[The following report was authored by Noura Erakat [1], Bianca Isais [2], and Salmah Rizvi [3]. It was published by the Issam Fares Institute for Public Policy and International Affairs (IFI) at American University of Beirut on 9 October 2014.]
Operation Protective Edge and Legal Remedies
Introduction
On 26 August 2014, Israel and Palestinian resistance groups entered into a long-term ceasefire agreement. The terms of the agreement look almost identical to those established in November 2012, including a lack of implementation mechanisms. Indeed, if the parties fail to make these terms more precise and binding, it will be no more than a holding position before Israel’s next assault on the Gaza Strip.
Its most significant omission is a commitment to lift Israel’s eight-year debilitating siege. Instead, the agreement simply obligates Israel to “ease” the siege and “open” Gaza’s crossings. These are incredibly vague and subjective directives that do not guarantee the rehabilitation of Gaza or freedom for the Palestinians living there. What does opening Gaza’s crossings mean, for example? Who will oversee that they are in fact open? In 2005, the Israeli High Court mandated that the passageways along the Annexation Wall be opened regularly to allow humanitarian passage (i.e., family, education, health, livelihood) and yet Palestinians are still waiting for that to happen.
This is more troubling in light of the fact that the siege itself is illegal. The siege is a form of collective punishment against the Palestinian population of the Gaza Strip and is prohibited under Article 33 of the Geneva Convention. Moreover, it constitutes an illegal act of war against an occupied population, which Israel has the obligation to protect. As the occupying power, Israel has a duty and an obligation to protect the well-being of the civilians living under its occupation. Israel must lift the siege as a matter of law yet, after fifty-two days of pummeling the besieged Strip, its agreement to ease the siege is presented as a concession.
Similarly, Israel has framed its assaults on the Gaza Strip as force used in self-defense. As an occupying power, however, Israel does not have the right to self-defense under international law against territory it occupies. [4] Invoking this right would give Gaza the appearance of independence when in fact it lacks the powers to govern itself and remains within Israel’s jurisdictional control. By usurping Palestinians’ police powers and simultaneously declaring war upon the Gaza Strip, Israel makes the population doubly vulnerable. Significantly, it also confuses two bodies of law, the law regulating ongoing hostilities (jus in bello) and the law over starting a war (jus ad bellum), in an effort to evade accountability.
This trend is particularly disturbing in light of Israel’s violations of humanitarian law committed during the course of hostilities. During its most recent aerial and ground offensive against the Gaza Strip, Israeli forces killed 2,104 Palestinians, including 495 children; forcibly displaced 350,000 people and rendered 100,000 homeless; destroyed or severely damaged 16,800 homes; destroyed Gaza’s sole power plant; damaged 277 schools; damaged 17 hospitals; incapacitated 10 hospitals; destroyed 73 mosques and damaged another 197; and damaged two churches and a Christian cemetery, among a long list of similarly destroyed civilian infrastructure. Additionally, during the course of the fourth ceasefire humanitarian workers discovered thousands of explosive remnants of war (i.e. unexploded bombs and shells). Palestinian resistance groups have killed 64 Israeli soldiers and four civilians.
The extent of the death and destruction is substantial; it is also not unprecedented as evidenced by the register of harm endured by the Palestinian people of Gaza during Operation Cast Lead in 2008/09 and then again during Operation Pillar of Defense in November 2012. The fact that Israel can evade its responsibilities as an occupying power and commit egregious violations of humanitarian law, as a matter of routine, demonstrates the consequences of systematic impunity afforded to it over several decades.
Indeed, through a combination of legal acrobatics, outright political pressure, and boycott of legal bodies, Israel has created a legal black hole over its treatment of Palestinians and, more broadly, the question of Palestine.
While legal remedies are not a panacea for the Palestinian condition, they can be a useful tactic in a broader strategy aimed at achieving national liberation. Human rights advocates and civil society organizations have attempted to use domestic and international legal venues to hold Israel accountable for its humanitarian and human rights violations. However, political intervention has stymied these efforts and diminished the efficacy of legal advocacy.
This briefing paper provides a non-exhaustive survey of the legal fora in which Palestinians have sought, or can seek, legal redress. These include international courts, in particular the International Court of Justice (ICJ), the International Criminal Court (ICC), and special tribunals; national courts under universal jurisdiction as well as the Alien Tort Statute (ATS) in US federal courts; and human rights bodies and mechanisms like the Human Rights Council, and human rights treaty bodies. The research will show that power and politics have impeded Palestinians’ access to successful judicial redress. While there may still be value to pursuing these claims within legal fora, they must be complemented by effective extra-legal strategies aimed at cultivating political will among states as well as grassroots non-state actors.
For purposes of this paper, accountability is defined as a state’s commitment to respect, uphold and adhere to international customary norms as well as legislated laws explicitly endorsed by states, in particular, humanitarian and human rights law. This includes a third-party state’s duty to comport with recommendations issued by multilateral legal bodies aimed at shaping the behavior of a non-complying state. While recognizing that a state-centric system is incapable of adequately protecting and ensuring the well-being of persons and peoples, this briefing paper assesses how accountability can be approximated within these distorting and imperfect bounds.
[Click here to read the full working paper (pdf)]
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[1] Noura Erakat is an Assistant Professor at George Mason University and a Co-Founder/Editor of Jadaliyya e-zine. Most recently, she was a Freedman Teaching Fellow at Temple Law School and has taught International Human Rights Law and the Middle East at Georgetown University since 2009. She served as Legal Counsel for a Congressional Subcommittee in the House of Representatives, chaired by Congressman Dennis J. Kucinich.
[2] Bianca C. Isaias is a third-year J.D. student at NYU School of Law. She was a 2014 Ella Baker Intern with the Center for Constitutional Rights, where she worked on their International Human Rights docket. She was a 2013 International Law and Human Rights fellow with NYU’s Center for Human Rights and Global Justice..
[3] Salmah Rizvi is a 2L at NYU School of Law on a Paul & Daisy Soros Fellowship for New Americans. She is a member of NYU’s prestigious Moot Court Board and Co-Chair for the Women of Color Collective. Prior to law school, Salmah worked at the U.S. Departments of State and Defense as a lead linguist and analyst.
[4] Erakat, Noura, It’s not wrong, it’s illegal: Situating the Gaza Blockade between International Law and the UN Response, 11 UCLA J. IsLAmIC & NeAr e.L. 37 (2011-2012).