International legal terminology, politics and human rights

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

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

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)

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.

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

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)).

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.

(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.)

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

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

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 ...

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

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.

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.

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 ...

(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...

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;

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. ...

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.

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,

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”

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.

International legal terminology, politics and human rights