Transcript NGO’s (like other actors) may use legal terminology

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
© 2006 by Abraham Bell. All rights reserved
NGO’s (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
© 2006 by Abraham Bell. All rights reserved
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)
3. 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)
© 2006 by Abraham Bell. All rights reserved
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.
© 2006 by Abraham Bell. All rights reserved
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
© 2006 by Abraham Bell. All rights reserved
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
3. 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)).
© 2006 by Abraham Bell. All rights reserved
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.
© 2006 by Abraham Bell. All rights reserved
(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.)
© 2006 by Abraham Bell. All rights reserved
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
© 2006 by Abraham Bell. All rights reserved
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
© 2006 by Abraham Bell. All rights reserved
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 ...
© 2006 by Abraham Bell. All rights reserved
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
© 2006 by Abraham Bell. All rights reserved
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.
© 2006 by Abraham Bell. All rights reserved
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.
© 2006 by Abraham Bell. All rights reserved
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 ...
© 2006 by Abraham Bell. All rights reserved
(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...
© 2006 by Abraham Bell. All rights reserved
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;
© 2006 by Abraham Bell. All rights reserved
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. ...
© 2006 by Abraham Bell. All rights reserved
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 doesn’t
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.
© 2006 by Abraham Bell. All rights reserved
Problems with Amnesty position
1. 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,
© 2006 by Abraham Bell. All rights reserved
2. 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”
© 2006 by Abraham Bell. All rights reserved
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.
© 2006 by Abraham Bell. All rights reserved