Israel and Palestine. Current Issues of Public International Law Overview Statehood Westbank Gaza Jerusalem and Golan-heights Iran

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1 Dr. Robert Frau 2015 Current Issues of Public International Law Overview Statehood Westbank Gaza Jerusalem and Golan-heights Iran Dr. Robert Frau, 2015, S. 2 Israel Territory People Power Dr. Robert Frau, 2015, S. 3 Legality does not matter (and is not in question!) 1

2 Palestine Territory People Power Dr. Robert Frau, 2015, S. 4 Palestine Territory People Power Dr. Robert Frau, 2015, S. 5 2

3 Dr. Robert Frau, 2015, S. 7 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. Dr. Robert Frau, 2015, S. 8 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. Dr. Robert Frau, 2015, S. 9 3

4 Dr. Robert Frau, 2015, S. 10 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 Dr. Robert Frau, 2015, S. 11 States Other subjects of Int Law Dr. Robert Frau, 2015, S. 12 4

5 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 Dr. Robert Frau, 2015, S. 13 Westbank Dr. Robert Frau, 2015, S. 14 Westbank A-, B- and C-zones, Israel retains rights of last resort Law of occupation brings rights and obligations Dr. Robert Frau, 2015, S. 15 5

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7 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? Dr. Robert Frau, 2015, S. 19 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. Dr. Robert Frau, 2015, S. 20 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. Dr. Robert Frau, 2015, S. 21 7

8 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. Dr. Robert Frau, 2015, S. 22 Art. 1 (1) ICCPR (1966) All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Dr. Robert Frau, 2015, S. 23 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. Dr. Robert Frau, 2015, S. 24 8

9 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. Dr. Robert Frau, 2015, S. 25 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 Dr. Robert Frau, 2015, S. 26 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. Dr. Robert Frau, 2015, S. 27 9

10 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. Dr. Robert Frau, 2015, S. 28 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. Dr. Robert Frau, 2015, S. 29 Art. 51 UN Charter Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence 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. [...] Dr. Robert Frau, 2015, S

11 Contra de-facto-annexion Risk of demographic changes......right to self-determination. Property, use of land etc. Dr. Robert Frau, 2015, S. 31 Pro temporary Law of occupation and security Humanitarian considerations and military necessity Decrease in suicide attacks Dr. Robert Frau, 2015, S. 32 ICJ: Consequences cease violations of int. law Israel responsible under international law other states must not recognise de-factoannexation or assist Israel erga omnes obligations Dr. Robert Frau, 2015, S

12 Gaza Dr. Robert Frau, 2015, S. 34 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. Dr. Robert Frau, 2015, S. 35 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 Dr. Robert Frau, 2015, S

13 Careful! Seperate! ius ad bellum Use of force, Self-defense ius in bello IHL = the entire conflict = each and every operation = occupation Dr. Robert Frau, 2015, S. 37 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 Dr. Robert Frau, 2015, S. 38 Legal Framework in Gaza IHL: Principle of distinction! Civilians are protected! Collateral damage! Always and for everyone!!!! NO exceptions Dr. Robert Frau, 2015, S

14 Legal Framework in Gaza IHL: Principle of distinction! Civilians are protected! Collateral damage! Always and for everyone!!!! NO exceptions Dr. Robert Frau, 2015, S. 40 Use of force and self-defense Use of Force Art. 2 Nr. 4 UNCh armed reprisal Armed attack Act of Aggression Art. 39 UNCh Art. 51 UNCh Peace armed conflict / IHL? Dr. Robert Frau, 2015, S. 41 Law of Occupation Law of armed conflict / IHL / Cast Lead Principle of Distinction 2012 Pillar of Defence Protection of Civilians International Humanitarian Law Dr. Robert Frau, 2015, S

15 East-Jerusalem and Golan-heights Dr. Robert Frau, 2015, S. 43 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 Dr. Robert Frau, 2015, S

16 Art. 2 Nr. 4 UN Charter All Members shall 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. Dr. Robert Frau, 2015, S. 46 Art. 51 UN Charter Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence 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. [...] Dr. Robert Frau, 2015, S. 47 Use of force and self-defense t 1 t 2 Use of Force Art. 2 Nr. 4 UNCh Peace Dr. Robert Frau, 2015, S. 48 t 3 Art. 51 UNCh armed conflict 16

17 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 Dr. Robert Frau, 2015, S. 49 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 Dr. Robert Frau, 2015, S. 50 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 Dr. Robert Frau, 2015, S

18 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 Dr. Robert Frau, 2015, S. 52 Summary Different results possible Westbank Gaza Judicial review Dr. Robert Frau, 2015, S. 53 Summary Palestine and international law? Gaza and policy Fatah/PLO/ State of Palestine Dr. Robert Frau, 2015, S

19 Questions? Dr. Robert Frau, 2015, S