Category Archives: Israel

New Controversial Laws in Israel: Some Thoughts

The Knesset, Israel’s Parliament has recently approved a series of apparently controversial laws which has provoked some strong opposition. The first one allows small communities in the Negev and Gallilee to refuse a resident permit to people who are “ill-suited to the community’s way of life” or “might harm the community’s fabric”. The second law, which is being called the “Nakba law”, would allow the State to fine state-funded institutions who commemorate the “Nakba” (literally “catastrophe”), the Palestinian day that coincides with Israel’s independence day and  commemorates the loss of their land. The third law would allow courts to revoke someone’s citizenship for certain acts, such as terrorism, treason or collaboration with the enemy in time of war, or “any other act which harms national sovereignty”.

There is no denying that the general political context of the adoption of these laws is less that optimal. The right wing coalition of Netanyahu and Lieberman is playing into the population’s xenophobic and security fears and has been bad news for peace in the middle east since it was elected to power last year. In this context, it is a delicate intellectual exercise to coldly consider the actual content of these laws and try to analyse them in a decontextualised way, but I still want to share some thoughts on two of them, the nationality law and the Nakba law.

In relation to the nationality law, it was strongly denounced and declared to be “racist”, because aimed at the country’s Arab minority. However, in the absence of actual practice of the law, and I insist, independently of the intent of the majority which passed the law, I find this conclusion a bit hasty. For one, if this law is controversial, then it should be controversial in many countries, not just Israel. Indeed, many States have such provisions in their national legislation for such crimes. One could question whether such type of law should exist at all, on the basis that all nationals should be treated the same way, independently of their “origins” (which I would argue), but it is not a specific Israeli debate. Second of all, on the scope of the law, it only “discriminates” against persons having committed a specific crime. But that is how criminal law works. Saying otherwise would be absurd. It would be like saying that the law providing for 30 years in prison for a murderer is discriminatory against murderers… More specifically, saying that the law is “racist”, implies that the law considers that all Arabs are terrorists and traitors. That might be what Lieberman thinks, but that is not what the law says. Therefore, if you accept the principle of that law (which I wouldn’t), its current formulation would seem unproblematic to me.
I would however have one reservation that would need to be verified, because none of the news reports I’ve read give any indication: that of the situation of persons with a single nationality. Indeed, the French law, for example, provides that you cannot revoke the nationality of someone if it would result in them being stateless. This is in application of the international law rules in that respect, more particularly the Convention on the reduction of Statelessness of 1961. Israel has not ratified the Convention, but there could be some argument that its provisions form part of customary law. In this sense, it would be particularly problematic if the law did not provide for an exception in such cases.

In relation of the Nakba law, I must admit that I am of two minds. But first, three points on the law itself.
For one, it is unclear from what I’ve read what the law says exactly. According to wikipedia (I’m sorry for the source, but because I don’t read hebrew, I’m limited to secondary sources which would need to be verified), the law doesn’t actually mentions the Nakba. It allows for the witholding of:

government funding from Arab towns and state-funded organizations or public institutes that participate in “activity that involves the negation of the existence of the State of Israel as the state of the Jewish people; the negation of the state’s democratic character, support for armed struggle or terror acts by an enemy or a terror organization against the State of Israel; incitement to racism, violence and terror and dishonoring the national flag or the national symbol”

Even if it does, and second of all, it is unclear what the “Nakba” specifically commemorates. According to Human Rights Watch, it refers:

 to the historic episode in which hundreds of thousands of Palestinian residents of what is now Israel fled and hundreds of villages were destroyed during the conflict after Israel declared independence in 1948

However, according to other sources, its full name is “Yawm an-Nakba”, the  “day of the catastrophe”, and is commemorated on the same day as Israel’s independence day, in reaction to the specific creation of the State of Israel.

Third of all, the law does not prohibit all commemorations of the Nakba, it prohibits such commemorations by publicly-funded institutions. While the definition is wide-ranging, it is still limited.

With this in mind, a few thoughts. On principle, my natural instinct is in favor of absolute freedom of expression. I argued along those lines in one of my very first posts. I strongly oppose the trend towards the criminalization of free expression, even if it’s offensive, and I am, for example, strongly opposed to laws criminalizing holocaust denial.

