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International legal terminology, politics and human rights

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NGO's (like other actors) may use legal terminology ... Control of Palestinian Authority by Hamas does not relieve states of these alleged duties. ... – PowerPoint PPT presentation

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Title: International legal terminology, politics and human rights


1
International legal terminology, politics and
human rights
  • By Dr. Avi Bell, Faculty of Law,Bar Ilan
    University
  • Presented at the NGO Monitor Conference, Begin
    Centre, Jerusalem
  • June 14, 2006

2
NGOs (like other actors) may use legal
terminology tendentiously and inaccurately to
  • create misimpression of certainty where there is
    factual uncertainty
  • create the misimpression that the law requires
    supporting a particular political agenda
  • support political positions that may even
    undermine human rights

3
Three examples
  • 1. Amnesty International public statement
    Israel Must End Unlawful Killings of Palestinians
    and Stop Reckless Shelling (AI Index MDE
    5/049/2006, 12 June 2006)
  • 2. Amnesty International report Without
    Distinction Attacks On Civilians by Palestinian
    Armed Groups (AI Index MDE 02/003/2002, July
    2002)
  • Amnesty International Calls for International
    Action to Prevent Human Rights Deterioration in
    the West Bank and Gaza Strip (AI Index MDE
    15/035/2006, 25 April 2006)

4
Example 1 Israel Must End Unlawful Killings of
Palestinians and Stop Reckless Shelling
  • Amnesty International is calling on Israel to end
    immediately its reckless shelling and air strikes
    against the Gaza Strip, ... In the latest such
    attack on the afternoon of 9 June 2006, seven
    members of the same Palestinian family were
    killed and ten of other civilians were injured
    when Israeli forces fired several artillery
    shells at a beach in the North of the Gaza Strip.
  • ... The seven members of the Ghalia family were
    the most recent among a growing number of victims
    of increasingly frequent and disproportionate
    Israeli attacks against the Gaza Strip.
  • ... Israeli authorities have expressed regret for
    some of the killings of Palestinian civilians -
    usually in cases which attract international
    media attention - claiming they occurred as a
    result of mistakes. Yet the Israeli authorities,
    who are responsible for the conduct of their
    armed forces, are fully aware that the use of
    certain weapons and munitions in such situations
    invariably results in the killing or injuring of
    bystanders, including children.
  • Many killings of Palestinians in reckless
    shootings, tank shelling and air strikes by
    Israeli forces have been unlawful. They have been
    carried out by Israeli forces pursuant to
    government policy, evidenced by the knowledge and
    approval of government authorities who are fully
    aware of the consequences of such practices.
  • Expressions of regret by the Israeli authorities
    ring hollow in the face of their continued
    failure to change their forces' practices and to
    put in place the necessary safeguards to prevent
    such killings.

5
Rules of Distinction and Proportionality(First
Protocol Additional to Geneva Conventions of
1949) (1977)
  • Distinction
  • 51(2) - The civilian population as such, as well
    as individual civilians, shall not be the object
    of attack.
  • Proportionality
  • 51(5) - an attack is disproportionate if it is
    expected to cause incidental loss of civilian
    life, injury to civilians, damage to civilian
    objects, or a combination thereof, which would be
    excessive in relation to the concrete and direct
    military advantage anticipated

6
Problems with Amnesty Statement
  • 1. Assumes facts that are in controversy
  • 2. Wrongly states that rule of proportionality
    violated if bystanders killed by Israeli weaponry
  • Fails to note distinction is violated by targets
    (here, the Palestinians) when they use civilians
    to attempt to shield military objects from attack
    (51(7)).

7
Example 2 Without Distinction Attacks On
Civilians by Palestinian Armed Groups
  • Problems with Amnesty Report
  • Selective caution in use of difficult terms.
    Very cautious about using the word terrorism
    against Palestinians evince no caution in
    applying legal term of occupied against Israel
  • Selective caution in establishing legal standard.
    Amnesty not certain whether to apply standard of
    laws of war to Palestinian targeting actions
    however, it is very certain that Israel cannot
    use laws of war in targeting.

