Transcript ISRAEL INFRINGES INTERNATIONAL TREATIES

ISRAEL: INTERNATIONAL CRIMES OF
AGGRESSION AND TERRORISM,
AND ITS INCOMPLIANCE TO
INTERNATIONAL TREATIES
Dr. Wisnu Aryo Dewanto, S.H., LL.M., LL.M.
Disampaikan dalam Seminar Internasional “Israel State Terrorism: Challenges and Opportunities for
Palestine and Moslem Countries World Peace and Order” yang diselenggarakan oleh Fakultas
Hukum Universitas Islam Indonesia, Yogyakarta, pada tanggal 26 Januari 2013
NO ENDING CONFLICT [YET]
• SIX DAYS WAR  ISRAEL WON A MAJOR LAND
WAR AND TOOK CONTROL OF THE GAZA STRIP,
SINAI PENINSULA FROM EGYPT, THE WEST BANK
AND EAST OF JURESALEM FROM JORDAN, AND
THE GOLAN HEIGHTS FROM SYRIA
• RECOGNITION
• LEGAL INTERPRETATION
• JURISDICTION OF THE ICJ
• THE LEGAL BINDING OF ADVISORY OPINIONS
• INTERNATIONAL POLITIC SURROUNDING
• THOMAS BUERGHENTAL’S DISSENTING OPINIONS
 ISRAEL’S RIGHT OF SELF DEFENSE
HOW A STATE IS IN BREACH OF AN
INTERNATIONAL TREATY
• FIRST, IF THE STATE RATIFIES THE TREATY
• SECOND, THE STATE DOES NOT HAVE TO
RATIFY IT BUT THE TREATY IS REGARDED
AS CUSTOMARY INTERNATIONAL LAW
BECAUSE IT PROVIDES AN OBLIGATIO
ERGA OMNES, SUCH AS GENEVA
CONVENTION 1949 AND THE HAGUE
CONVENTION 1907
CORE ISSUES OF
ISRAEL – PALESTINE
• THE LEGALITY OF THE
ISRAELI SETTLEMENTS IN
THE PALESTINIAN
TERRITORIES
• ANNEXATION OF EAST
JURESALEM
• THE ISRAELI’S WEST BANK
BARRIER
• THE BORDERS
• THE LEGAL STATUS OF THE
PALESTINIAN REFUGEES
FROM THE 1948 ARABISRAELI WAR
THE LEGALITY OF THE
ISRAELI SETTLEMENTS
• IT IS ILLEGAL UNDER INTERNATIONAL LAW
AND IS IN BREACH OF:
– ARTICLE 49 OF THE 4th GENEVA CONVENTION
RELATIVE TO THE LEGALITY OF POPULATION
TRANSFER, WHERE ISRAEL TRANSFERRED ITS
OWN POPULATION INTO THE TERRITORIES OF
PALESTINE
– THE UN GENERAL ASSEMBLY RESOLUTION 2625
(XXV) OF 1970 THAT AFFIRMED: “The illegality of
the acquisition of territory resulting from the threat or
use of force and affirmed the right of peoples in nonself-governing territories to self-determination.”
ISRAEL AND THE ACTS
OF AGGRESSION
• AGGRESSION BY A STATE AGAINST ANOTHER
STATE IN BREACH OF INTERNATIONAL TREATIES
– THE 1928 PARIS PACT: IF A STATE ENGAGED IN
AGGRESSION IT COMMITTED AN INTERNATIONAL
WRONGFUL ACT ENTAILING STATE RESPONSIBILITY
– THE LONDON AGREEMENT 8 AUGUST 1945 ESTABLISHING
THE INTERNATIONAL MILITARY TRIBUNAL (IMT) STATED
THAT “AGGRESSION WAS AN INTERNATIONAL CRIME
INVOLVING INDIVIDUAL CRIMINAL LIABILITY.”
