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Sunday, June 2, 2013
Manipulating International Law as Part of Anti-Israeli Lawfare

Manipulating International Law as Part of Anti-Israeli “Lawfare”
Robbie Sabel
Jerusalem Issue Briefs Vol. 13, No. 16 2 June 2013
http://jcpa.org/article/manipulating-international-law-as-part-of-anti-israeli-lawfare/

-Israel’s record of compliance with international law is remarkably strong.
In a long series of decisions, the Israeli High Court has ordered the
Israeli government, army, and security services to change policies that, in
the court’s view, were in violation of customary international law. The
court has even intervened in actual combat situations.

-Perhaps because Israel’s detractors are aware of this reality, they have
undertaken a process of manipulating international law in a way that invents
rules that are
applied only to Israel and not to other states or in other situations.

-Israel’s detractors invented a new international legal concept called
“illegal occupation.” In an armed conflict, international law clearly
permits military occupation. The UN Security Council has never declared
Israeli occupation to be illegal. U.S. occupation of Iraq after the Second
Gulf War was universally considered a legal act.

-It is often presented manipulatively as a legal axiom that the Green Line
already has the status of a legally binding border. By signing a peace
agreement, Israel and Jordan have now mutually acknowledged the termination
of the Armistice Agreement and its demarcation line. The validity of an
armistice line expires with the expiration of the armistice. Therefore,
formally, there is no longer any legal validity to the Green Line.

-By any accepted legal standard, Gaza is not under Israeli occupation.
International law requires that, for an area to be considered as under
occupation, the territory must be “actually placed under the authority of
the hostile army.” Again, there appears to be a unique definition of
“occupation” applicable only to Israel.

-The essence of any legal system is that law applies equally to all.
Devising tailor-made rules of international law for application only where
Israel is concerned undermines international law and can have an insidious
and corrosive effect on the rule of law in general.

The attempts to brand Israel as a state that violates rules of international
law have become a recurrent feature of the “lawfare” being waged against
Israel. Although no state has a perfect record in this regard, Israel’s
record of compliance with international law is remarkably strong. Israeli
courts enforce customary international law as part of the “law of the land”
and in a long series of decisions, the Israeli High Court has ordered the
Israeli government, army, and security services to change policies that, in
the court’s view, were in violation of customary international law. Perhaps
uniquely among national court systems, the court has even intervened in
actual combat situations. The Israeli government has a near-impeccable
record of complying with such court orders.

In a personal vein, this author can attest to a not-very-friendly senior
Egyptian negotiator telling him in a private conversation that although
negotiating with Israel was “hell,” he was aware that once agreement was
reached, Israel had a very good record of complying with its undertakings.

Perhaps because Israel’s detractors are aware of this reality, they have
undertaken a process of manipulating international law in a way that invents
rules that are applied only to Israel and not to other states or in other
situations. Blatant examples of such manipulation include:

UN General Assembly Resolutions

According to the UN Charter, UN General Assembly resolutions have the status
of recommendations to states and are not binding.1 They do not create
international law and no state can be “guilty” of violating such a
resolution. Such resolutions are political statements dictated by whatever
group of states can muster a majority vote on a given issue at a given time.
A prime example is UN General Assembly Resolution 194 (II) of 1948, which
proposed measures to resolve the Arab-Israeli dispute including the issue of
refugees.2 All the Arab states that were UN members at the time voted
against the resolution, as they objected to any recognition of Israel.3 The
General Assembly has subsequently readopted the part of the resolution
concerning the refugees.4

The Palestinian legal position is that this article has thus miraculously
been turned into a binding rule of international law. The legal reality is,
however, that even where the General Assembly reiterates such a resolution,
it nevertheless remains nonbinding. In the words of a leading French jurist,
“Neither is there any warrant for considering that by dint of repetition,
non-normative resolutions can be transmuted into positive law through a sort
of incantatory effect.”5 No state is on record stating that it accepts
General Assembly resolutions, as such, as binding on itself. Nevertheless,
the claim is frequently heard that Israel is “violating” General Assembly
resolutions. Apparently there is an interpretation of the UN Charter that is
applicable only to Israel.

