used for internal repression. But Gaza is not ‘internal’ to Israel. It is not part of Israel. Not does Israel even occupy Gaza any more. So how could this be ‘internal repression’? I called the Foreign Office and asked them. Yes, they said, the decision was definitely taken under Criterion Two: there was a ‘clear risk’ that the parts might be used for ‘internal repression’. But how could this be ‘internal’ when Israel no longer occupied Gaza? I asked. This is what they replied: ‘For the purposes of Criterion Two, we consider the Occupied Palestinian Territories as ‘internal’. This is a reflection of the effective control Israel displays in the Occupied Palestinian Territories, which we continue to consider occupied territory. Although there is no permanent physical Israeli presence in Gaza, given the significant control that Israel has over Gaza’s borders, airspace and territorial waters, Israel retains obligations under the Fourth Geneva Convention as an occupying power in relation to Gaza.’ The wording here is ambiguous, in that it isn’t clear whether the Foreign Office is claiming that Israel is still occupying Gaza under terms set out by the Fourth Geneva Convention or whether, having separately decided that Israel is still an occupying power, it is merely saying it therefore has certain obligations under the Fourth Geneva Convention. Either way, the argument is bogus. Israel does not still occupy Gaza, either in common-sense observational terms or under international law. The Fourth Geneva Convention does not define an ‘occupation’ or an ‘occupying power’. It merely sets out the obligations of such a power. It is the Hague Convention which defines ‘occupation’, and it is quite clear that therefore Israel does not occupy Gaza. As Avinoam Sharon writes: The initial internationally accepted legal framework defining and regulating occupation is found in the Hague Regulations (Hague II), 1899. Articles 42 and 43 of those Regulations, which are identical to Articles 42 and 43 of the Hague Regulations (Hague IV), 1907, 11 set out the conditions that constitute ‘occupation’: Article 42 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. Article 43 The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. These articles clearly recognize three preconditions for deeming an area to be occupied in the sense of being subject to rules of international law. First, the area is under the actual control of the hostile army. Second, the area was previously the sovereign territory of another state. Third, the occupier holds the area with the purpose of returning it to the prior sovereign. This third precondition would seem to be the underlying idea for respecting the laws in force, and for the other articles of the Convention that require maintenance of the status quo ante bellum. Thus, Oppenheim states: ‘As the occupant actually exercises authority, and the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the territory and its inhabitants; and all legitimate steps he takes in the exercise of this right must be recognised by the legitimate Government after the occupation has ceased.’ None of these conditions applies in Gaza. It was never sovereign territory; before 1967 it was illegally occupied by Egypt. And it is not under the authority or actual control of Israel’s military, which isn’t even there; Gaza, as we all know, is run by Hamas. Legal scholars have always emphasised the need to show the practical, everyday reality of military occupation in governing the territory in question: ‘Military occupation is always a question of fact…It follows that in an effective occupation the previous government in the territory has been rendered incapable of exercising there its governmental authority, and that the occupying force has substituted its own authority for it. Furthermore, the occupation only extends to the area of the territory where such conditions prevail.’ (Morris Greenspan, The Modern Law of Warfare; University of California Press, 1959); ‘Occupation is invasion plus taking possession of enemy country for the purpose of holding it, at any rate temporarily. The difference between mere invasion and occupation becomes apparent from the fact that an occupant sets up some kind of administration whereas the mere invader does not.’ (H. Lauterpacht ed., 2 Oppenheim’s International Law: A Treatise 434-36 (Longmans, 1952). The idea that Israel still occupies Gaza is absurd. Israel could not therefore have been engaged in ‘internal repression’. Indeed, how can anyone think it was? Operation Cast Lead was a military operation designed to stop rocket attacks from Gaza upon Israel. It was not repression; it was a defensive war, a measure which like any other country Israel is entitled to take to defend its citizens. But it would seem that the real sting of this partial arms embargo is that the British government does not think Israel has that fundamental right. The government says it took this action because Israeli gunships were used to fire on Gaza during Cast Lead. But as others have observed, it has offered no evidence that anyone was hit or killed by these ships. It follows therefore that the mere fact that Israel used British equipment to fire on Gaza is enough to trigger an embargo. That implies that for the British government, this is not a matter of Israel having done anything that contravenes any laws of war. It means that Israel’s fighting at all in Gaza violates the agreement under which weapons were sold. In other words, it means that Israel has no right to fight in Gaza at all; that any such self-defence against a hostile outsider is actually ‘internal repression’; and so, in the British government’s view Israel alone has no right to military self-defence against the Palestinians. That is the inescapable conclusion from its decision to withdraw those licences; and any other country that follows suit will be saying the same malicious and wholly discriminatory thing.
Why Is HMG Misrepresenting International Law Against Israel?
When it was revealed that the British government had revoked five export licences for the sale to Israel of warships’ gun parts on account of its ‘disproportionate’ behaviour in Gaza during Operation Cast Lead, which I wrote about below, one aspect of what the Foreign Office was saying jumped out at me. It appeared that Israel’s crime was to fall foul of Criterion Two in the Consolidated Criteria for Licence Decision Making. Criterion Two invites consideration of whether the proposed item for export would be
Wednesday, 15 July 2009
Posts
