Posts by Robbie Sabel

Joining the Hague court will have implications for Palestinians, too

Robbie Sabel — Thu, 06 Dec 2012 10:42:24 +0000

One of the reasons Israel objected so vehemently to the premature UN recognition of Palestine as a state was the apprehension that the International Criminal Court at The Hague (ICC) would, subsequently, accede to a request by the “state of Palestine” to join the Court. Once accepted as a member state, the Palestinians might then attempt to have Israeli officials indicted.

The Court has jurisdiction to try offences committed in the territory of a state that has accepted jurisdiction, even if the alleged perpetrators are nationals of a state that has not accepted the jurisdiction of the Court.

The Palestinian argument could be that transferring population to an occupied territory, “directly or indirectly”, is listed in the statute of the Court as a grave war crime. Therefore, any Israeli involved, even indirectly, in transferring Israeli nationals to “occupied Palestinian territory”, has committed a war crime that is subject to the jurisdiction of the Court. Palestinians could further argue that Israel obviously would not try its officials for encouraging settlement activity, hence the ICC should have jurisdiction.

In reality, this scenario is highly unlikely. Should “Palestine” join the Court it would mean that any Palestinian national who, in future, commits a war crime anywhere in the world, could be subject to the jurisdiction of the Court. Since presumably “Palestine” includes Gaza, it would mean that all Hamas personnel involved in the future in firing rockets at Israeli civilians would be subject to the jurisdiction of the Court. It can be assumed that the Palestinians will hesitate before undertaking such a step. It is
interesting to note in this context that, with the exception of Jordan, none of Israel’s neighbouring Arab states has accepted the jurisdiction of the Court.

Furthermore, it is highly unlikely that the Court or the Prosecutor of the Court would want the Court to be involved in what is clearly a political dispute. The preamble to the constitution of the Court refers to “serious crimes of concern to the international community as whole” and “unimaginable atrocities that deeply shock the conscience of humanity”.

The question of the Israeli settlements is clearly not of this nature; it is a political issue of where the boundary will be between Israel and a future Palestinian state. During negotiations, even the Palestinians concede that some settlements will be on the Israeli side of a future boundary. The location of such a boundary is hardly the sort of issue that should be decided by an international criminal court.

Underlying Israel’s apprehension is its bitter experience with international legal bodies. The judges of international courts are elected by majority voting of states. In such votes, the Arab and Muslim blocs wield enormous political clout. Despite Israel’s legal expertise, no Israeli judge has ever been elected to an international tribunal. Unhappily, Israel and Israelis cannot be certain international courts will do justice.

Precision strikes aim to minimise deaths

Robbie Sabel — Thu, 15 Nov 2012 18:20:13 +0000

Israel’s killing of Ahmed Jabari, the commander of the military wing of Hamas in Gaza, raises questions about the legality of targeted killing.

Is it permissible to target an individual from the air? It could be claimed that, in effect, military officers serve as prosecutors, judges and executioners all rolled into one, without giving the defendant any notice of the charges or semblance of a fair trial.

The response of international law is that a la guerre comme a la guerre. In time of armed conflict, all enemy combatants are legal targets.

The commander of enemy forces is by definition a legitimate military target — and usually a very valuable target.

The peacetime human rights rules of trial and evidence are not relevant as regards an enemy combatant in hostile territory.

It is quite clear that in the Second World War, for example, it would have been perfectly legitimate for the Allies to have targeted enemy military commanders — and vice versa.

Non-combatants, however, are not legitimate targets and it is the duty of the attacking force to take all reasonable steps to minimise civilian casualties.

This rule applies even where, as is the case of Hamas in Gaza, the enemy deliberately places its rockets and ammunition supplies close to civilian areas or buildings.

In such situations there is no way to avoid completely civilian casualties, but nevertheless there is still a duty to try and minimise them. The surgically accurate Israeli strikes are clear proof that Israel is indeed making such an effort.

Ambassador Robbie Sabel is former legal adviser to the Israeli Foreign Ministry

‘ISM was using activists as terrorists’ human shields’

Robbie Sabel — Thu, 30 Aug 2012 14:49:49 +0100

Videos of the death of Rachel Corrie have horrified viewers around the world and caused Israel immense public damage in the nine years since the incident.

However, the Haifa court had one focus: to establish whether Corrie’s death had been caused deliberately or negligently by the driver of the bulldozer and whether her estate was entitled to compensation. The fact that Corrie was killed by the IDF bulldozer was not in dispute.

In a detailed, 65-page judgment, the court found that the bulldozer was engaged at the time in a military operation to clear the land and not, incidentally, in demolishing houses.