UN Security Council Resolutions

Those anti-Israeli lawfare tacticians who are aware that UN General Assembly
resolutions are not binding try to charge Israel with violating UN Security
Council resolutions. Here again the critics ignore the explicit rules set
out in the UN Charter. Security Council resolutions are only binding where
the council, acting in accordance with Chapter VII of the charter, declares
that there has been an act of aggression by a state or that a state’s action
is a threat to world peace or security.6

The Security Council has never made such a declaration regarding Israel, nor
for that matter has it ever made such a declaration regarding Arab
aggression against Israel. Like the General Assembly, the Security Council
is a political body and its resolutions are political statements and not
legal judgments. Members of the UN have undertaken to implement Security
Council resolutions only when they are decisions adopted under Chapter VII.
Nevertheless, this stipulation of the charter has not prevented Israel from
being charged with “violating” nonbinding Security Council resolutions.

“Illegal” Military Occupation

There is a legitimate debate as to whether the West Bank is indeed the
territory of an enemy sovereign state and hence subject to the rules of
military occupation. Beyond this debate, though, the bon mot used by nearly
all anti-Israeli publicists is that Israeli military occupation is illegal
as such.7 However, in an armed conflict, international law clearly permits
military occupation. It is interesting to note that the UN Security Council
has never declared Israeli occupation to be illegal. The Security Council’s
reticence in condemning Israeli occupation as illegal is not necessarily
derived from sympathy with Israel’s policies but presumably from the
awareness that occupation is perfectly legal in case of armed conflict.8

The permanent members of the council no doubt recall the Allied occupation
of Germany and Japan after World War II, clearly legal in accordance with
the laws of armed conflict. More recently, U.S. occupation of Iraq after the
Second Gulf War was universally considered a legal act and its legality even
received explicit confirmation by the Security Council.9 Applying the laws
of military occupation to the West Bank may not have earned Israel much
public relations kudos, but it is legal and the alternative, namely,
applying Israel law, could have been deemed to be annexation. The fact that
Israel was acting legally has not, however, deterred its detractors from
attempts to attach to Israeli activity the invented new international legal
concept of “illegal occupation.”

The “Right of Return” of Arab Refugees

In accordance with international law, a state must allow its nationals into
its territory and hence it is possible to speak of a “right of return” of
nationals to the state of their nationality. International treaties, to
which Israel is a party, refer to the right, with some restrictions, of
persons to return to “their own country.”10 The major regional human rights
treaties explicitly clarify the phrase “their own country” as applying only
to nationals of the country.11 Some academicians believe such a right should
also apply to permanent residents,12 but, apparently, no state has adopted
such a position and governments interpret the rule as meaning that the right
applies only to nationals.

The manipulation of the rule as proposed by the Arab states, however, is
that there is “a well-established norm in international law and practice” –
namely, the right of all Palestinian Arab refugees to “return” to Israel,
even though they are neither nationals nor permanent residents of Israel.13

The interpretation of the phrase “Palestinian refugees” in this context has,
moreover, been extended to include all direct descendants. The Arab claim is
now that even though the person involved was born in another country as were
his parents and grandparents and they may be nationals of another state and
permanent residents of another state, nevertheless international law grants
them a right to “return” to Israel. It is estimated that under such a
definition over five million persons could claim a “right of return” to
Israel. No such interpretation of the term “refugee” or “right of return”
has been held applicable in any situation other than the Israeli-Palestinian
dispute. It should be added that Palestinian negotiators’ adherence to their
demand that Israel recognize such a “right” has made it very difficult to
reach a pragmatic solution to the problem.

