Israel,Occupation and International Law: Part II – A Response

In my previous article, I laid out Israel’s claim to the territory known as Judea/Samaria (or West Bank to the anti-Israel crowd), I then proceeded to explain the position of the International Committee of the Red Cross, and showed how their logic to the status of the territory is circular and severely faulty even according to their own interpretation of International Law. I then concluded with a fact that remains, regardless of who may be right, that stated the territory can no longer be considered occupied because the signing of the Oslo Accords gave the population of the territory self rule and control over their day to day civil and security affairs. I also included a criticism of the International Committee of the Red Cross which stated the organization, though required to be impartial to the conflicts in which it operates, has allowed itself to become biased and as a result inconsistent with its application of international law even according to its own interpretations of when a location is occupied.

The head of the Red Cross’s delegation to Israel, responded to my article. In his response, he argued that a place is considered occupied simply from the moment that one party forcibly takes control of the location regardless of any legal history involved. This very logic is what my previous article presented on behalf of the Red Cross, and then my article proceeded to refute this approach using the Red Cross’s own writings on the issue. The delegate offered no retort to my refutation of that argument.

However, he posited that my conclusion that the territory is no longer occupied due to the Oslo Accords is not true. According to him my perception of the Oslo Accords, as analogous to the U.S. Interim Agreement with Iraq, is a false analogy. According to the official, the Oslo Accords are nothing more than a rubber stamp for Israeli control and therefore not analogous to the U.S. Interim Agreement.

However, even if we all agree for the sake of argument that the Oslo Accords are nothing more than a rubber stamp for Israel, it appears this would support my analogy. After all, there is very little reason to seriously say that the U.S. Interim Agreement with Iraq was anything other than a rubber stamp for U.S. control and ultimate supervision over Iraq. Yet, that did not stop the Red Cross from considering the occupation of Iraq as ceased. Again, the inconsistency is glaring.

There was not much to the delegate’s response, in the way of argument, other than appeals to various institutions like the Israeli Supreme Court, the World Court, the United Nations General Assembly, and United Nations Security Council. In essence, the delegate resorted to Aristotle’s example of the logical fallacy of an “appeal to authority”. After all, if an important physics professor says time travel is possible, it must be absolutely true, right!?

As it turns out, the very same appeals to authority that were made in response to my article are the ones I intended to discuss in this installment. The institutions mentioned above are the remaining pillars of the anti-Israel crowd’s argument that Israel is an occupier. So lets analyze the arguments and begin with the Israeli Supreme Court.

The anti-Israel crowd claims that Israel’s Highest Court has ruled the territory’s status is legally occupied first in a 2004 case called Beit Sourik Village Council v. The Government of Israel. However, the reality is that the Israeli Supreme Court has never had to deliberate what the status of the territory actually is because the Israeli government has taken the political position ever since 1967 that, although the government considers the status of the territory as unclear and thus “disputed”, it will provide the humanitarian protections found in international law relating to occupation as a kindness and as closely as possible to the Fourth Geneva Convention with exceptions only for issues of security.

Thus, the Israeli Supreme Court has never had to discuss the question of whether occupation is the proper legal definition for the territory and thus whether Israel is in fact obligated to provide those protections. This is a significant subtlety the anti-Israel crowd chooses not to see.

The Israeli Supreme Court has never actually decided whether the territory in question is occupied. The Israeli Supreme Court has merely been restating the position of the Israeli Government itself as a premise before any legal analysis rather than concluding the status of the territory.

As for references to the territory in question as “occupied”, the key is whether the Court writes this in the “holding” part of the legal opinion, or elsewhere known as “dictum”. The “holding” of a case states the “rule of the case”, meaning, it has been decided (“held”) to favor one side or the other because of the rule. A “dictum” refers to just about anything else mentioned in the opinion of the court that made the ruling, but does not establish a rule itself. The quotes used by the anti-Israel crowd are dictum.

The first quote you can point to in that case is found not in the holding of the case but in what the opinion itself terms the “background” information where obviously everything is dictum as it is merely a necessary background before the legal analysis even begins.

The second, and last possible quote, one can point to is a statement that makes my point all the clearer:   “the general point of departure of all parties – which is also our point of departure – is that Israel holds the area in belligerent occupation”.   Notice, its their premise before any legal analysis of any question in the case, not their conclusion from any legal analysis. Again, they can begin their premise there because the government already applies the protections of the Fourth Geneva Convention to the territory as an official policy. Thus, the quotes are in keeping with a political government position, and not the conclusion of any legal analysis of the question itself.