8
(a) Terminology
  • Terrorism, generally
  • Duties on states to
  • prevent funding of terrorism and commission of
    terrorist acts
  • deny safe haven to terrorists
  • bring terrorists to justice
  • not support terrorism by organizing, instigating,
    assisting, participating or acquiescing in it
  • (in addition to other duties related to
    terrorism, eg, duty not to target civilians in
    military acts, not to attempt genocide, etc.)

9
Definition in International Convention for the
Suppression of the Financing of Terrorism (1999)
(150 ratifications )
  • Any person commits an offence within the meaning
    of this Convention if that person ... funds ...
    (a) An act which constitutes an offence within
    the scope of and as defined in one of the
    treaties listed in the annex e.g., Convention
    for the Suppression of Unlawful Seizure of
    Aircraft or (b) Any other act intended to cause
    death or serious bodily injury to a civilian, or
    to any other person not taking an active part in
    the hostilities in a situation of armed conflict,
    when the purpose of such act, by its nature or
    context, is to intimidate a population, or to
    compel a Government or an international
    organization to do or to abstain from doing any
    act

10
Duty to Combat Terrorism
  • UN Security Council Resolution 1373 (28 September
    2001)
  • Acting under Chapter VII of the Charter of the
    United Nations,
  • 1. Decides that all States shall (a) Prevent and
    suppress the financing of terrorist acts ...
  • 2. Decides also that all States shall (a)
    Refrain from providing any form of support,
    active or passive, to entities or persons
    involved in terrorist acts, including by ...
    eliminating the supply of weapons to terrorists
    ... (c) Deny safe haven to those who finance,
    plan, support, or commit terrorist acts, or
    provide safe havens ...
  • 3. Calls upon all States to ... (d) Become
    parties as soon as possible to the relevant
    international conventions and protocols relating
    to terrorism, including the International
    Convention for the Suppression of the Financing
    of Terrorism of 9 December 1999

11
Amnesty International on Terrorism
  • Page 7 of Without Distinction
  • Terrorism - this term is commonly used to
    describe violent acts by armed groups,
    particularly those in which civilians are
    targeted. Amnesty International does not use the
    term because it does not have an internationally
    agreed definition ...

12
Occupation, generally
  • Special duties apply to states occupying foreign
    territory under Fourth Geneva Convention of 1949
    and Regulations annexed to Fourth Hague
    Convention of 1907, such as
  • maintaining public order and safety
  • ensuring food and medical supplies of population

13
Fourth Geneva Convention of 1949
  • Article 2 ... 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.... The
    Convention shall also apply to all cases of
    partial or total occupation of the territory of a
    High Contracting Party ...
  • Article 6 The present Convention shall apply
    from the outset of any conflict or occupation
    mentioned in Article 2. In the territory of
    Parties to the conflict, the application of the
    present Convention shall cease on the general
    close of military operations. In the case of
    occupied territory, the application of the
    present Convention shall cease one year after the
    general close of military operations however,
    the Occupying Power shall be bound, for the
    duration of the occupation, to the extent that
    such Power exercises the functions of government
    in such territory, by specific provisions ...
  • Article 4 Persons protected by the Convention
    are those who, at a given moment and in any
    manner whatsoever, find themselves, in case of a
    conflict or occupation, in the hands of a Party
    to the conflict or Occupying Power of which they
    are not nationals.

14
Regulations annexed to Fourth Hague Convention of
1907
  • Art. 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.
  • Art. 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.

15
Amnesty International on Occupation
  • Page 3 of Without Distinction
  • The West Bank and the Gaza Strip are territories
    subject to the 1949 Fourth Geneva Convention
    Relative to the Protection of Civilian Persons in
    Time of War which applies to situations of
    occupation. This position is supported by the
    International Committee of the Red Cross (ICRC)
    and by numerous resolutions of the United Nations
    Security Council. The Israeli government
    maintains that it does not regard the Fourth
    Geneva Convention as legally applying to the West
    Bank and Gaza Strip ...

