[Hebrew University, Law] Eyal Benvenisti, materials showing why he, supreme court judge candidate is dangerous for Israel
(From older articles to new)
Faculty of Law, Hebrew University of Jerusalem
Eyal Benvenisti argues that the current clashes meet the definition of war because technically Israeli's war of 1948-49 has never ended and that therefore the Geneva Conventions apply to the conflict. The most relevant, he says, is the Fourth Geneva Convention. He says that although Israel is not responsible for the acts of the Palestinian Authority toward its citizens, according to the Fourth Geneva Convention, Israel is responsible for its own acts toward Palestinian civilians. In contrast to Shamas, Benvenisti argues that because closing Gaza and the West Bank is a security precaution, one cannot distinguish between collective punishment and security concerns. In contrast to Ratner, Benvenisti says the settlers are not combatants and that if they shoot to kill, they should be tried as murders, not for war crimes.
Q: Is this a war?
From a technical and legal perspective, Israeli’s war of 1948-49 has never ended. It was an armistice agreement that ended with the war in 1967, so the laws of war apply here. Part of that is the law of belligerent occupation and that is applicable because the West Bank and Gaza are territories controlled by Israel, which is not a sovereign in those areas.
Q: But the friction points in these clashes are places classified as "Area A" which are controlled by the Palestinian Authority. Who has legal title there?
That’s a good question. This is a vague position for all sides. Israel doesn’t want to admit that it still occupies "Area A." With occupation comes duties to provide for the civilian population. But Israel does not want to admit that it doesn’t control them, because that would mean that someone else, in this case the Palestinian Authority, has legal title.
Q: What is your conclusion?
The definition of occupation is effective control. If Israel doesn’t control "Area A," then this must mean it has no claim to administer that area. But you can look at it another way: Israel continues to occupy the entire area, and delegates the authority to administer that area to the Palestinian Authority.
Q: What’s the implication of that view?
Israel is not responsible for the acts of the Palestinian Authority toward its citizens in "Area A." But, according to the Fourth Geneva Convention, Israel is responsible for any of its acts toward Palestinian civilians in the conflict.
Q: Does Israel recognize the Fourth Geneva Convention?
Israeli recognizes the Fourth Geneva Convention in general, but it does not formally recognize its applicability to the West Bank and Gaza because of complex issues relating to sovereignty. Although Israel doesn’t recognize its formal applicability, it has pledged to abide by it. To simplify: Israel does recognize all the principles in the Convention relating to the use of force.
Q: What aspects of international law must be applied to the clashes themselves?
You must distinguish between two issues when applying international law to these clashes. One is the action of the Israel Defense Forces toward civilians. The other is the action of the IDF toward fighters. Israel has a responsibility toward civilians. The first duty, of course, is to protect them as much as possible. This implies no acts of punishment, neither individual nor collective. The point is that any act should be designed in a way to reduce civilian casualties as much as possible.
Q: Is that happening?
According to Israeli press, the Israeli Defense Force has a policy of using sharp shooters. Why? Because they think that among the demonstrators there are gunmen who hide behind those who throw stones. So one way to act against them is just to aim and shoot. But using sharp shooters is not necessarily a policy to increase damage. Rather, it is designed to increase damage to those threatening Israeli soldiers — the gunmen — while decreasing it for those who are not — the stone throwers.
Q: There are numerous reports of sharpshooters targeting civilians, including children, who were not actively threatening Israeli Defense Force soldiers. Your response?
There are policies vis-a-vis stone throwers and policies vis-a-vis fighters. How they are being implemented I don’t know. But even if you have a conflict between two armies, there is no authority just to kill soldiers. You must limit injuries and not punish by killing. This is not a legitimate option. As far as I read, from time to time there are killings of Palestinian activists. But I don’t think we can ever get to the facts. Because each side has its own view of the topic, like a married couple. You view the same set of facts differently. Each side feels threatened. It’s hard to reconstruct the situation.
Q: However, one of the few facts we have is the high amount of
Palestinians killed, including a number of children, compared to Israeli casualties. Does this not reflect a disproportionate use of force and the targeting of civilians?
I don't know. I haven't been there. My impression is that there are a small number of soldiers against a lot of people. What would be wiser is not to have soldiers there, that way there could be a buffer zone. But cooperation with the Palestinian Authority has failed. You have to compare the number casualties with the overall number of people there as well as the number of clashes. I can’t really tell you.
Q: Palestinians say the Israeli restrictions on their movements is a form of collective punishment. Is it?
I don’t think you can distinguish between whether these closures are for security reasons or for collective punishment. Israel says this is motivated by security. They’ve closed off territories since 1993 because of bombs. Of course Palestinians see this as collective punishment. I guess both considerations are at play. I don’t know what dominates. But they are both in play.