To repeat the main point, there is not a single case where the Israeli Supreme Court has examined the legal issue itself, considered pro and con arguments over it, and come to the legal conclusion that the West Bank is belligerently occupied territory. The Court simply follows the government’s policy of interacting with the territory as closely as possible through the humanitarian protections of the Fourth Geneva Convention and Hague Regulation 1907. Thus, not only has the Israeli Supreme Court never in its history ruled on the status of the territory in question, even the Red Cross has acknowledged the fact on their website.

“The de facto acceptance by the [Israeli] authorities that the applicable law in the OT [Occupied Territories] was the law of belligerent occupation freed the Court from having to decide what the constituent elements of occupation are.”  http://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf

So, I am rather flabbergasted that a high ranking official from the Red Cross would use the Israeli Supreme Court as an institution advocating his position. Perhaps this is yet another sign of the bias which clouds the organization’s very important work.

Another pillar used by the anti-Israel crowd to point the finger of occupation at Israel is an advisory opinion by the World Court concerning Israel’s construction of a barrier in the territory. This too was thrown at me, in the comments to Part I, by the head of the Red Cross delegation to Israel.

First of all, advisory opinions from the World Court do not make international law. They are not even binding conflict adjudication. They are merely a marker of how the Court was thinking at the time, made at the request of the General Assembly. It is reasonable and common for the Court to rule differently in actual adjudication from how it saw things in an advisory opinion.

In this advisory opinion the Court indeed saw Israel as an occupier. However, the entire legal proceedings through which the Court received relevant documents about the question of occupation were entirely without any representation from Israel.

Israel did not participate because it was following the custom of most Sovereign States in the world. This custom is seen in most Sovereign States in the world, as most states have not signed on to accept the jurisdiction of the World Court, because they are concerned it may be a reduction in the jurisdiction of their own governments. This customary concern among most, if not all Sovereign States, is why only about a third of the world’s sovereign states have signed on, while the signed clause itself remains optional and those same signatories may at any time “opt out” just as the United States “opted out” after having already signed.

In other words, the only side present at that time was the side that doesn’t have any sovereignty to worry about, the Palestinian side (and their friends) who had free reign to submit any documents and to make any claims, unchecked by any opposition. One can’t say that Israel had its day in court here.

As many of the World Court’s judges noticed, the Israeli side of the picture went unrepresented and untold:

“Indeed, there is ample material, in particular, about the humanitarian and socio-economic impacts of the construction of the wall. Their authenticity and reliability are not in doubt. What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate.” -Separate Opinion of Judge Owada http://www.icjcij.org/docket/files/131/1691.pdf

Imagine a court of law needed to assess your situation, yet you were not present in court to hand relevant documents during the process of assessment. Moreover, your opposition was present to do exactly that. Could you expect a fair and just assessment from the judge if you were not there to make sure the information regarding yourself was accurate, and to defend your positions and correct the falsehoods and exaggerations from the other side? Without being present, you would certainly call any conclusion in that scenario a farce of the law.

This advisory opinion is a farce of the law. Sadly, a farce of the law is enough for the anti-Israel crowd. But most tragically, if not surprisingly, it is apparently enough for the International Committee of the Red Cross. After all, its delegate to Israel cited this very advisory opinion as proof of the Red Cross’s accurate assessment of the territory in question.

Aside from the Beit Surik case, and the World Court advisory opinion, the head of the Red Cross delegation to Israel also pointed to resolutions of the General Assembly, and Security Council as an appeal to authority for how the Red Cross defines the territory as occupied. It is rather unfortunate the official does not see the difference in nature between his organisation as an impartial and apolitical animal tasked with interpreting humanitarian law and the United Nations’ bodies he cited, which are purely political animals, that operate along purely political sensibilities rather than legal rigidities.

Of course you’ll be able to find a General Assembly resolution condemning Israel for practically anything, its merely a matter of votes. In a numbers game, Israel will rarely if ever win. Its rival, the Arab League, consists of over 20 countries. Meanwhile, the Muslim countries which are natural allies of the Arab League in all matters Israel related, amount to over 50 votes. Each of these countries need ask only one friendly country, each, and they instantly command a majority vote in the General Assembly. And this is even before we factor in their tremendous political sway through oil. This is also how some of the worst human rights violators in the world sit on the human rights council at the United Nations.