• ARTICLE 6(a) PROVIDED: “the following acts, or any of them
coming within the jurisdiction of the Tribunal for which there shall be
individual responsibility: (a) CRIMES AGAINST PEACE: namely
planning, preparation, initiation or waging of a war of aggression, or
a war in violation of international treaties, agreements or assurance,
or participation in a Common Plan or Conspiracy for the
accomplishment of any the foregoing.”
DRAFT CODE OF CRIMES AGAINST PEACE
AND SECURITY OF MANKIND,
ADOPTED BY THE ILC IN 1996
• ARTICLE 16 STATED “An individual who,
as leader or organizer, actively
participates in or orders the planning,
preparation, initiation or waging of
aggression committed by a state, shall be
responsible for a crime of aggression.”
(UN Doc. A/51/332)
UN SC RESOLUTION 573
OF 4 OCTOBER 1985
• ISRAELI ATTACKED ON PLO TARGETS
DUE TO THE DEATH OF ITS CITIZENS
• ISRAEL WAS DEEMED TO COMMIT AN
ACT OF AGGRESSION TOWARD THE
PLO HEADQUARTERS
• THE SC CONDEMNED THE ATTACK
AND DEMANDED THAT ISRAEL
REFRAINED FROM FURTHER SUCH
ATTACKS
• AGGRESSION ISRAEL TO GAZA ALSO
SATIFIES THE CATEGORY OF
AGGRESSION AS AN INTERNATIONAL
CRIME PURSUANT TO UN GENERAL
ASSEMBLY RESOLUTION 3314 (XXIX)
OF 14 DECEMBER 1974, WHICH ARE:
– ATTACK ON THE TERRITORY OF
PALESTINE
– BOMBARDMENT AGAINST THE
TERRITORY OF PALESTINE
THE LEGAL STATUS OF
UN GA RESOLUTIONS
• UN GA RESOLUTIONS AS A SOURCE
OF LAW
• SLOAN IDENTIFIES THREE MAIN
CATEGORIES OF GA RESOLUTION
– DECISIONS
– RECOMMENDATIONS
– DECLARATIONS  DERIVED FROM A
CONSENSUS  BIN CHENG: INSTANT
CUSTOMARY LAW  STATE PRACTICE
AND OPINIO JURIST
THE LEGAL STATUS OF
UN SC RESOLUTIONS
• UN SC RESOLUTIONS AS A SOURCE OF
LAW
• UN SC RESOLUTIONS HAVE LEGAL BINDING
TOWARD STATES, ESPECIALLY THOSE
THAT ARE INVOLVED ARMED CONFLICTS
• EVEN SC RESOLUTIONS CAN CREATE
SANCTIONS FOR STATES AND A TRIBUNAL
TO TRY INTERNATIONAL CRIME
PERPETRATORS
ISRAEL AND THE ACTS
OF TERRORISM
• DEFINITION OF TERRORISM REMAINS UNCLEAR
AND DEBATABLE
• THIRD WORLD COUNTRIES THE NOTION COULD
NOT COVER ACTS OF VIOLENCE PERPETRATED BY
SO-CALLED “FREEDOM FIGHTERS”  INDIVIDUALS
OR GROUPS STRUGGLING FOR THEIR RIGHT TO
SELF-DETERMINATION
• DEVELOPING COUNTRIES  NO TREATY COULD
NOT BAN TERRORISM UNLESS AT THE SAME TIME
THE HISTORICAL, ECONOMIC, SOCIAL AND
POLITICAL CAUSES UNDERLYING RESORT TO
TERRORISM WERE STUDIED CAREFULLY
• DEVELOPED COUNTRIES DISAGREED IF FREEDOM
FIGHTERS EXCLUDED FROM THE DEFINITION OF
TERRORISM
DOES THE DEFINITION OF
TERRORISM EXIST?
• ARTICLE 33 (1) OF THE 4th GENEVA CONVENTION
1949  “collective penalties and likewise all measures
of intimidation or of terrorism are prohibited.”
