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Pragmatism distanced from principle, or disengaged politicking? A conference on IHL enforceability and a judgement of the Israeli Supreme Court*

A while ago, on June 1, 2008 I attended an international conference under the title ‘Complimenting IHL: Exploring the need for additional norms to govern contemporary conflict situations’ organised by the Minerva Center for Human Rights of the Hebrew University of Jerusalem and the ICRC. The question at stake was whether the problems created by an archaic legislative framework of international humanitarian law called for further legislation (for the purpose of clarification) and if this indeed was the only means to achieve these objectives?

In response to the opening keynote address of the conference delivered on 1 June, 2008 by the honourable Judge Theodor Meron, Prof. Françoise Hampson spoke, amongst other things, about the role of the law in the regulation of State activities of this kind. She noted many a time that the imminent, and most eminent, problem is not the law itself, and its conceptualisation of certain notions and rules, but rather its enforceability and thereby implementation. The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws. Why is it then that we usually resort to new legislation for solutions? Because it is easier.

Processes of this kind that look for solutions in new legislative frameworks imply an unavoidable result – they make the current laws seem futile and meaningless and belittle their importance as a whole – creating a very dangerous situation of the present reality, when new legislation has yet to be designed or even conceptualised. So, if this is the present approach to the laws of war, why should new laws be treated any differently?

Subsequent remarks implied that what needs to happen is the establishment of a truth commission or analogous impartial and independent investigatory body that would undertake to investigate the situation from a neutral position and into considerable depth, compensate the victims, and punish the culprits. The multiplying and fragmenting international judicial system of courts and tribunals is nonetheless dependent on the will of states and is subject to their availability and acceptance of not only jurisdictional, but also procedural terms. Such an ‘opt in’ prerequisite considerably limits the scope of their jurisdiction. There is, however, still hope and realistic prospect for a similar criminal tribunal to those established in Rwanda (ICTR) and ex-Yugoslavia (ICTY), or the hybrid courts of Sierra Leone and Cambodia, to be established in the Palestine/Yisrael region.

In these circumstances we should be reminded that if indeed the relevant parties (primarily the State parties involved who continue to flawedly rely on reciprocity as a grounds for legality, but indisputably equally the non-state actors) would comply, at the very least, with the minimal legal standards that bind them at present, it would make for a more solid ground for all other constructions and processes of socio-cultural and political, and the like.

To evince the judicial practice that resonates this problematic, and give expression to the worries of human rights practitioners working in the region, the judgement of the Israeli Supreme Court in the case of HCJ 9132/07 Jaber Albasyouni Ahmed and others v The Government of Israel, handed down on 30 January 2008 is a good example to present. This was a case where 12 different petitioners, amongst them 9 organisations (one of which is the organisation I presently work with, Hamoked – Center for the defence of the individual), lodged a fundamental (as opposed to individual) petition against the policy decision of the Israeli authorities to limit the supply of gas and electricity to the Gaza strip and intensify the already traumatic humanitarian crisis in the region.

This petition was decisively rejected by the judges. President of the HCJ, Judge Dorit Beinisch, notes in the opening paragraph of the judgement that there is no obligation on the State of Israel to transfer an unlimited amount of electricity and gas to the Gaza Strip “in circumstances where some of these resources continue to sustain the terror organisations for the purpose of targeting Israeli civilians.”

She continues, “Israel no longer has effective control of the occurrences in the territory of the Gaza strip…[and] in these circumstances, there is no general obligation on the State of Israel to care for the well-being of the population of the Strip and to maintain the public order in the region under the framework of the law of occupation in international humanitarian law.” (para. 2)

The HCJ was thereby convinced that “the decrease in supply in [three out of the tens of electricity lines] does not violate the humanitarian obligations that bind the State of Israel in the context of the “armed conflict” ongoing between Israel and the Hamas group that is controlling the Gaza Strip” (para. 18). By choosing to sidestep Article 55, Fourth Geneva Convention – that holds, “the occupying power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate” – the Court avoids direct confrontation with what is, and has even during the judicially defined time of “Belligerent occupation”, a clear and direct violation of Israel obligations under international law.

In retrospect, these assertions are of a considerably paradoxical nature. The Court never recognised the “humanitarian legal framework” per se (and definitely not the full range of applicable instruments) and in this decision it refers to the application of this framework retrospectively whilst noting that it no longer applies (when in law and fact it clearly does, as it has before, given the IDF’s continuous presence and effective control of the Strip and the daily life of its local population).

It should be noted that this is only one of many amongst a collection of unsound judgements that misinterpret and selectively reference the very fundamental international legal instruments (signed and ratified by the State of Israel) applicable to armed conflicts.

Complimenting this case, there was a parallel decision given following an appeal brought by one of the multinational companies fighting over the right to exploit the resources off the Gazan coast, found on a seabed off the Gaza Strip. The State of Israel, acting as an Occupying Power, has been employing multinationals to exploit the natural gas resources, whilst the population of the whole Strip is suffering from a severe shortage in petrol and cooking gas (bakeries are being shut down and cars are running on cooking oil). The prohibition on exploitation of the natural resources by the occupying power (grounded equally in the UN Declaration on Permanent Sovereignty over Natural Resources and analysed in the arbitration of Texaco Overseas Petroleum v Libya) is solidly grounded in international law and has earned extensive discussion in the ICJ judgement in Congo v Uganda.  This particular case, and its parallel with the Albasyouni decision is not recalled anywhere in the press and the reminence of this major ongoing scandal can only be evinced by much older news pieces from the international headlines, announcing the joint venture of multinational companies for the exploitation of gas in the region.

* A similar version of this post is found on the weblog Non-Liquet at: http://nonliquetblog.blogspot.com/2008/06/pragmatism-distanced-from-principle-or.html

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