“Apartheid Wall”

There is a clear attempt to smear Israel with the abhorrent phenomenon of
racism and apartheid by describing Israel’s security barrier as an
“apartheid wall.”14

Any border fence serves to separate areas and one may hope for a world with
no borders. However, for so long as Israel has to face terrorist acts, it is
legitimate for it, as it is for other states, to erect a barrier to prevent
terrorist attacks and illegal crossings.15 Those calling the fence the
“apartheid wall” make frequent reference to the advisory opinion of the
International Court of Justice on the issue.16 They fail to point out that,
in this opinion, the International Court of Justice made no reference
whatsoever to “apartheid” or analogy with “apartheid.” Furthermore, although
the court criticized the route of the “wall” as being beyond the 1949
“Green” Armistice Line,17 the court was careful not to deny Israel’s right
in principle to build such a security fence.

Apartheid has been defined as a “social and political policy of racial
segregation and discrimination enforced by white minority governments in
South Africa from 1948 to 1994.”18 A dictionary definition is “racial
segregation; specifically: a former policy of segregation and political and
economic discrimination against non-European groups in the Republic of South
Africa.”19 Among the prominent features of the South African apartheid
policies were: prohibition of marriages between white people and people of
other races;20 prohibition of extramarital sexual relations between white
and black people;21 prohibiting a black person from performing any skilled
work in urban areas except in those sections designated for black
occupation;22 prohibiting strike action by blacks;23 preventing Africans
from receiving an education that would lead them to “aspire to positions
they wouldn’t be allowed to hold in society.”24 Black students were banned
from attending major white universities.25 In all public amenities, such as
restaurants, swimming pools, and public transport, “Europeans Only” and
“Non-Europeans Only” signs were put up to enforce this legislation.26 Even
Israel’s most virulent detractors presumably must feel uncomfortable in
claiming this is the situation in Israel.

Aware that accusations of actual apartheid in modern Israel lack any
credence, the accusation is made that the very fact that Israel is a Jewish
state proves that there is an “apartheid-like” situation.27 One website
writes that “apartheid began and is rooted in the very establishment of the
colonial Jewish State.”28 The crux of the accusation against Israel lies in
the often-repeated charge that its racism “is symbolized most clearly in
Israel’s Jewish flag, anthem and state holidays.”29 The accusers have not a
word of criticism against the tens of liberal democratic states that have
Christian crosses incorporated in their flags, nor against the numerous
Muslim states with the half-crescent symbol of Islam as their state symbol.
Again, there appears to be a special legal definition of apartheid where
Israel is concerned.

Perhaps the most chilling indication of the real purpose behind the “Israel
is apartheid” campaign is revealed in one of the most active websites
promoting it. They write that among the goals of “prosecution for the crime
of apartheid” is to “enable the true majority to return to power over their
own lands, while protecting the rights of ethnic minorities.”30 In other
words, the real goal behind the apartheid campaign is the denial of the
legitimacy of the State of Israel and the determination that the only
situation the Jewish population in Israel can hope for is that of a
“protected” ethnic minority in an Arab Palestinian state.

The Legal Status of an Armistice Demarcation Line

An Israeli government may have to decide whether to adopt the 1949
Israel-Jordan Armistice Demarcation Line, known colloquially as the “Green
Line,” as the negotiating basis for a border between Israel and a future
Palestinian state. This issue, however, is often presented manipulatively as
a legal axiom that the Green Line already has the status of a legally
binding border.

The 1949 Israel-Jordan Armistice Agreement states that the Green Line is an
Armistice Demarcation Line,31 and that it should not be “interpreted as
prejudicing, in any sense, an ultimate political settlement between the
Parties.”32 The Armistice Agreement then continues explicitly to determine
that: “The Armistice Demarcation Lines…are agreed upon by the Parties
without prejudice to future territorial settlements or boundary lines or to
claims of either party relating thereto.”33 Neither Israel nor Jordan ever
designated the Green Line as their international border. Before 1967, Jordan
and other Arab states refrained from recognizing the Green Line as a border
because of their reluctance to accept the legitimacy of Israel even within
the Green Line.