• ARTICLE 4 (2)(d) OF THE 2nd ADDITIONAL
PROTOCOL OF 1977, ON INTERNAL ARMED
CONFLICTS, PROHIBITS “ACTS OF TERRORISM” “AT
ANY TIME AND IN ANY PLACE WHATSOEVER”.
• THE DRAFTMEN DELIBERATELY DID NOT SPECIFY
WHAT IS COVERED BY THIS NOTION TO HAVE
CLEAR IDEA OF WHAT THEY WERE PROHIBITING
THE LAWS AGAINST
TERRORISM
• NATIONAL LAWS
– The US Iran and Libya Sanctions Act of 1996 provides that ‘an act of
international terrorism’ means an act ‘(A) which is violent or dangerous
to human life and that is a violation of the criminal law of the US or of
any State or that would be a criminal violation if committed within the
jurisdiction of the US or any State; and (B) which appears to be
intended (i) to intimidate or coerce a civilian population; (ii) to influence
the policy of government by intimidation or coercion; or (iii) to affect the
conduct of a government by assasination or kidnapping.”
– The UK Terrorism Act 2000, terrorism: (1) means the use of threat of
action, where-- (a) the action falls within subsection (2), (b) the use or
threat is designed to influence the government or to intimidate the public
or a section of the public, and (3) the use or threat is made for the
purpose of advancing a political, religious or ideological cause. (2)
action falls within this subsection if it– (a) involves serious violence
against a person, (b) involves serious damage to property, (c)
endangers a person’s life, other than that of the person committing the
action, (d) creates a serious risk to the health or safety of the public or a
section of the public, or (e) is designed to interfere with or seriuosly to
disrupt electronic system.
THE LAWS AGAINST
TERRORISM
• INTERNATIONAL TREATIES
– CONVENTION FOR THE PREVENTION AND PUNISHMENT
OF ACTS TERRORISM 1971
– EUROPEAN CONVENTION ON THE SUPPRESSION OF
TERRORISM 1977
– THE 1st ADDITIONAL PROTOCOL 1977 OF THE GENEVA
CONVENTION 1949
– CONVENTION TO PREVENT AND PUNISH THE ACTS OF
TERRORISM TAKING THE FORM OF CRIMES AGAINST
PERSONS AND RELATED EXTORTION THAT ARE OF
INTERNATIONAL SIGNIFICANCE 1971
– ARAB CONVENTION FOR THE SUPPRESSION OF
TERRORISM 1998
THREE MAIN ELEMENTS OF THE CRIME
OF INTERNATIONAL TERRORISM
• THE ACTS MUST CONSTITUTE A CRIMINAL
OFFENCE UNDER MOST NATIONAL LEGAL SYSTEM
(FOR EXAMPLE: ASSAULT, MURDER, KIDNAPPING,
HOSTAGE-TAKING, BOMBING, etc.)
• THEY MUST BE AIMED AT SPREADING TERROR
(FEAR AND INTIMIDATION) BY MEANS OF VIOLENT
ACTION OR THE THREAT DIRECTED AGAINST A
STATE, THE PUBLIC, OR PARTICULAR GROUPS OF
PERSONS
• THEY MUST BE POLITICALLY, RELIGIOUSLY, OR
IDEOLOGICALLY MOTIVATED, THAT IS NOT
MOTIVATED BY THE PURSUIT OF PRIVATE ENDS
DOES THE ICC HAVE JURISDICTION
TOWARD ACTS OF TERRORISM?
• UNFORTUNATELY NOT, BECAUSE:
– LACKED OF AGREED DEFINITION
– THE INCLUSION OF THE CRIME WOULD
POLITICIZE THE COURT
– IT WAS NOT SUFFICIENTLY SERIOUS AN
OFFENCE TO BE WITHIN THE COURT’S
JURISDICTION
– IT WOULD BE EFFECTIVE IF BEING
PROSECUTED AT THE NATIONAL LEVEL
• HOWEVER, TERRORISM CAN BE REGARDED
AS A CRIME UNDER THE JURISDICTION OF
THE ICC IF IT AMOUNTS TO WAR CRIMES
AND CRIMES AGAINST HUMANITY
THE HALLMARK OF
TERRORISM
• ACCORDING TO M. DELMAS MARTY, THE
HALLMARK OF TERRORISM IS
“DEPERSONALIZATION OF VICTIM”
– The perpretator does not attack a specific victim, on
account of a personal relationship or animosity, or of
the victim possessing certain assets, or of his or her
gender or age, or of his or her nationality, social
position etc.