Q: What about independent inquiries, like the recent visit of an
international commission, to help resolve the many debated issues? Perhaps they will come up with something. But both sides will contest it. We have a long experience with such commissions dating back to the British mandate. Nobody trusts these commissions.
Q: Are armed Israeli settlers considered combatants?
There are many Israeli civilians who carry guns. I have students in my classes who have guns. The fact that they carry guns does not make them fighters. The settlers are not players, they have no personal duty here. Neither Israeli law nor international law bestow on them no duty or right to engage in hostilities.
Q: But can they be considered an occupying paramilitary force?
No, unless they have the authority to fight, they cannot be considered an occupying paramilitary force. We have the civilian guard, which patrols the perimeter of the settlements. But this is not paramilitary, but para-police. They are not legitimate targets. And if they shoot to kill, then they should be tried as murders.
Q: What should journalists look for in they are covering these clashes? The most important point is to see if one principle is observed: you don’t mix soldiers and civilians. Civilians must be protected and the best way to do that is to disengage them. Both sides have a duty toward the civilian population. You can go to the Israeli Defense Force with
criticism and ask: Why did you attack civilians? Israel will respond: there were fighters among them.
The other point to look at is whether the response is reasonable
considering the threat. There are three principles: necessity, immediacy, and proportionality. These are the three tests we use in customary international law, and if those three are present, then shooting is legitimate under international law..
Eyal Benvenisti is the Hersch Lauterpacht Professor of International Law at The Hebrew University of Jerusalem Faculty of Law. He ?s also the director of The Minerva Center for Human Rights at the Hebrew University of Jerusalem and the author of The International Law of Occupation (Princeton University Press, 1993).
Below, Final page of summary to
In its advisory opinion of July 9, 2004, on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory,30 the International
Court of Justice found Israel in breach of several international
law obligations by its construction of a separation wall on West Bank territory.
The opinion addresses several significant questions that arise in relation
to the Israeli occupation in particular and to the law of occupation in
general. The Court flatly rejects the Israeli claims concerning the inapplicability
of the Fourth Geneva Convention to the West Bank and concerning
the inapplicability of Article 49 to the Jewish settlements in the areas
occupied by Israel. Neither have these claims gained serious support from
the international community.31 The Court views the wall as obstructing
the Palestinians’ right to self-determination on West Bank territory and as
a violation of several rights that individual Palestinians are entitled to
under both international humanitarian law and human rights law.
The opinion confirms the applicability of human rights law to occupied
territories. The Court enumerates several rights arising from the Covenant
on Civil and Political Rights; the Covenant on Economic, Social, and
Cultural Rights; and the Convention on the Rights of the Child that are
applicable also in occupied territories. The Court further finds the occupant’s
obligations under international humanitarian law to be erga omnes
obligations, whose violation raises the obligation of other states to ensure
compliance by the occupant with its obligations. In particular, the Court
declares that states party to the Fourth Geneva Convention have an obligation,
“while respecting the United Nations Charter and international
law, to ensure compliance by Israel [as an occupant] with international
humanitarian law as embodied in that Convention.”32 This assertion
remains “without any argument in its reasoning” and without elaboration
of the scope of that obligation.33
29 See Hansjoerg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United
Nations Mission in Kosovo and East Timor, 95 AJIL 46, 58–59 (2001); Irmscher, note 28, at
30 Advisory Opinion, July 9, 2004 (http://www.icj-cij.org/icjwww/idocket/imwp/
31 On these questions see pp. 109–14, 140–41.
32 Advisory Opinion, supra note 30, paragraph 159. But see the dissent of Judge Kooijmans
on this question: separate opinion of Judge Kooijmans, paragraphs 40–50.
33 See the separate opinion of Judge Kooijmans, paragraph 50.
In 1993, when this book was first published, there was a fresh promise of
global cooperation in a post–Cold War world. Attention was given to conflict
prevention rather than to conflict management, let alone to conflict
regulation. A truly active Security Council was poised to reduce and even
eliminate regional violence. Europe was collectively devising means to
ensure stabilization and justice in Central and Eastern Europe. Following
the 1993 Oslo Accords, hopes were even high for the cessation of conflict
in the Middle East and the end of occupation of Palestinian territories.
This promise was only partially fulfilled. In the following years, new occupations
presented new challenges. Some of these challenges called for
more effective enforcement measures, such as the establishment of an
international criminal court and other tribunals. Other challenges call for
adaptation of the law to contemporary perceptions and needs. Such adaptation
requires an understanding of the basic premises of the law of occupation
and its links to other spheres of international law. Such an understanding
is what this book tries to offer.
[Does Eyal Benvenisti speak about investigating the Palestinian fighting forces in Gaza?]
