Prolonged Occupation and International Law: Israel and Palestine

Description

This volume arose from a desire to advance academic discourse and reflection on the broader subject of prolonged occupation, in light of the permanent character, and resulting implications of, the 55 year Israeli administration of the Palestinian Territories. The roots of the volume lie in a 2018 academic conference on "The Threshold from Occupation to Annexation". The present volume moves that discussion forward, updating and widening the range of topics addressed. The result is a collection of thought-provoking contributions by a wide range of scholars on the challenging and critical issue of prolonged occupation and international law, ranging from colonialism, apartheid, the illegality of occupation and potential international criminal liability. "This volume reminds us forcefully that international law is alive and vibrant and can, with imagination and in concert with social movements, move us forward in the struggle for justice in Palestine, and elsewhere. It is a signal achievement." George Bisharat, The Honorable Raymond L. Sullivan Professor of Law, University of California Hastings College of the Law. "Into today's "deepening environment of political inertia" (co-editor Nada Kiswanson) comes this searing collection of essays examining international legal frameworks and legal responsibilities closely and tangibly informed by the painful realities of Palestinian life under prolonged Israeli occupation. The editors, authors, convenors and everyone else involved are to be congratulated on producing a volume that will surely become a seminal resource for anyone serious about studying what Palestine has to teach us about international law." Lynn Welchman, Professor, School of Law, SOAS University of London. "Scholarly and comprehensive, this impressive collection of essays by renowned experts...offers a tour d'horizon of the fundamental legal issues raised by Israel's prolonged occupation of Palestine as well as potential remedies that can confront the illegalities." William A. Schabas, Professor of International Law, School of Law, Middlesex University. Front Cover Half Title Series Information Title Page Copyright Page Contents Foreword Acknowledgements Abbreviations Notes on Contributors Introduction Part 1 Legal Frameworks and Characterisations Chapter 1 Israel’s Unlawful 1967 Invasion of Palestine 1 Inaction at the UN Security Council 2 No Support for Israel’s Justificatory Claims 3 Israel’s Obfuscation 4 Invasion with Embellishments 5 UN General Assembly Refuses to Back Israel 6 Occupation of the Gaza Strip and the West Bank 7 Israel’s Motivation for Aggression 8 A Tale of Changing Stories 9 Conclusion Chapter 2 Out of Time: On the (Il)legality of Israel’s Prolonged Occupation of the West Bank 1 Duration of Occupation under International Humanitarian Law 2 Duration of Occupation under the Jus Ad Bellum 3 Responses to Breaches of the Principle of Temporariness 4 Conclusion Acknowledgement Chapter 3 The Occupation of Palestine from a TWAIL Lens 1 Third World Approaches to International Law 2 How International Law Operates a ‘System of Exclusion or Oppression’ in Palestine 2.1 Using UNGA Resolution 181 to Deny Palestinian Self-determination 2.2 A Permanent Occupation of the Palestinian Territory 2.3 Israel’s Manufactured Reversioner Rule 3 How the Israeli High Court of Justice Maintains Oppression over Palestinians to Facilitate Settler Colonisation 4 How International Law Enables the Structural Domination and Exploitation of the Palestinian People 5 Conclusion Chapter 4 Reducing the Friction: A Functional Analysis of the Transformed Occupation of the Gaza Strip 1 Israel’s Continued Control of the Gaza Strip 1.1 The Imposition of the Closure on the Gaza Strip 1.2 Israel’s Control over Land Crossings 1.3 Israel’s “Naval Blockade” on the Gaza Strip 2 The Academic Debate over the Status of the Gaza Strip: Diverging Positions and the Need for a Functional Approach 2.1 The Existing Academic Debate 2.2 A Functional Approach to the Legal Status of the Gaza Strip 3 Israel’s Supreme Court on the Status of the Gaza Strip 4 Closure, Siege, or Occupation: From the Policing to the Belligerency Model 5 Conclusion Acknowledgement Chapter 5 Apartheid and International Law in Palestine 1 Framing Israeli Apartheid 2 Palestinian Legal Activism and Anti-apartheid Analysis 3 The Israeli Apartheid Regime 4 Confronting Israeli Apartheid under International Law 5 Conclusion Chapter 6 The Occupation–Colonialism Continuum: Impact on Transitional Justice in Palestine/Israel 1 Backdrop: Shifting Interpretations of the Impasse 2 Occupation/Colonialism: The Legalities of Illegality 3 Colonialism: A Fuzzy Framework? 