But this is where, to come back to the very first point I made, I reach the limits of “decontextualising” the analysis of the law. In a “pacified” society, I can argue that freedom of expression should always prevail, and that everybody should be allowed to express their opinion, even if that opinion mourns the actual creation of the State where he lives. Discussion of the past should be free and unimpeded.
However, Israel is not a pacified society, on either side. Israel still feels threatened in its existence, whether this is in fact a real danger being irrelevant. Palestinians rightly feel that they have been robbed of their nationhood and have suffered 60 years of Israeli occupation, and half-hearted support from neighboring Arab States. The Nakba is not the past, it is the present and its celebration has very actual meaning in the current political context . As the debates on transitional justice, truth, reconciliation and peace have shown in the past decades, there is no simple answer, as some organisations would let have believe, as to how to deal with situations where the social fabric is so torn. Given the fragile balance (or imbalance), I would not have the arrogance to try and impose a theoretically perfect solution (freedom of expression) on Israel. The only option is compromise and some measure of balance.
In this context, I don’t find it that scandalous that a State would frown upon public institutions (I would adopt a more limited definition to cover only State institutions) promoting the commemoration of a day that basically mourns the formal creation of that State. I would not imagine a play in a publicly-funded French school celebrating Petain, and mourning his defeat in 1945 (just to be clear, I take this as an example of an ontological fracture in the nature of the French State, not as a comparison between Petain and the Palestinians). On the other hand, with a broader definition of what the Nakba represents, Israel should try to face its past and acknowledge that its creation, while not being put in doubt, came with serious human rights abuses that still leave open wounds today. This would however require clarity that the celebration of the Nakba does not imply that Israel should not exist as a State today, which is politically and understandably difficult to accept for Israel.

If anybody has any corrections to make on the actual content of the laws, I’d be happy to make the appropriate changes. I look forward to your comments on this complex topic. Those who would be tempted to simplistically put me in the “pro-palestinian” or “pro-israeli” box, based on one or other sentence in my post (biased people generally tend to have a surprisingly accurate capacity for selective reading) are also invited to share their thoughts for comic relief.

Palestine and the ICC (follow-up): asking the right question and giving the wrong answer

Following our (really long) online debate some months back (see here and here), Michael Kearney has published another opinion on the declaration of the PA under article 12(3) of the Rome Statute. It very clearly highlights the different approaches to Palestinian Statehood and argues (along with Alain Pellet, who issued his own opinion on this) that a functional approach should be adopted to allow the declaration of the PA under 12(3). The paper might be called “asking the right question”, but I fear once again that it’s not giving the right answers…
I won’t redo all the debate again, but I have two nagging questions that remain unanswered for me in this reasoning.

1) One argument is that the PA has criminal jurisdiction over the crimes, so it can transfer the jurisdiction. But how is material jurisdiction over the crimes relevant for 12(3)? This provision follows 12(2)  which provides that:

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.

 There is no mention of material jurisdiction here. It’s territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let’s imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters… 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three…

2) A simple question: would you agree that the phrasing of the provision which talks about a “State which is not a Party to this Statute”, implies that an entity that can make a declaration under 12(3) is also an entity that can actually sign the Rome Statute? I personally don’t see any other interpretation of 12(3), and in that case, it begs the further question: if you’re supporting the PA’s declaration, why not support its signature of the Statute? That would certainly send a strong message to the international community and force the ASP to come up with a clear answer as to what is a “State” for the meaning of the Rome Statute.

I look forward to some answers!

The Israeli intervention: more legal questions on the Application of IHL and Aggression

The story on everybody’s mind since Monday is of course the Israeli’s ultimately bloody take over of a Turkish ship in international waters of the coast of Israel. Beyond the complex political situation, which I will try to avoid considering here (although I do find Turkey’s official support of the activists ironic given its own track-record in terms of human rights and refusal to acknowledge Kurdish pleas for independence, or at least autonomy), this situation raises a incredibly large array of legal questions, some of which are being dealt with already.
There is the question of whether this is an act of piracy, which I think is unlikely given the definition given in UNCLOS, as is developed here. The question of the legality of Israel’s blockade of Gaza has also given rise to a dense debate on Opinio Juris and the issue of whether the ICC can and should exercise jurisdiction for these events has been considered by Professor Schabas.

I’d like to briefly raise some additional issues that are puzzling me, and in fact relate to some of the previous arguments made.

