israel and palestine - europa-uni

24.11.15

1

Dr. Robert Frau 2015

Israel and Palestine Current Issues of Public International Law

Overview •  Statehood •  Westbank •  Gaza •  Jerusalem and Golan-heights •  Iran

© Dr. Robert Frau, 2015, S. 2


Israel •  Territory •  People •  Power •  Legality does not

matter (and is not in question!)



24.11.15

2

Palestine •  Territory •  People •  Power



Palestine •  Territory •  People •  Power



24.11.15

3



Art. 12 ICC-Statute (2) In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.



Art. 12 ICC-Statute (3) If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.



24.11.15

4



Israel •  State •  Subject of

international law

Palestine •  Not a state (really?) •  As thus not a subject

of international law •  People as subject,

PLO as representative



States

Other subjects

of Int Law



24.11.15

5

Legal Framework •  Law of Peace •  Int Humanitarian Law

– Hague Regulations, 1907 – Geneva Conventions, 1949 – Additional Protocols I & II GC, 1977

•  Human Rights –  „jurisdiction“ = effective control



Westbank



Westbank •  A-, B- and C-zones, •  Israel retains rights of last resort •  Law of occupation brings rights and

obligations



24.11.15

6

24.11.15

7

UN GA Res. ES-10/14 (8 December 2003) What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?



Art. 2 Geneva Convention IV (1949) (1) In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. (2) The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.



Art. 2 (1) ICCPR (1966) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.



24.11.15

8

Art. 2 (1) ICCPR (1966) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.



Art. 1 (1) ICCPR (1966) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.



Art. 49 Geneva Convention IV (6)The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.



24.11.15

9

Art. 49 Geneva Convention IV (2) Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.



Settlements against international law

•  Israel supports •  official policy •  demographic changes

Settlements in accordance w/int law •  Art. 49 (6) GC IV not

applicable •  No customary law •  temporary



Art. 12 ICCPR (1966) (1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.



24.11.15

10

Art. 4 ICCPR (1966) (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. (3) Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.



Art. 2 A/RES/181 (II) (1947) [...] the liberty of access, visit and transit shall be guaranteed, in conformity with existing rights, to all residents and citizens [of Arab and Jewish state] and of the City of Jerusalem, as well as to aliens, witjout distinction as to nationality, subjecgt to requirements of national security, public order and decorum.



Art. 51 UN Charter Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. [...]



24.11.15

11

Contra •  de-facto-Annexion •  Risk of demographic changes... •  ...right to self-determination. •  Property, use of land etc.



Pro •  temporary •  Law of occupation and security •  Humanitarian considerations and military

necessity •  Decrease in suicide attacks



ICJ: Consequences •  cease violations of int. law •  Israel responsible under international law •  other states must not recognise de-facto-

annexation or “assist” Israel •  erga omnes obligations



24.11.15

12

Gaza



Art. 42 Hague Regulations 1907 Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.



Gaza not occupied •  2005 official

termination •  Hamas •  Gaza has never been

a state party‘s territory

Gaza occupied •  „One Palestine“ •  facts •  Israel retains rights •  Israel de facto highest

authority in Gaza



24.11.15

13

Careful! Seperate!

ius ad bellum ius in bello Use of force, Self-defense

IHL

= the entire conflict = each and every operation = occupation



Law-Problems in Gaza •  Rockets from Gaza to Israle

– Right to self-determination... –  ... Never with force! – Usually in violation of int. law

•  Israel‘s responses – Right to self-defense – Most single operations covered by international law



Legal Framework in Gaza •  IHL:

– Principle of distinction! – Civilians are protected! – Collateral damage! Always and for everyone!!!! NO exceptions



24.11.15

14

Legal Framework in Gaza •  IHL:

– Principle of distinction! – Civilians are protected! – Collateral damage! Always and for everyone!!!! NO exceptions



Use of force and self-defense

Peace

Use of Force Armed attack Act of

Aggression

armed conflict / IHL?

Art. 51 UNCh

Art. 39 UNCh

armed reprisal

Art. 2 Nr. 4

UNCh



1967-2005 2008/2009 Cast Lead 2005-2008 2009-2012

2012 Pillar of Defence 2012...

Law of Occupation Law of armed conflict / IHL

Principle of Distinction

Protection of Civilians

International Humanitarian Law



24.11.15

15

East-Jerusalem and Golan-heights



East-Jerusalem and Golan-heights •  Jerusalem

–  „law, jurisdiction and administration“ –  „Jerusalem, complete and united, is the Capital of

Israel“ •  Golan-heights

–  „law, jurisdiction and administration“ (debatable) ⇒ annexions in violation of international law



24.11.15

16

Art. 2 Nr. 4 UN Charter Al l Members shal l refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.



Art. 51 UN Charter Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. [...]



Use of force and self-defense

Use of Force

armed conflict

Art. 2 Nr. 4

UNCh

Peace

t 1 t 2

t 3

Art. 51 UNCh



24.11.15

17

Temporal dimension of self-defense •  t 1

– preventive / preemptive self-defense – unlawful

•  t 2 – preventive / preemptive self-defense –  lawful

•  t 3 “regular“, reactive self-defense















24.11.15

18







Summary •  Different results possible

– Westbank – Gaza – Judicial review



Summary •  Palestine and international law?

– Gaza and policy – Fatah/PLO/ State of Palestine



24.11.15

19

Questions? [email protected]



israel and palestine - europa-uni

Documents