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)).

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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.

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(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

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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.

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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...

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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. ...

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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.