For one, everybody is assuming the application of IHL to the situation, due to the conflict in Israel, or evaluating its application in light of the conflict between Israel and Hamas. Professor Schabas does this in his link by saying that the it would constitute a war crime because the situation in the occupied territories and Gaza in particular is an armed conflict. I find this quite unpersuasive, or at least to be explained. The facts are that Israel boarded a ship sailing under a Turkish flag in high seas. There is of course a political link with what is going on in Gaza, but is there a legal one? I would argue that there isn’t and that the fact that there is an armed conflict in the occupied territories is irrelevant.One rather needs to evaluate the existence of a conflict between Israel and Turkey in order to apply IHL to the situation. This is a strong methodological disagreement, but has few practical consequences. Indeed, it seems generally accepted (see the ICRC opinion paper) that a single event of military nature can trigger the application of IHL. In any case, given Tukey’s jurisdiction over the boat, the act can definitely prosecuted under national criminal law, and it is in this context that the claims to individual self-defense must be assessed.

Which leads to my second point, which is interesting in light of the ongoing debates at the ICC Review Conference in Kampala, is whether the Israeli intervention constitutes an act of aggression against Turkey. I’d say it probably constitutes an unauthorized use of force under the UN Charter, but does it rise to the level of Aggression? After a perfunctory reading of Resolution 3314 of the Assembly General on the definition of aggression, there are at least two categories listed in Article 3 of the Resolution that could seem to apply on the face of it:

“Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
[…]
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;”

This would apply assuming that a ship sailing under a Turkish flag, over which Turkey has exclusive jurisdiction, is considered as Turkish territory for the purposes of establishing an act of Aggression. I’m not familiar enough with the Law of the Sea to say for sure, but it would make sense. If such a qualification did apply, Israel’s international responsibility could be engaged.

In relation to the this point, what is, if any, Turkey’s responsibility under international law? As the country of nationality of the ship, it must be responsible for the actions of the ship to some extent. One can imagine that Israel could claim that Turkey failed in its international obligations by supporting the breaching by a ship carrying its flag of the territorial sovereignty of another State, despite that State’s systematic opposition to such entering in its territorial waters (this of course raises questions on the “excuses” that Turkey could put forward in terms of the provision of humanitarian aid in a situation of armed conflict and the correlative claims from Israel that the political claims associated to the endeavor would deny neutral status).

Of Legal Reasoning and Wishful Thinking: The ICC and Gaza

In December, a well established Palestinian Human Rights organisation issued a Position Paper on whether the ICC should recognise the Palestinian’s Authority’s submission of a declaration to the OTP under article 12(3) of the Statute. For memory, this article provides that:

“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.”

 The position paper argues that one should not adopt the general international law definition of statehood, and that in line with the “spirit” of the Statute, the question should be whether the PA has a jurisdictional authority over the crimes and can therefore transfer this authority to the ICC. The answer is positive (unsuprisingly… and I say that not because I doubt the intellectual honesty of the drafters of the policy paper, but because I doubt they would have published the paper had the conclusion be otherwise…).
I find the argumentation pretty smart, but ultimately flawed and unconvincing. Here are a few issues I have with the policy paper.

The question of a different definition of “State” in 12(3)
Here for me lies the biggest flaw in the argumentation. The policy paper refers, among other things to the fact that the Security Council can refer a “situation” to the ICC, as in the Darfur case, that doesn’t cover a State as defined in international law and therefore that it has some flexibility to circumscribe the investigation of the ICC . That is true… but irrelevant. As we say in French, “comparaision n’est pas raison”. There is no link between the definition of a “situation” in the Rome Statute and the definition of “State” in article 12(3). Indeed, the Security Council could very well refer, for example, the situation in the western provinces of China and the repression of the ouigours and that would not mean that the Xingjian region would itself be recognise as being able to make a declaration under 12(3). These are two different legal issues altogether.
More importantly, 12(3) refers to a “State which is not a Party to the Statute”. The Statute itself therefore considers that a “State” is an entity capable of joining the ICC Statute. In order for the PA to use 12(3), it must be established that it has the capacity to join the Rome Statute and is therefore a State itself, under general international law, which the Policy Paper itself recognized as difficult to establish under current international circumstances. I have difficulty in interpreting 12(3) differently against its wording.

