(Decided to repost this, because I originally posted it over a holiday weekend.)
This seems to be an opportune time to link to this comprehensive, scholarly analysis of international law and the conflict between Israel and Hamas, written before the current fighting, but still quite relevant. The authors are attorney Justin Reid Weiner and Professor Avraham Bell. (UPDATE: While I’m not an expert in the area, one thing that struck me in the paper’s was the author’s emphasis on Israel’s duties to combat Hamas under international conventions related to the suppression of terrorism and against genocide, to which Israel is a signator, and regarding which those who like to cite “international law” in criticizing Israel somehow always ignore.)
(I’m not opening comments, because it’s likely that only a tiny fraction of them would actually address Reid and Bell’s paper. Feel free to email me directly if you know of any substantive critiques of this paper, or have one of your own.)
UPDATE: As a counterpoint, a reader sends a link to this report by an Israeli pro-Palestinian advocacy group, Gisha, which apparently received a fair amount of attention when it was published in 2007 (“Disenagaged Occupiers: The Legal Status of Gaza”). The report was apparently prepared to support an ultimately unsuccessful legal campaign by Gisha to have the Israeli Supreme Court dictate Gaza policy to the Israeli government. I don’t have time (or really, the expertise) for a full critique, but just glancing at the report for ten minutes, I noticed the following:
(1) It makes conclusory statements, such as that Israel still occupies Gaza in part because it still occupies the West Bank, “which together with Gaza, constitute a single territorial unit.” When Israel captured these territories in 1967, Gaza was held by Egypt, the West Bank by Jordan. The West Bank and Gaza have never part of the same sovereign country. They share no border. They are governed currently by two separate political movements, only one of which is in a state of war with Israel at this time. Gisha does not explain, or even footnote its contention, that Israel (or anyone else) is obligated, under international law, to treat the West Bank and Gaza as “a single territorial unit.”
(2) It confuses Gisha’s aspirations for international law with “law.” For example, because, as Weiner and Bell note, the law of occupation requires that a power actually occupy and govern a territory before it can be considered an “occupier,” the report says, “the humanitarian law of occupation should be interpreted in light of changes in technology and in the use of force”. Well, maybe it should and maybe it shouldn’t, and maybe this would affect the obligations Israel has to Gaza and maybe it wouldn’t, but citing what Gisha and (and, in the footnotes, a couple of law professors) think international law should say doesn’t make it “law” under any stretch of the definition.
(3) Egypt’s role in Gaza is obfuscated. Despite what Gisha says, Israel does not control Egypt’s border with Gaza. Egypt could choose to open its border with Gaza at any time, as Egyptian officials have acknowledged. Egypt chooses not to. That is Israel’s responsibility only to those who have an agenda in which it must be.
I should note that I remain skeptical about the utility of “international law” in this and other contexts, but Weiner and Bell’s paper strikes me as a good antidote to those like Gisha who selectively cite (or, in the case of Amnesty International, simply make up) international law as a political weapon.
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