oc­cu­pied peo­ple in his­tory has ever taken.

It is un­usual for an oc­cu­pied peo­ple to take their re­sis­tance out­side the oc­cu­pied ter­ri­tory; but it is also un­usual for an oc­cu­py­ing power to main­tain a bru­tal oc­cu­pa­tion from out­side the ter­ri­tory. When the oc­cu­py­ing power main­tains its sta­tus through mil­i­tary force within the oc­cu­pied ter­ri­tory be­cause of th­ese acts of re­sis­tance on its own ter­ri­tory, as Is­rael has done, it acts as the en­forcer of an oc­cu­pa­tion not as a state act­ing in self-de­fence.

A state seek­ing to en­force its oc­cu­pa­tion, like a state act­ing in self-de­fence, must com­ply with in­ter­na­tional hu­man­i­tar­ian law. This in­cludes re­spect for the prin­ci­ple of pro­por­tion­al­ity, re­spect for civil­ians, the draw­ing of a dis­tinc­tion be­tween mil­i­tary and civil­ian tar­gets, and the pro­hi­bi­tion of col­lec­tive pun­ish­ment.

Both Is­rael and Pales­tinian mil­i­tants are obliged to act within the con­fines of th­ese rules.

Sadly, Is­rael is in vi­o­la­tion of all three of th­ese ba­sic tenets. Its ac­tion is a clear col­lec­tive pun­ish­ment of the peo­ple of Gaza. The num­bers of the dead and wounded and the prop­erty dam­age in­flicted on Gaza are com­pletely dis­pro­por­tion­ate to the few civil­ians killed and wounded and prop­erty dam­aged in Is­rael. It is also clear from its bombing of schools, hos­pi­tals and pri­vate homes that Is­rael makes lit­tle, if any, at­tempt to dis­tin­guish be­tween civil­ian and mil­i­tary tar­gets.

What is to be done? The UN is pow­er­less to act in the face of the US veto. This places a heavy bur­den on the Euro­pean states to use their in­flu­ence to stop the blood­shed.

It is also in­cum­bent on the In­ter­na­tional Crim­i­nal Court to act. Pales­tine, recog­nised as a state by the UN Gen­eral Assem­bly in 2012, has ac­cepted the ju­ris­dic­tion of the In­ter­na­tional Crim­i­nal Court.

Un­der pres­sure from the US and Europe, the pros­e­cu­tor of the court re­fuses to hold Is­rael ac­count­able for its crimes. His­tory will surely judge un­kindly both the pros­e­cu­tor and the in­sti­tu­tion that she serves if noth­ing is done.

PIC­TURE: IBRA­HEEM ABU MUSTAFA / REUTERS

NO SAFE HAVEN: A Pales­tinian car­ry­ing his brother watches as smoke rises after a house is blown up ear­lier this month.

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