The limits of “the object and purpose” approach to treaty interpretation
One paragraph(paragraph 20) of the Paper is particularly troubling and I quote it in full to be accurate:

“The Court has not been long in existence but it is clear from the cited examples that past precedent suggests a tendency to interpret the mechanisms of the Rome Statute expansively, while respectful of the rule of law, and in a manner which prefers fulfilment of the aims of the Statute over a narrow and unduly legalistic reading of international criminal law. It would be contrary to the purposes set forth in the Statute’s Preamble to exclude from the scope of the Court’s jurisdiction a geographical zone in which war crimes and crimes against humanity are perpetrated, on the sole premise that it is not generally recognized either as constituting a state, or a part of any state. Given the Preamble’s affirmation “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and its determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, it is not unreasonable, indeed, it must be expected, that in interpreting the meaning of ‘state’ for the purposes of Article 12(3) of the Rome Statute, an expansive approach, divorced from the political considerations which otherwise tend to guide state recognition, and rooted firmly in the principles and purposes of the UN Charter, must be followed.” (my emphasis)

This shows a tendency in a lot of Human Rights activists of interpreting broadly international instruments. It is at the basis for a lot of the case law of the ad hoc tribunals and at the ECHR. Taking the high moral ground allows people who have a more traditional approach to treaty interpretation to be labelled “ennemies of the cause”. If I don’t accept a HR-friendly expanding of a legal text to cover more situations than initially envisioned, it shows that I’m against HR. That is a dangerous route and plays with the limits of law and morals. It is one thing to recognize the atrocious nature of certain human conducts, it is another to go beyond the law to apply directly a moral rule. As a lawyer, I cannot agree with this “common sense” approach which basically renders the rule of law meaningless.
The “on the sole premise” comment I put in bold above shows the way things are considered. We appear as petty lawyer technocrats who can’t see the bigger moral picture. But it is not “on the sole premise”! It is the application of the Statute, a document negotiated, drafted and entered into force based on that drafting. If we follow the “common sense” approach, we might as well give up any rules of international law and at the least any certainty in its application. Who is to decide what is best for whom? I think it is the advocates of this approach who fail the see the bigger picture: that in most cases (with the adequate checks and balances of course) the rule of law implies the mediation of process in the establishment and change of rules in order to avoid arbitrariness. You can’t just change the rules just because you think its right or wrong. I perfectly recognise the inadequacies in the international lawmaking process, which is pervaded by selfish State interests. But I don’t think that the solution, on the long run, is to bypass the legal process entirely, even if it offers a short-term solution to a apparent loophole.
As for the “political neutrality” called for by the Paper, it is very nice, but totally unconvincing. Human Rights often cloud themselves in the shroud of universal morals detached from politics. But everything is political, in the strongest sense of the term. Societies make choices in governance. Nothing is imposed from above. Al Haq should recognise that it has a political agenda, and there is no shame in that. Like I said before, I doubt they would have published a policy paper saying that the PA was not able to make a declaration and that is perfectly understandable. But let’s not pretend to live in an apolitical utopia of HR and goodwill to all men. This is not the nature of men, and more importantly, clouds issues that are key in understanding the world. But i’ve gone off on a little of a tangent here… back to the issue…

Other relevant criteria
Having interpreted 12(3) as it did, the Policy Paper moves on to answer three questions as posed by the OTP to decide whether to accept the declaration under 12(3). In this sense, the OTP is contributing to the interpretational confusion of article 12(3) by even accepting to discuss the issue. The 3 questions are as follows:

1. Does the PA have the capacity to enter into international agreements?

2. Does the PA have the capacity to try Palestinians on criminal charges?

3. Does the PA have the capacity to try Israeli citizens on criminal charges?

I won’t go into a detailed consideration about these three questions and the argumentation put forward by Al Haq. More generally, I don’t see how these considerations are relevant.to the application of 12(3). 12(3) only refers to the exercise of 12(2) (blatantly absent from the Policy Paper!!!) which gives the two following jurisdictional criteria:

“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.”

 12(3) doesn’t exist in a void and has to be read in conjunction with 12(2). Therefore, accepting that the PA is a State under 12(3) is also recognizing that it is State under 12(2) which refers to two very traditional attributes of the State: territory and nationality. Presumably, the PA is not giving its “authorisation” for 12(2)(b), given that the alleged perpetrators will be Israeli, so 12(3) must apply in this case to 12(2)(a), thus indirectly accepting that the PA is a State with some territorial sovereignty. Pretty close to Statehood in the traditional sense.
Outside this consideration, the 3 questions posed are broadly irrelevant. The first one is, if one accepts the Policy Paper’s interpretation of 12(3). If the PA is not a State, it must still have the capacity to enter into a cooperation agreement with the ICC. But the other two are not. The criminal jurisdiction over the crimes is not helpful to apply 12(3). As the Policy Paper itself argues, most international crimes carry a certain obligation to exercise universal jurisdiction. Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? it doesn’t make sense. Again, the two considerations for 12(3) are those contained in 12(2): nationality and territory.