By signing a peace agreement, Israel and Jordan have now mutually
acknowledged the termination of the Armistice Agreement.34 In accordance
with international law, international boundaries survive the demise of the
treaties that established them. This, however, is not true of ceasefire or
armistice-demarcation lines. The temporary nature of a ceasefire or
armistice line is such that their validity expires with the expiration of
the ceasefire or armistice. Therefore, formally, there is no longer any
legal validity to the Green Line.

UN Security Council Resolution 242, accepted by all the parties to the
dispute as an agreed framework for peace negotiations, makes no reference to
the Green Line. The Israel-Jordan Peace Treaty refers to the “boundary
definition under the Mandate” in defining the Israeli-Jordanian border;
again, no reference was made to the Green Line.35

The UN General Assembly Resolution requesting an International Court of
Justice Advisory Opinion on “Legal Consequences of Constructing a Wall in
the Occupied Palestinian Territory” made no reference to the Green Line. The
written statement of the League of Arab States addressed to the
International Court in this case refers to “the Armistice line that now
marks the boundary between Palestine and Israel.” The statement goes on,
however, to observe: “The purpose of the armistice was not to establish or
recognize any territorial, custodial or other rights, claims or interests of
any party.”36 The Jordanian judge Al‑Khasawneh, in his separate opinion,
wrote that “There is no implication that the Green Line is to be a permanent
frontier.”37 Even the final court advisory opinion, which strongly
criticizes Israel for the route of the “Wall,” explicitly states that its
advisory opinion “involves no implication that the Green Line is to be a
permanent frontier.”38

Nevertheless, the claim continues to be heard that as far as Israel is
concerned, a temporary armistice line has the legal status of a permanent
boundary.

Commissions of Inquiry

When the United States or the United Kingdom or other democratic states set
up judicial committees of inquiry on issues involving their armed forces,
world opinion tends to see it as a reflection of the democratic nature of
the states concerned. This author has failed to find instances of
international demand that such commissions must include foreign nationals.

Israel has a well-earned reputation for its independent and impartial
judiciary. Nevertheless, when Israel sets up such a judicial commission of
inquiry, it nearly automatically encounters demands that the commission must
include non-Israeli participation. Thus, apparently, there is one
international rule for Israeli commissions of inquiry and a different one
for the rest of the world.

“Occupied” Gaza

Since the 2005 Israeli unilateral withdrawal from Gaza, there has been no
Israeli control of the Gaza area. The area is administered by Hamas. There
is no Israeli military government in Gaza. The laws in Gaza, both criminal
and civilian, are Hamas laws. Hamas controls the economy, the taxes, the
courts, the police, and the prisons. It has its own, heavily armed,
militias. The Hamas government palpably was not appointed by Israel and is
not subservient to Israel. By any accepted legal standard, Gaza is not under
Israeli occupation. Israel maintains a blockade in an attempt to prevent
arms shipments from entering Gaza; this, however, does not constitute
“occupation.” Furthermore, Gaza has a land border with Egypt, over which
Israel has no control whatsoever.

International law requires that, for an area to be considered as under
occupation, the territory must be “actually placed under the authority of
the hostile army.”39 The International Court of Justice gave its opinion
that “territory is considered occupied when it is actually placed under the
authority of the hostile army, and the occupation extends only to the
territory where such authority has been established and can be exercised.”40
In a later case the court reconfirmed its position, stating that “Occupation
required the exercise of actual authority by the foreign forces” (emphasis
added).41 Even the International Committee of the Red Cross (ICRC) report on
the subject reached the conclusion that “occupation could not be established
or maintained solely through the exercise of power from beyond the
boundaries of the occupied territory; a certain number of foreign ‘boots on
the ground’ were required.”42 The ICRC report refers to “the traditional
rules about occupation with their strong emphasis on the factual basis of a
continuing presence on the ground.”43

For political reasons the PLO wants to retain Gaza’s status as “occupied”
territory.44 What is more surprising, however, is that the International
Committee of the Red Cross continues to maintain that Gaza is under Israeli
occupation.45 Again, there appears to be a unique definition of “occupation”
applicable only to Israel.