That a supposedly impartial and high ranking official would seriously point to the General Assembly on any extremely controversial matter relating to Israel, betrays any semblance of impartiality in this conflict.

The anti-Israel crowd, and the official from the Red Cross, point to the Security Council as having used the term “Arab Territory” in the past as a defense for the Red Cross to use the phrase “Occupied Palestinian Territory”. As in resolution 446, and those that follow it, which states the Security Council sees Israel’s presence in the territory as an occupation, condemns settlement building, and establishes a committee to monitor the situation.

True, the Security Council commands more integrity than the General Assembly, but it is still a purely political animal which operates according to political interests rather than any rigid legal views. Like all things political, nothing here is black and white. This is because Security Council Resolutions have their own rules and subtleties that are conveniently ignored by the anti-Israel crowd when they cite the Security Council.

Its important to understand that Security Council resolutions are either filed under Chapter VI of the U.N. Charter, which is a legally non-binding classification under international law, or under chapter VII of the UN charter which is a legally binding classification.

“Under Chapter VI the Security Council can only make non-binding recommendations. However, if the Security Council determines that the continuance of the dispute constitutes a threat to the peace, or that the situation involves a breach of the peace or act of aggression it can take action under Chapter VII of the Charter. Chapter VII gives the Security Council the power to make decisions which are binding on member states, once it has determined the existence of a threat to the peace, breach of the peace, or act of aggression.” – Hillier, Timothy, Taylor & Francis Group. Sourcebook on Public International Law, Cavendish Publishing, 1998, P. 568.

Even binding resolutions, like those filed under chapter VII of the UN Charter, are only binding in their command statements rather than any statements made in their background. Moreover, it depends what kind of operative language the Security Council used in its command statements, meaning statements that use operative words like “shall” as opposed to “should”, “recommend” as opposed to “demand”, etc. As the World Court explained:

“It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council” – Legal Consequences For States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1971), International Court of Justice.

Thus Resolution 446, and those resolutions that follow up on it, do not make international law because they fall under either non-binding Chapter VI resolutions (made for the Security Council to show its opinion at the time without obligating a party) or the clauses concerning “occupation” are in the non-binding background of Chapter Seven resolutions. In some cases, the Security Council left their intention dubious enough so that it is not even clear where some of these relevant resolutions should be filed.

Thus the Security Council, being a political body, can say what ever they like in relation to Israel since they have responsibly made sure the statements made wouldn’t change the legal situation under international law as the resolutions usually fall under Chapter VI or non-command statements in Chapter VII. It would appear the Security Council wisely left legal issues to the legal realm. Being the political animal that it is, the Security Council made a mess but purposely didn’t make anything dirty. Sadly the Red Cross did not catch this subtlety.

The Red Cross, being an apolitical organization that is a defacto authority on humanitarian provisions of international law, shouldn’t make such political statements especially since such statements have no solid basis in law. It is simply irresponsible.

The Red Cross official ended with a thought I agree with, that international humanitarian law is misunderstood in the Israel/Palestinian conflict. But then went on to imply that there is really only one way to understand the law involved, the anti-Israel way. It would appear the Red Cross is ignoring or grossly unaware of the many respected jurists of international law who take the very positions I have presented in my previous article. Some of these jurists have spent an enormous part of their lives studying the questions involved here.

Like Jacques Gauthier, after studying the legal status of Jerusalem for 20 years became the foremost expert on the subject, concluded Jerusalem (including East Jerusalem) belongs squarely to Israel. Other distinguished individuals who would argue similarly as I have are:

Judge Schwebel (former President of the World Court):

“As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem.” – In “What Weight to Conquest? Aggression, Compliance, and Development”, pg. 521-526.

Professor Julius Stone (one of the 20th century’s leading authorities on International Law):

“…the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point. – ISRAEL AND PALESTINE, Assault on the Law of Nations, By Julius Stone, Discourse 2, Page 177.

Eugene Rostow (Former dean of Yale Law School and co-author of Security Council resolution 242):   “The Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.” – Eugene Rostow, New Republic, April 23, 1990