Why the confusion?
Why have these criteria been considered at all, including by the OTP? This is a totally uninformed guess, but I think there might be confusion as to the extent of 12(3). As I said before, it is linked to 12(2) and the jurisdictional links that circumscribe ICC jurisdiction. But 12(3) is not an additional trigger mechanism. There are only three: referral by a State Party, the Security Council and the exercise of proprio motu powers by the Prosecutor (are people actually still holding their breath on that one?). The conditions put forward by the OTP and the Policy Paper are better fit to the triggering of a case or the admissibility of the case, not the existence of the territorial and national jurisdiction over the case, which is what 12(2) and 12(3) are concerned with. Even if the declaration were to be accepted, it would still be required that a State or the Security Council refer the situation, or that the prosecutor seize himself of the situation.

Conclusion
This is once again a case of mass delusion in my opinion, of wanting the Statute to say something it doesn’t and therefore pretending that it does. The challenges of combating international crimes must be met, but not at the cost of legal certainty. Now that I think about it, the Policy Paper is wrong in saying that the Statute does not provide for situations like this, thus allowing alleged crimes go unpunished. The Security Council, as the Paper mentions, can refer any situation with a lot of discretion, irrespective of the status of the territory or the nationality of the alleged perpetrators. Of course, the US will never allow a case involving Israel to be referred to the ICC, but this reveals a problem with the Security Council, where the fight should be taken, not the ICC Statute, which, as a treaty is bound by a fundamental rule of international law, that an agreement binds only those who consented to it. Of all people, Human Rights activists should agree with this concept of liberty that you can’t impose something on someone against his will…

The Geneva Show on (anti-)Racism

Once upon a time… on the birthday of Hitler (oh, the irony…)…

It was written like a crafty Hollywood script… Enter the Iranian president, under the applause of part of the room. The speech starts. Cue unplanned protesters wearing a clown’s attire and who threw a red nose on stage (probably all participants had been asked to take off their shoes to avoid any assault on the speakers…). A few shouts later, they are dragged away by the security team of the conference. And then, to the utmost suprise of the audience, Ahmadinejad starts ranting about the immigrants sent by Europe to create a racist State in the Middle East. Faced with this unforeseen speach from a usually so moderate world leader, some representatives, mostly from European countries, recovered fast from the suprise and improvised a courageous walkout to show their opposition. Following this, despite the short notice, all these countries manage to issue in a suprinsingly coordinated way strong press releases condeming this attack on Israel… The UN expresses dismay at the Iranian president’s outbreak. This is a perfect storyline, full of unexpected drama and…

oh come on! Who are we kidding? This whole joke was as predictable as an episode of Mission Impossible (did anybody ever really believe that they might not save the day?). Everybody wins from this theatrically staged farce in Geneva for the second conference against Racism, after the one organised in Durban in 2001.
It was obvious that the bearded leader of Iran would say something that could create outrage. But a walkout looks so much better on TV than not showing up at all. Like that, the Europeans can show their voters, sorry, citizens, their strong rejection of racism. Ahmadinejad also wins, by looking like a courageous martyr who has the balls to stand up to the Western-capitalist-zionist-freemason-aliens-from-outer-space conspiracy.

The Durban Conference in 2001, despite its good intentions, was hijacked by those wanting to single out Israel as a racist State. Very few countries actually reacted when at the time some “NGOs” distributed anti-semitic material. Only the USA and Israel left the conference back then. And even if the final declaration was mild in its language, most of the debates were focusing on Israel. As for the “Durban II” conference, the signs were not good. A document circulating some weeks before the start of the event, drafted by the Preparatory Commission, headed by Libya with an Iranian Vice-President, contained strong language against Israel and called for the “criticism of religions” to be included as Racism, basically preventing blasphemy. And what did this lead to? How did most countries respond to that? Some States actually decided to boycott the conference (USA, Israel, but also Italy, the Netherlands and Germany). But most apparently learned from the previous event… that they had to have better communication!

Which brings us back to today. The only lesson to draw from this is that it is an artful operation in political PR. All the participants might not agree on the content. But they can all meet up in the dressing room afterwards and congratulate each other on the success of the performance, and get ready for the next show…

… or go back to hone their skills at the permanent rehearsal stage for this type of mascarade that is the UN Human Rights Council… but let’s keep this for another time, shall we?