– The perpretator here is “blind” to the victim, it does
not matter to him whether the victim is young or old,
male or female, the same nationality or foreigner,
wealthy or poor etc.
TERRORISM AS A WAR CRIME
• IF IT INFRINGES ARTICLE 33 (1) OF THE 4th GENEVA
CONVENTION 1949 IN REGARD WITH “PROTECTED
PERSONS” IN ARMED CONFLICT
• ARTICLE 22 OF THE 1923 HAGUE RULES ON AERIAL
WARFARE STATING THAT “aerial bombardment for the
purpose of terrorizing the civilians population, of
destroying or damaging private property not of military
character, or of injuring non-combatants is prohibited.”
• WHAT WE NEED TO PROVE:
– ACTUS REUS  ACT OF ATTACKING OR OF THREATING
OF AN ATTACK ON CIVILIANS (OR CIVILIAN OBJECTS) TO
SPREAD FEAR AMONGST CIVILIANS
– MENS REA  INTENT TO CARRY OUT UNLAWFUL ACTS
AGAINST CIVILIANS, WHICH ACCOMPANIED BY SPECIAL
INTENT TO BRING ABOUT TERROR AMONGST CIVILIANS
TERRORISM AS A CRIME
AGAINST HUMANITY
• IT MUST MEET SPECIAL
REQUIREMENTS, WHICH ARE:
– IT IS PART OF A WIDESPREAD OR
SYSTEMATIC ATTACK ON CIVILIANS
– THE PERPRETATORS ARE AWARE OF
THE FACT THAT THE ACTS ARE PART OF
A GENERAL OR SYSTEMATIC PATTERN
OF CONDUCT
ISRAEL AMOUNTS TO
A STATE TERRORISM
• WHY?
– ITS ACTS CONSTITUTE A CRIMINAL OFFENCE UNDER
MOST NATIONAL LEGAL SYSTEM, EXAMPLE, ASSAULT,
MURDER, BOMBING, KIDNAPPING, HOSTAGE-TAKING,
ARSON, TORTURE, etc.
– IT AIMS AT SPREADING TERROR (FEAR AND
INTIMIDATION) BY MEANS OF THREAT OR VIOLENT
ACTION AMONG THE PUBLIC OR PARTICULAR GROUPS OF
PERSONS
– ITS MOTIVATION IS BASED ON POLITICS OR IDEOLOGY OR
RELIGION, NOT MOTIVATED BY PRIVATE ENDS
– THE VICTIMS ARE CIVILIANS (PALESTINIANS) AND PUBLIC
OFFICIALS (PLO MEMBERS)
– IT HAS A SPECIAL INTENT TO SPREAD TERROR AMONGST
THE PALESTINIAN POPULATION
• COMMENTATORS: “State terrorism may also refer to
the acts of terrorism conducted by a state (Israel) against
a foreign state (Palestine) or people (Palestinian)
ISRAEL’S WALL VIOLATES
INTERNATIONAL LAW
• ICJ ON ITS ADVISORY OPINION DATED
9.7.2004 ISSUED THAT ISRAEL’S WALL
VIOLATES INTERNATIONAL LAW VOTED 14:1
(JUDGE THOMAS BUERGENTHAL FROM THE
US, DISSENTING)
– THE WALL MUST BE DISMANTLED IMMEDIATELY
– THE WALL CREATES ENCLAVES THAT AFFECT
THE FREEDOM OF MOVEMENT FOR
PALESTINIANS, HEALTH SERVICES,
AGRICULTURE, EDUCATION, WATER AND
CHANGE THE DEMOGRAPHIC COMPOSITION OF
THE TERRITORY
• THE ISRAEL’S WALL INFRINGES SOME
INTERNATIONAL TREATIES, SUCH AS:
– ARTICLE 49 & 53 OF THE 4th GENEVA
CONVENTION  THE DEMOLITION OF HOMES
AND THE EXPULSION OF THE RESIDENTS OF
THOSE HOMES