4 Occupation–Colonialism: Views from the Field 5 Conclusion Chapter 7 Israel’s Military Justice System as an Annexationist Tool 1 Establishment, Scope and Jurisdiction of the Military Courts 1.1 The Scope of the Military Courts 1.2 Impartiality, Legality and the Rule against Retroactive Effect 2 How Israel uses the Military Courts against Palestinian Civilians 2.1 The Use of Torture and Other Coercive Practices 2.2 Prosecuting Minors 2.3 Mass Prosecution of Minor Offenses 2.4 Presumption of Innocence 2.5 Administrative Detention and Right to Information 3 Conclusion Chapter 8 Adaptation under Occupation: Climate Change Vulnerability 1 Masafer Yatta – the South Hebron Hills 2 Climate Change Adaptation Planning in the Occupied Palestinian Territory 2.1 The Dual Strike 2.2 Climate Change and Geopolitical Vulnerabilities 2.3 Gender-Differentiated Vulnerability to Climate Change 3 Frustration of Adaptability Actions 3.1 Discriminatory Water Allocation 3.2 Loss of Vegetation Cover 3.3 Restrictions on Construction and the Constant Threat of Demolitions 3.4 Settler Violence 4 Protection of Palestinian Resources and Environment in International Law 4.1 International Environmental Law: The Paris Agreement 5 Conclusion Acknowledgement Part 2 Legal Responsibilities and Accountability Chapter 9 Israel’s Impunity from Peremptory Norms 1 Israel’s Violation of Peremptory Norms 1.1 The Crime of Aggression 1.2 Crimes against Humanity 1.3 The Basic Rules of Humanitarian Law 1.4 Torture 1.5 Racial Discrimination and Apartheid 1.6 Self-determination 2 The Response of the International Community of Nations to Apartheid in South Africa 2.1 The Sanctions of Non-recognition and Non-rendering of Aid 2.1.1 Withholding of Aid and Assistance for the Maintenance of Apartheid 2.1.2 Non-recognition 3 Is It Fair to Use the South African Precedent as a Guide to the Response of the International Community to Israel’s Violations of Peremptory Norms? 4 The Response of the International Community to Israel’s Crimes 4.1 The United Nations 4.2 States 5 Conclusion Chapter 10 Third State Responsibility versus Sanctions in Regulating Trade with Illegal Settlements at the EU 1 Settlements as Breaches of Jus Cogens Norms 1.1 The Right to Self-determination and Prohibition on the Acquisition of Territory by Force 1.2 Fundamental Norms of International Humanitarian Law 1.3 Prohibition of Apartheid 2 Trade and the Duties of Non-recognition and Non-assistance 2.1 Trade with Settlements as a Violation of the Duty of Non-recognition 2.2 Trade as a Violation of the Duty of Non-assistance 3 The Duties of Non-recognition and Non-assistance versus Sanctions 4 Settlement Trade and EU Law 4.1 The Deceptive Approach of the European Commission toward Settlement Trade: The Examples of Occupied Palestine and Western Sahara 4.1.1 Data on Settlement Trade with the European Block 4.1.2 The “Cosmetic” Measures of the European Commission on Settlement Trade 4.2 Prohibiting Settlement Trade under EU Law: A Trade Measure in Favour of Occupied Peoples and Not an Economic Sanction against Occupying States 4.3 The European Commission’s Decision to Register the European Citizens’ Initiative on Settlement Trade: The Way forward for the Adoption of a Trade Measure 5 Conclusion Chapter 11 Palestine, Israel, and the International Criminal Court 1 Developments in the Situation in Palestine at the ICC 2 Israel’s Unwillingness and Inability to Investigate and Prosecute Israelis 2.1 Israel’s Supreme Court 2.1.1 Non-enforceability and Non-justiciability 2.1.2 Government-Accommodating Interpretations 2.2 The Israeli Military Justice System 2.2.1 Constricting Investigation Policies 2.2.2 Multiple and Contradictory Roles of the Military Advocate General 2.2.3 Insufficient Civilian Oversight 2.2.4 Undue Delay 2.2.5 Inadequate Investigations 3 Rome Statute Crimes Relevant to Israel’s Occupation 4 Conclusion Chapter 12 Private Sector Responsibility for the Treatment of Palestinian Prisoners and Detainees in Light of the Law and Policy of the International Criminal Court 1 Introduction 2 Treatment of Palestinian Detainees and Prisoners 3 Involvement of Corporate Entities 4 Corporate Complicity and International Criminal Law 5 Conclusion Chapter 13 Prosecuting Systematic Economic Exploitation of Occupied Territory as Pillage 1 Pillaging During Armed Conflict and Occupation 2 Historical Background 3 Limits on Property Use under Intenational Humanitarian Law 3.1 Public Moveable Property 3.2 Mixed Public Property 4 Prosecuting Systematic Economic Exploitation as Pillage 4.1 The Nuremberg Strand 4.2 Pillaging for “Private or Personal Use” 4.2.1 Prosecutor v Katanga 4.2.2 Prosecutor v Jean-Pierre Bemba Gombo 4.3 Consent 5 Conclusion Chapter 14 Criminal Jurisdiction under Occupation: The Oslo Accords and the ICC 1 The Meaning of Jurisdiction in International Law 1.1 Sovereignty as a Reliable Indicator of Jurisdiction during Belligerent Occupation 2 The Source of the International Criminal Court’s Jurisdiction 2.1 The Nemo Dat Quod non Habet Maxim 3 The Oslo Accords and the ICC 4 The Oslo Accords’ Compliance with International Law 4.1 Self-Determination 4.1.1 The Oslo Accords Shall Not Bar the ICC from Exercising Jurisdiction over Israeli Nationals 4.2 The Oslo Accords Incompatibility with Palestine’s International Obligations 5 Conclusion Acknowledgements Chapter 15 Domination, Transformation, and Annexation via Utilities 1 Continuity of Life during Occupation 2 Water: Making Settlements Viable 3 Electricity: Stolen Autonomy, De-development and Subjugation 4 Control and Domination via Telecommunications 5 Conclusion Chapter 16 Palestinian Refugees and International Law 1 The Nakba Reality 1.1 The Israeli Response to Palestinian Refugees and the Nakba 2 The Right to Return or to Receive Compensation 2.1 The Relevance and Implementation of UN General Assembly Resolution 194 (III) 3 International Meetings to Make Solutions Possible 4 UN, UNRWA and Its Responsibility to Protect 4.1 The Upgrade of the UNRWA Protection Programme 4.2 Rights of Stateless Persons and Human Rights Standards Applied to Palestinians 4.3 The UNRWA Dilemma 4.4 The Politics Undermining the UNRWA 5 New Framework for Resolution of the Humanitarian Crisis 5.1 Breaking the Political Deadlock 6 Conclusion Bibliography Index Back Cover