Laws of Armed Conflict

The laws of armed conflict are among the better-established rules of
international law and many of the treaties on the issue are regarded as
reflecting customary international law. Democratic states, including Israel,
incorporate these rules into the standing instructions and military manuals
of their armed forces. However, regarding Israel there has been a recent
attempt to invent two new rules:

Proportionality in combat

The law of armed conflict recognizes the requirement of proportionality in
two contexts. First, it is prohibited to attack a military target if it will
cause civilian casualties that are excessive in relation to the military
advantage to be obtained.46 Second, measures of self-defense must be
proportionate to the threat.47 However, regarding Israel a new rule seems to
have been developed: that in actual combat Israel must not use weapons that
are not proportionate to the weapons used by terrorist groups. Regarding
other states, there is no such rule; on the contrary, all armies try to
concentrate superior forces and arms against enemy positions and forces.
This universal military practice, however, does not prevent Israel from
being accused of using “disproportionate” force in actual combat situations.

Civilian casualties

Civilian casualties are, unhappily, a common feature of armed conflicts.
This is particularly true where an enemy places its weapons among civilians,
as do Hamas in Gaza and Hizbullah in Lebanon. It is a violation of the laws
of armed conflict to deliberately target civilians, and a state may be
liable for reckless or negligent targeting. However, as far as Israel is
concerned, any enemy civilian casualties are presented as the result of a
“war crime,” even though it is acknowledged that Israel takes immense steps
to try and prevent and minimize civilian casualties.48

Self-Defense Only against Attacks from States

Perhaps the most flagrant attempt to manipulate international law against
Israel was the International Court’s majority decision that Israel had no
right of self-defense against terrorists operating from the territories
under control of the Palestinian Authority. The court decided that it would
not even examine whether Israel’s security barrier was a legitimate act of
self-defense against acts of terrorism. The court based its decision on its
interpretation of Article 51 of the UN Charter, which recognizes the
“inherent right of individual or collective self-defense if an armed attack
occurs against a Member of the United Nations.” The court interpreted
Article 51 as requiring that an attack must emanate from a foreign state,
although there is no mention in the UN Charter of such a requirement.

The court consequently brusquely determined that “Article 51 of the Charter
has no relevance in this case.”49 Its conclusion was that Israel had no
right of self-defense whatsoever against terrorist acts emanating from
territories under the control of the Palestinian Authority. The British,
Dutch, and U.S. judges on the court were the only ones who refused to concur
with this startling ruling.50 This strange dictum of the court has not been
followed by other states, and one academic writer notes that “State practice
strongly suggests that the international community has recognized a right to
use force in self-defense targeting nonstate actors in foreign territory to
the extent that the foreign state cannot be relied on to prevent or suppress
terrorist activities.”51

Conclusion

Israel has a strong record of complying with international law and its
judicial system ensures that it will continue to do so. The essence of any
legal system, however, is that law applies equally to all. This principle is
being undermined by the attempts of Israel’s foes and detractors to
manipulate international law as part of their lawfare against Israel.
Devising tailor-made rules of international law for application only where
Israel is concerned undermines international law and can have an insidious
and corrosive effect on the rule of law in general.