– ARTICLE 33 OF THE 4th GENEVA CONVENTION 
COLLECTIVE PUNISHMENT FOR WEST BANK
RESIDENTS  IT AMOUNTS TO A WAR CRIME
– The barrier attempts to separate Palestinians from
their means of livelihood and from interaction with
others and is therefore qualifies as APARTHEID 
APARTHEID IS ILLEGAL AND IS CONSIDERED AS
A CRIME AGAINST HUMANITY
ISRAEL VIOLATES INTERNATIONAL
HUMANITARIAN LAW
• THE 1949 4th GENEVA CONVENTION RELATIVE ON
PROTECTION OF CIVILIAN PERSON IN TIMES OF
WAR, TO WHICH ISRAEL IS THE PARTY
• THE 1907 HAGUE REGULATIONS THAT BINDS
ISRAEL AS CUSTOMARY INTERNATIONAL LAW
RELATES TO ISRAEL’S OCCUPATION OF THE
PALESTINIAN TERRITORIES  The construction of the
wall has led to the destruction of Palestinian properties
that contravene the requirement of Articles 46 and 52, as
well as Article 53 of the 4th Geneva convention
ISRAEL VIOLATES HUMAN
RIGHTS CONVENTIONS
• ISRAEL HAS RATIFIED ICCPR, ICSECR
AND RIGHTS OF THE CHILD
CONVENTION
• ICJ POINTS OUT THAT THE
PROTECTION OFFERED BY THE
HUMAN RIGHTS CONVENTIONS DOES
NOT CEASE IN CASE OF ARMED
CONFLICT
ARE ADVISORY OPINIONS
BINDING FOR PARTIES?
• UNDER UN CHARTER AND ICJ STATUTE,
ADVISORY OPINIONS RENDERED BY THE
ICJ IN PRINCIPLE ARE NON-BINDING, BUT IT
DOES NOT MEAN THE OPINIONS ARE
WITHOUT LEGAL EFFECT BECAUSE THE
LEGAL REASONING EMBODIED IN THEM
REFLECTS THE COURT’S VIEWS ON
IMPORTANT ISSUES OF INTERNATIONAL
LAW
• MOREOVER, ICJ CONCLUDED THAT “THE
OBLIGATIONS VIOLATED BY ISRAEL
INCLUDE CERTAIN OBLIGATIONS ERGA
OMNES”
THE ROLE OF ICC
• THE ICC PROSECUTOR (WITH POPRIO
MOTU RIGHT) MUST INVESTIGATE
WHETHER OR NOT THE CRIMES
CARRIED OUT BY THE ISRAELI
SOLDIERS OR COMMANDERS
AMOUNT TO THE CRIMES UNDER THE
ICC JURISDICTION
THANK YOU
BIOSKETCH
• Wisnu Aryo Dewanto is a lecturer at the Surabaya
University Faculty of Law (SUFL). He has joined the
SUFL since 1999. His academic career was started at
the Atma Jaya University Faculty of Law, Yogyakarta in
1992-1997. Then, he pursued his first Master of Law
degree at the Macquarie University Law Faculty,
Sydney, Australia in 1998-1999. His second Master of
Law degree was obtained in 2002-2003 from the
University of Washington Law School, the United States
of America. In 2006, he commenced his Doctoral degree
at Gadjah Mada University Faculty of Law and graduated
in May 2011.
• He is now acting as the 1st Vice Dean on Academic and
Student Affairs at the SUFL. Finally, if you need to
contact him, you can reach via emails:
[email protected] or [email protected], as well
as his mobile phone: 081.793.89.1.86