Last update - 02:18 28/01/2009
An obligation to investigate
By Eyal Benvenisti
In response to questions of international law raised during the fighting in Gaza, Israel Defense Forces and Israeli government officials have steadfastly argued that the country's military actions were in full accordance with the law. For that precise reason, these officials should now be meeting an additional obligation of the law: clarifying the issues that have been raised.
The duty to investigate wartime military actions that result in significant harm to a civilian population and raise fears of violations of the law is a precept of international law. High Court of Justice rulings regarding assassinations call for a "fundamental examination" even after the killing of someone who has played a direct role in the fighting. This is even more so true when noncombatants are harmed.
"Fundamental examination" does not mean a government commission of inquiry or a criminal investigation. The object of the examination is to scrutinize the actions that were carried out, not to seek guilty parties (unless evidence requiring this is revealed in the course of the investigation). There is a wide gap between violations of the law, if any, and war crimes, which would require proof of intent to commit said crimes.
Israeli and international law set clear lines for the conduct of such investigations, which require an effective examination that clarifies most of the facts and reaches conclusions. Such probes need to be independent, for the investigators cannot investigate themselves. The examination should also be carried out as quickly as possible, and the investigators should aspire to the utmost transparency, enabling all interested parties to state their claims and present evidence. The examination must be carried out in such a way that it upholds not only justice, but also the appearance that justice is being done - a requirement that extends beyond the minimal legal obligation.
The examination also has an essential practical outcome, since a country that upholds this legal obligation by investigating its actions thereby protects its soldiers against the possibility of standing trial abroad. This protection has three elements. First, the fact that an investigation is being conducted reduces the need for a tribunal in a foreign country. Thus, when an indictment was filed in Belgium against Ariel Sharon in the matter of the Sabra and Chatila massacre, his attorneys argued that the Israeli commission of inquiry had conducted an exhaustive legal hearing in the case.
Second, the findings and conclusions of the investigation can be used to refute evidence and/or disprove allegations that might be raised in a legal proceeding abroad, if such takes place. And third, the limits of what is permissible and what is prohibited during warfare are not always clear. (For instance, what constitutes "excessive" incidental harm to a civilian population?) In their rulings, courts are inclined to consider what happened at the time. (Were alternatives weighed? Was there adequate advance preparation prior to the attack? Did the planners know there would be an investigation?) A fundamental investigation can serve as a basis for finding people innocent of the charges.
Moreover, merely by conducting an investigation, Israel would convey the message that it takes a serious stand on upholding the laws of warfare. The fighting in Gaza once again proved that there are both military and diplomatic ramifications of observing the law. Under the conditions of warfare conducted under the media spotlight, an army that has the reputation of upholding the law will be granted more breathing room. That is why the Israel Defense Forces heavily relies in real time on its legal advisers. Nevertheless, real-time advice must not come at the expense of an ex post facto investigation that reviews all the facts.
The government has set up a variety of investigation teams. Will these teams enable a fundamental investigation? Will they be independent? Will they be able to provide the appearance that justice is being done? If not, not only is their work superfluous, but their mere existence is liable to be seen as indicating an intent to conceal facts and evade responsibility.
The writer is a professor at the Tel Aviv University Faculty of Law.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Advisory Opinion (2004) para.151 (referring to the possible responsibility for ―providing for compensation or other forms of reparation for the Palestinian population‖).
50 The Italian Court of Cassation ( supra note 31); The Israel Supreme Court, The Public Committee against Torture in Israel v. The Government of Israel (Targeted Killing case) (2006).
Court Cooperation, Executive Accountability and Global Governance
Tel Aviv University - Buchmann Faculty of Law
George W. Downs
New York University - Department of Politics
NYU Journal of International Law and Politics, Forthcoming 2009
It is widely acknowledged that the regulatory power that globalization has transferred to international organizations has largely been vested in the executive branches of a few powerful states that were the system’s principal architects. The combination of such overly concentrated executive power and the international system’s relative lack of structural checks and balances that safeguard democratic deliberation and human rights in domestic settings should be an important source of concern for those worried about democratic deficit at the global level. Of particular concern is the fact that judicial oversight, the principal structural check on executive power at the international level, remains very limited. Even those international tribunals with relatively broad mandates, like the International Court of Justice, possess far less independence than their domestic counterparts and the international judicial system is more fragmented and less hierarchical than that in most democracies. In this essay we argue that progress in containing executive power via judicial review is still possible, but that it is likely to be driven primarily from below by national court-led process of inter-judicial coordination that could eventually involve both national courts and international tribunals.
Date posted: May 26, 2009 ; Last revised: May 26, 2009
Eyal Benvenisti: The International Law of Occupation