The area concerned was the “Philadelphia Corridor”, a strip of land separating the Gaza Strip from Egypt.
This corridor was under continuous sniper fire from Palestinian terrorists in the Gaza Strip. The sniper fire forced the bulldozer crews to operate with closed hatches, and the court concluded that because of the limited field of vision from the operator’s seat, the operator of the bulldozer was not aware of Corrie’s presence.

The Court also found that none of the crew operating the bulldozer was aware of Corrie’s presence. In response to an expert witness who argued that the IDF should have equipped the bulldozer with cameras, the court found, basing its analysis on another expert witness, that it was not practicable to equip the bulldozer with sufficient cameras to provide all-round vision in a combat situation.

Corrie was an activist in the International Solidarity Movement (ISM). Basing its decision on expert academic witnesses who gave evidence on behalf of the state, the court reached the conclusion that the ISM was far from being an innocuous, benign humanitarian body and in fact had been engaged in sabotaging the IDF’s operations, stationing activists to serve as “human shields” for terrorists wanted by Israeli security forces, and providing assistance to Palestinian terrorists and their families.

The court also found that Corrie was aware that she was illegally entering a war zone and deliberately risked her life. However, the court did not base its verdict on Corrie’s behaviour but rather on the existence of a combat situation and absence of maliciousness or negligence on the part of the IDF.

The Court’s well-argued decision may help persuade jurists that there was no deliberate attempt to cause Corrie’s death. Nevertheless, the incident was a tragedy and one that added to the negative image of Israel.

Robbie Sabel is a professor of international law at the Hebrew University in Jerusalem.

Lift lid of Abbas’s bid and you’ll see a rejection of compromise

Robbie Sabel — Thu, 27 Oct 2011 11:06:28 +0100

in his speech last month at the UN General Assembly, PLO Chairman Mahmoud Abbas said that the Palestinian application for membership of the UN was submitted "on the basis of the June 4, 1967 borders".

Abbas called for the recognition of an "independent state of Palestine, with East Jerusalem as its capital, on all the land of the West Bank, including East Jerusalem and the Gaza Strip, which Israel occupied in the June 1967 war."

Although the speech contained an unbridled attack on Israel, commentators have found comfort in the fact that this was a renunciation of Palestinian territorial claims beyond the 1967 borders and, by implication, recognition of Israel within those borders.

Although a call to return to the 1967 borders implies a call to transfer the Jewish Quarter of Jerusalem and the Western Wall to a Palestinian state, nevertheless it also means Palestinian recognition of Israeli sovereignty over Western Jerusalem.

It is disturbing, however, that, as distinct from the speech, the actual application for UN membership makes no reference to the 1967 line or to the borders of the Palestinian state.

In an accompanying letter to the UN Secretary General, Abbas writes that the vast majority of the international community has accorded recognition to the state of Palestine "on the basis of the 4 June 1967 borders, with East Jerusalem as its capital". In other words, the letter notes that the international community supports the 1967 line but again makes no statement as to what the Palestinians themselves see as their border.

The Palestinian submission for membership refers to only two supporting documents, the 1947 Partition Plan and the 1988 Palestinian Declaration of Independence.

The 1988 Declaration was deliberately vague in its reference to borders, referring to "the establishment of the state of Palestine on our Palestinian territory". The 1947 UN Partition Plan recommended borders that, inter alia, gave nearly the whole of the Galillee and Beersheva to a proposed Arab state and excluded Jerusalem from both the Arab and Jewish State.

The Palestinian letter of submission adds that their application for membership is consistent with the rights of the Palestine refugees, "in accordance with General Assembly resolution 194". This UN Resolution recommended that "the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date".

The Palestinian position is that "refugee" applies to descendants of refugees and that therefore there are now some five million Palestinian refugees who have a right to return to Israel.

Thus, although ostensibly restricting Palestinian territorial demands to the 1967 borders, an examination of the text appears to show that the submission for UN membership may have been encumbered with conditions and demands that could raise immense difficulties in future negotiations.

What is the next step for the palestinians at the UN?

Robbie Sabel — Tue, 27 Sep 2011 14:05:02 +0100

A threat is usually more effective when it looms above the intended victim rather than when it is consummated. The Palestinians have constantly been threatening to take their case to the UN; they have finally done so and the heavens haven't fallen. The Palestinians have applied to the UN Security Council for full UN membership. The request will fail either because they cannot muster the required nine-member majority or, if they do so, then because of the promised US veto.

The next step they can take is to apply to the UN General Assembly requesting that Palestine be upgraded from a non-state entity observer to the status of a state observer; a status enjoyed by the Vatican and, in the past, by Switzerland before it decided to join the UN. If the Palestinians request such an upgrade, their request will be no doubt be approved by an overwhelming majority. It will, however, have no practical effect at the UN since, at the UN General Assembly, the delegation of Palestine already enjoys all the privileges of an observer state.