16
(b) Legal Standard
May Sides Invoke Law of War in Targeting? (part
I)
  • Maybe Palestinians Can
  • Pages 5, 21, 24 of Without Distinction
  • The attacks against civilians by Palestinian
    armed groups are widespread, systematic and in
    pursuit of an explicit policy to attack
    civilians.... They may constitute war crimes,
    depending on the legal characterisation of the
    hostilities and interpretation of the status of
    Palestinian armed groups and fighters under
    international humanitarian law.... Amnesty
    International acknowledges that there is
    considerable debate as to whether the violence in
    Israel and the Occupied Territories has reached a
    scale and intensity whereby the rules of
    international humanitarian law on the conduct of
    hostilities in international armed conflicts
    apply, and if so to what extent... If the
    current situation is characterized as one to
    which the rules on the conduct of hostilities in
    international armed conflict apply, attacks on
    civilians would violate international
    humanitarian law and would constitute war
    crimes...

17
May Sides Invoke Law of War in Targeting? (part
II)
  • But Israel Can Definitely Not
  • Page 19 of Without Distinction
  • Israeli forces have assassinated Palestinians
    alleged to be responsible for attacks on Israeli
    civilians and soldiers, in non-combat situations
    when the people could have been arrested such
    killings constitute extra-judicial executions and
    violate the right to life

18
Example 3 Amnesty International Calls for
International Action to Prevent Human Rights
Deterioration in the West Bank and Gaza Strip
  • Amnesty International is calling on the
    governments of states who are High Contracting
    Parties to the Fourth Geneva Convention ... to
    prevent a further dramatic worsening of the human
    rights situation of Palestinians in the West Bank
    and Gaza Strip. The organization is concerned
    that the recent decisions by the European Union
    (EU) and the United States (US) to sever
    financial support to the Palestinian Authority
    (PA) could have very serious consequences
    impacting on the health, education and other
    economic and social rights of Palestinians living
    under Israeli occupation. ... all High
    Contracting Parties to the Geneva Conventions ...
    have an obligation ... to ensure the protection
    of the Palestinian population of the West Bank
    and Gaza Strip, whose conditions are now expected
    to deteriorate significantly because of the very
    same governments decisions to cut funding to the
    PA ... The EU and the USA must take measures to
    ensure their decision to stop funding does not
    adversely impact on human rights. They must
    ensure that emergency assistance essential to
    fulfilling fundamental human rights is never used
    as a bargaining tool to further political goals.
  • ... Also, states parties to the International
    Covenant on Economic, Social and Cultural Rights
    and which are in a position to provide
    resources to ensure minimum essential levels of
    health care, clean water, education, food and
    housing are obliged to do so. ...

19
Summary of Amnesty International Legal Position
  • Gaza is occupied territory under Fourth Geneva
    Convention
  • All parties to Fourth Geneva Convention must
    provide funding to self-governing authority in
    occupied territory because otherwise economic
    conditions might worsen, impacting health and
    education
  • All parties to International Covenant on
    Economic, Social and Cultural Rights must provide
    international aid to any state or territory whose
    economy doesnt ensure minimum levels of
    health care, clean water, education, food and
    housing.
  • Control of Palestinian Authority by Hamas does
    not relieve states of these alleged duties.

20
Problems with Amnesty position
  • Security Council Resolution 1373 appears to bar
    all state support for the Palestinian Authority
  • Requires all states to
  • Freeze without delay funds and other financial
    assets or economic resources of persons who
    commit, or attempt to commit, terrorist acts or
    participate in or facilitate the commission of
    terrorist acts ...
  • Prohibit their nationals or any persons and
    entities within their territories from making any
    funds, financial assets or economic resources or
    financial or other related services available,
    directly or indirectly, for the benefit of
    persons who commit or attempt to commit or
    facilitate or participate in the commission of
    terrorist acts, of entities owned or controlled,
    directly or indirectly, by such persons and of
    persons and entities acting on behalf of or at
    the direction of such persons. ...
  • Refrain from providing any form of support,
    active or passive, to entities or persons
    involved in terrorist acts,

21
  • Doubtful that the Fourth Geneva Convention
    applies to Gaza today
  • Israel does not exercise the functions of
    government in such territory.
  • Additionally, Gaza may not be territory of High
    Contracting Party

22
  • 3. There is no serious support for argument
    that Fourth Geneva Convention or International
    Covenant on Economic, Social and Cultural Rights
    require payment of international financial aid by
    non-governing states.
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