* * *

Notes

1 “Except for certain internal matters, such as the budget, the Assembly
cannot bind its members. It is not a legislature in that sense, and its
resolutions are purely recommendatory.” “The Assembly is essentially a
debating chamber.” Malcolm Shaw, International Law, sixth edition (2008), p.
1212.
2 UNGA Resolution 194 (III), UN GAOR, 3rd session, part I, 1948,
Resolutions, pp. 21-24.
3 Israel was not a member of the UN at the time.
4 Article 11 of UNGA Resolution 194 (III), UN GAOR, 3rd session, part I,
1948, Resolutions, pp. 21-24.
5 Prosper Weil, “Towards Relative Normativity in International Law,” 77
American Journal of International Law 413 (1983).
6 “Most Council resolutions contain only exhortations or recommendations.”
“A Chapter VII resolution has therefore become shorthand for a legally
binding measure.” Anthony Aust, Handbook of International Law 2005 (2009),
p. 214.
7 For example, “Europe is ultimately taking part in the subjugation of the
Palestinians by funding Israel’s illegal occupation.”
http://www.counterpunch.org/2013/03/13/funding-and-denouncing-israeli-occupation
8 In a case submitted by the PLO against the French company that built the
Jerusalem light rail, the French Court of Appeal recently reconfirmed that
occupation is legal.
http://fr.slideshare.net/fullscreen/yohanntaieb3/decision-de-lacourdappel/1;
:
http://www.israel-flash.com/2013/04/la-cour-dappel-de-versailles-olp-c-alstom-et-veolia-conclut-que-loccupation-par-israel-nest-pas-illegale/#ixzz2QWVjg6eB
9 S/RES/1483 (2003).
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N03/368/53/PDF/N0336853.pdf?OpenElement
10 Article 5-(d)(ii), Convention for the Elimination of All Forms of Racial
Discrimination 1965, entered into force 4 January 1969, 660 UNTS 195;
Article 12(4), International Convention on Civil and Political Rights 1966,
entered into force 23 March 1976, 999 UNTS 171.
11 American Convention on Human Rights 1969, entered into force 18 July
1978, 9 ILM 673 (1970); European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950, entered into force 3 September 1953,
213 UNTS 221; Protocol No. 4 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1963, entered into force 2 May
1968, ETS 46.That the right of return is restricted to nationals is also
reflected in the “Declaration of Principles of International Law on Mass
Expulsion,” 62 International Law Association Conference Report 13 (ILA
1986), Articles 1, 2, 3, 7.
12 See, e.g., Oriol Casanovas, “La Protection Internationale des Réfugiés et
des Personnes Déplacées dans les Conflits Armés,” 306 Recueil des Cours 2003
(2005) 86.
13 Refugees Background, Palestine Liberation Organization, Negotiations
Affairs Department, Permanent Status Issues.
http://www.nad-plo.org/permanent/refugees.html
14 Those criticizing the construction tend to use the word “wall” and call
it a “separation wall” though in fact only a tiny fraction of the total
length of the barrier (less than 3 percent) is actually a thirty-feet-high
concrete wall. One organization has published a three-hundred-page treatise
“proving” that Israel is applying apartheid. Occupation, Colonialism,
Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian
territories under international law, Democracy and Governance Programme of
the Human Sciences Research Council of South Africa.
http://www.hsrc.ac.za/Media_Release-378.phtml
15 For examples of other democratic states that have built similar fences
see: http://www.jewishvirtuallibrary.org/jsource/Peace/fence.html
16 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, 9 July 2004.
17 See this author’s critique of the court’s ruling on the issue, R. Sabel,
“The International Court of Justice Decision on the Separation Barrier and
the Green Line,” Israel Law Review 38, 1-2 (2005), p. 316.
18 http://www.africanaencyclopedia.com/apartheid/apartheid.html
The Statute of the International Criminal Court defines apartheid as one of
the crimes against humanity, being “inhumane acts….committed in the context
of an institutionalized regime of systematic oppression and domination by
one racial group over any other racial group or groups and committed with
the intention of maintaining that regime” (Article VII of the Statute of the
ICC).
19 http://www.merriam-webster.com/dictionary/apartheid
20 Prohibition of Mixed Marriages Act, Act No. 55 of 1949.
21 South African Immorality Amendment Act, Act No. 21 of 1950; amended in
1957 (Act 23).
