israel and palestine - europa-uni
TRANSCRIPT
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Dr. Robert Frau 2015
Israel and Palestine Current Issues of Public International Law
Overview • Statehood • Westbank • Gaza • Jerusalem and Golan-heights • Iran
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Israel and Palestine Current Issues of Public International Law
Israel • Territory • People • Power • Legality does not
matter (and is not in question!)
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Palestine • Territory • People • Power
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Israel and Palestine Current Issues of Public International Law
Palestine • Territory • People • Power
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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.
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Israel and Palestine Current Issues of Public International Law
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.
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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
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Israel and Palestine Current Issues of Public International Law
States
Other subjects
of Int Law
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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
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Israel and Palestine Current Issues of Public International Law
Westbank
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Israel and Palestine Current Issues of Public International Law
Westbank • A-, B- and C-zones, • Israel retains rights of last resort • Law of occupation brings rights and
obligations
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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?
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Israel and Palestine Current Issues of Public International Law
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.
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Israel and Palestine Current Issues of Public International Law
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.
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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.
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Israel and Palestine Current Issues of Public International Law
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.
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Israel and Palestine Current Issues of Public International Law
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.
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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.
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Israel and Palestine Current Issues of Public International Law
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
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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.
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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.
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Israel and Palestine Current Issues of Public International Law
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.
Israel and Palestine Current Issues of Public International Law
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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. [...]
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Contra • de-facto-Annexion • Risk of demographic changes... • ...right to self-determination. • Property, use of land etc.
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Pro • temporary • Law of occupation and security • Humanitarian considerations and military
necessity • Decrease in suicide attacks
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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
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Gaza
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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.
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Israel and Palestine Current Issues of Public International Law
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
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Careful! Seperate!
ius ad bellum ius in bello Use of force, Self-defense
IHL
= the entire conflict = each and every operation = occupation
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Israel and Palestine Current Issues of Public International Law
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
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Israel and Palestine Current Issues of Public International Law
Legal Framework in Gaza • IHL:
– Principle of distinction! – Civilians are protected! – Collateral damage! Always and for everyone!!!! NO exceptions
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Legal Framework in Gaza • IHL:
– Principle of distinction! – Civilians are protected! – Collateral damage! Always and for everyone!!!! NO exceptions
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Israel and Palestine Current Issues of Public International Law
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
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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
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East-Jerusalem and Golan-heights
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Israel and Palestine Current Issues of Public International Law
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
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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.
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Israel and Palestine Current Issues of Public International Law
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. [...]
Israel and Palestine Current Issues of Public International Law
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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
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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
Israel and Palestine Current Issues of Public International Law
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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
Israel and Palestine Current Issues of Public International Law
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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
Israel and Palestine Current Issues of Public International Law
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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
Israel and Palestine Current Issues of Public International Law
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Summary • Different results possible
– Westbank – Gaza – Judicial review
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Summary • Palestine and international law?
– Gaza and policy – Fatah/PLO/ State of Palestine
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Questions? [email protected]
Israel and Palestine Current Issues of Public International Law
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