If the UN General Assembly recognises Palestine as a state it will however lead all other UN-affiliated organisations to accept Palestine as a member. International organisations, other than the UN, do not have a veto system, therefore all that is required for a state to become a member is a vote of a majority of member states. The Palestinians are assured of such a majority in every international organisation.

Whatever the result at the UN, the thorny issues can only be decided by thorough talks.

It is in nobody's interest to engage in lawfare

Robbie Sabel — Thu, 22 Sep 2011 12:33:25 +0100

International law defines an entity as a state if it has a permanent population, boundaries, an effective government and the ability to sign treaties and exchange diplomatic missions. Even if these conditions are present, other states have discretion as to whether to recognise such a new international entity.

Formally, the UN has no role to play in the question of recognition although, if the Palestinians apply for membership in the UN, then those states that vote to support such an application will be deemed to have recognised Palestine as a state.

Membership of the UN requires the approval of both the Security Council and the General Assembly. The US has declared that, if necessary, it will veto a Security Council approval of Palestinian application for membership.

There is no right of veto in the UN General Assembly and the Palestinians can assume that a large majority of states in the Assembly will support any resolution they propose, but such a resolution cannot grant them membership.

"Palestine" is already recognised as an observer at the UN with all the rights of an observer state, therefore such new recognition will have little significance at the UN itself, nevertheless such a resolution will not be devoid of effect.

On political issues, all international organisations affiliated with the UN take their cue from the UN General Assembly. If the UN General Assembly passes a resolution recognising Palestine as a state then it must be assumed that all the other international organisations will accept "Palestine" as a member state. Such organisations include the International Court of Justice, the International Labour Organisation, the World Health Organisation, the International Atomic Energy Agency and the international organizations dealing with civil aviation, maritime traffic, telecommunications, posts and patents. None of these bodies have the veto system and membership is approved by a majority vote.

Palestinian membership of the International Criminal Court could pose a particular problem for Israel. Subject to certain conditions, the Court is competent to try any individual who commits a war crime on the territory of a member state.

A "War Crime," as defined by the constitution of the Court, includes "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies." This clause was incorporated in the Court's Charter at the instigation of the Arab states explicitly with the Israeli settlements in mind.

However, if "Palestine" should decide to join the Court, then any Palestinian citizen who commits a war crime, anywhere in the world, would be subject to the jurisdiction of the Court. Deliberate attacks on civilians are of course also defined as war crimes.

Apart from Jordan, none of Israel's Arab neighbours have joined the Court, and it may give the Palestinians, particularly with their Hamas contingent, pause to carefully ponder whether it is in their interest to accept the jurisdiction of the ICC.

Robbie Sabel is a Professor of International Law at the Hebrew University and a former legal adviser of the Israel Ministry of Foreign Affairs

UN can't determine borders or statehood

Robbie Sabel — Thu, 02 Jun 2011 14:03:44 +0100

This September, or perhaps earlier, the Palestinian observer delegation to the UN may introduce a resolution at the General Assembly calling for recognition of a Palestinian state within the 1967 boundaries. Because of the automatic anti-Israel majority in the Assembly, it must be assumed that such a resolution, if proposed, will be adopted by a large majority.

In fact, a 2003 Arab-sponsored UN General Assembly resolution has already called for a "two-State solution of Israel and Palestine living side by side in peace and security based on the Armistice Line of 1949".

A new such resolution would grant the Palestinians further international support for their demand for a return to the 1967 lines. Under international law, however, UN General Assembly resolutions are not binding, not even for those states voting for them.

Furthermore, except for cases where a former border is inherited by new states, borders can only be delimited by agreement between the states concerned. No UN organ has the authority to delimit boundaries.

A General Assembly resolution recognising a Palestinian state would not even mean acceptance of Palestine into the UN. Only if the Security Council recommends membership can the Assembly accept a new member state to the UN. Decisions of the Security Council are of course subject to the veto of any of the five permanent members, which includes the US.

It remains to be seen whether the Palestinian Authority will in fact declare a state within the 1967 lines. Such a declaration would be a violation of the Oslo agreements, enabling Israel to legally claim that it is no longer obliged to fulfil its Oslo obligations, which include transferring funds, supplying electricity and allowing movement of goods and persons.

Moreover, a Palestinian declaration of independence within the 1967 borders conceivably implies that they have given up a claim to the whole of Palestine. It might also have the effect of changing the current image of the Israeli-Palestinian dispute from that of a homeless people under military occupation into a fairly minor border dispute between two states.

The Assembly cannot determine boundaries, nor can it confer statehood. A boundary between Israel and a Palestinian state can only be determined by a deal between the parties.

Robbie Sabel is a professor of international law at the Hebrew University and the former legal adviser to the Israel
Foreign Ministry