22 South African Bantu Building Workers Act, Act No. 27 of 1951.
23 South African Native Labour (Settlement of Disputes) Act of 1953.
24 South African Bantu Education Act, Act No. 47 of 1953.
25 South African Extension of University Education Act, Act No. 45 of 1959.
26 South African Reservation of Separate Amenities Act, Act No. 49 of 1953.
27 “Israel has made itself into a white colonial settler state, mimicking
South Africa before the end of apartheid.” Lisa Rofel, Anthropology, UC
Santa Cruz. http://www.arabicnews.com/ansub/Daily/Day/060609/2006060907.html
28 The Palestinian grassroots Anti-Apartheid Wall Campaign.
http://www.stopthewall.org/downloads/pdf/4PageFactSheetOctober9.pdf
29 Daryl J. Glaser, “Zionism and Apartheid: a moral comparison,” Ethnic and
Racial Studies 26, 3 (2003), pp. 403-421,403, 408.
30
http://www.geocities.com/savepalestinenow/internationallaw/studyguides/sgil3k.htm
31 1949 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 656
UNTS 304, Article III, paragraph 2.
32 Article VI, paragraph 8, ibid.
33 Article VI, paragraph 9, ibid. Article 5(2) of the Israeli-Egyptian
Armistice Agreement has an even more explicit disclaimer, which states: “it
is not to be construed in any sense as a political or territorial boundary
and is delineated without prejudice to rights, claims and positions of
either Party to the Armistice as regards ultimate settlement of the
Palestine question.”
34 While the Israel-Jordan Peace Agreement does not explicitly state that it
supersedes the Armistice Agreement, the two agreements are patently
incompatible.
35 Article 3(1), 1994 Treaty of Peace between the State of Israel and the
Hashemite Kingdom of Jordan. Annex I (a) Article 2 (A)(7) of the treaty
provides that the section of the boundary separating Jordan from the West
Bank is marked on the map as an “ administrative boundary between Jordan and
the territory which came under Israeli Military government control in 1967.”
36 Written Statement of the League of Arab States, January 2004, paragraphs
1.2, 5.15.
37 Separate Opinion, Judge Al‑Khasawneh, paragraphs 10, 11.
38 C/2004/03, paragraph 35.
39 Article 42 of the 1907 Hague Regulations.
40 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, 9 July 2004, paragraph 78.
41 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda), decision of 19 December 2005, Para.173.
42 ICRC, Occupation and Other Forms of Administration of Foreign Territory,
Report prepared and edited by Tristan Ferraro Legal adviser, ICRC, Summary,
Article 1. http://www.icrc.org/eng/resources/documents/publication/p4094.htm
43 ICRC,Occupation and Other Forms of Administration of Foreign Territory,
Report prepared and edited by Tristan Ferraro Legal adviser, ICRC, p. 48.
http://www.icrc.org/eng/resources/documents/publication/p4094.htm
44 See on this issue Dore Gold, “Legal Acrobatics: The Palestinian Claim
that Gaza is Still ‘Occupied’ Even After Israel Withdraws.”
http://www.icjs-online.org/indarch.php?eid=490&ICJS=2394&article=536
45 See, e.g.,
http://www.icrc.org/eng/where-we-work/middle-east/israel-occupied-territories/index.jsp
46 Article 51 (5) (b) of 1977 Additional Protocol I to the Geneva
Conventions of 12 August 1949 and Relating to the Protection of Victims of
International Armed Conflicts.
47 The Caroline Case, J. Moore, Digest of International Law 2, p. 412
(1906).
48 See, e.g., the Report of the UN Fact Finding Mission on the Gaza Conflict
(A/HRC/12/48) (2009) The “Goldstone” Report.
49 I CJ Advisory Opinion, Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, 9 July 2004, paragraph 139.
50 Separate opinions of Judges Higgins, Buergenthal, and Owada, ICJ Advisory
Opinion, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, 9 July 2004.
51 Kimberly N. Trapp, “Back to Basics: Necessity, Proportionality and the
Right of Self-Defence Against Non-State Terrorist Actors,”56 International
and Comparative Law Quarterly, pp. 141, 156 (2007).
===============================

About Robbie Sabel

Robbie Sabel is professor of international law at the Hebrew University of
Jerusalem and former legal adviser to the Israel Ministry of Foreign
Affairs. Among his publications: Procedure in International Law (Cambridge
University Press, 2nd ed., 2006) (awarded the Certificate of Merit of the
American Society of International Law); International Law (the Sacher
Institute of the Law Faculty of the Hebrew University of Jerusalem, 2nd ed.,
2010).

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