International Law

Nabil ElAraby named Foreign Minister of the new Egypt

Nabil El-Araby (ElAraby) has been named the Foreign Minister of the new Egypt.

A brilliant choice.

See his separate opinion on the Advisory Opinion on the Wall, here, written when he served as a Judge on the International Court of Justice:

“What I consider relevant to emphasize is that this special responsibility [of the United Nations for Palestine, as mentioned in the main body of the Advisory Opinion of July 2004] was discharged for five decades without proper regard for the rule of law. The question of Palestine has dominated the work of the United Nations since its inception, yet no organ has ever requested the International Court of Justice to clarify the complex legal aspects of the matters under its purview. Decisions with far-reaching consequences were taken on the basis of political expediency, without due regard for the legal requirements. Even when decisions were adopted, the will to follow through to implementation soon evaporated. Competent United Nations organs, including the General Assembly and the Security Council, have adopted streams of resolutions that have remained wholly or partially unfulfilled. The United Nations special responsibility has its origins in General Assembly resolution 181 (II) of 29 November 1947, hereafter the Partition Resolution”…

Iain Scobbie on Israeli settlements in West Bank

As settlers continue to take revenge from Palestinians for the murder of an Israeli settler in the West Bank near Nablus last Thursday, after which the Israeli Defense Forces shot three Palestinian men who are members of the Fatah movement headed by Palestinian President Mahmoud Abbas, tensions continue among Palestinians about the measures taken. The implications will echo through the weeks ahead.

On the question of the status of the Israeli settlements in the occupied Palestinian territory, I just came upon an interesting opinion piece by international law expert Iain Scobbie (coauthor of “The Israel-Palestine Conflict in International Law: Territorial Issues“), published in the Los Angeles Times on 16 December.

Here are some excerpts:
“…since its inception, Israel has never claimed legal title to all of the territory of the former British Mandate of Palestine. On the contrary, it has repeatedly denied such a claim in official statements and acts. On May 22, 1948, soon after Israel’s declaration of independence, the country’s representative to the U.N. Security Council stated that its territory was ‘the area outlined in the map appended to the resolution of 29 November 1947, as constituting the area assigned to the Jewish state’ — namely that area accorded to the nascent Israel by the U.N. Partition Plan contained in General Assembly Resolution 181. This did not include the West Bank. The same view was consistently expressed by Israeli courts. In 1950, Israel’s Supreme Court ruled, ‘The territory of the state of Israel does not coincide with all the territory under the former mandate’. Israel thus refused to be seen as the successor state to the Palestinian mandate. Accordingly, it refused to accede to treaties that bound the mandate and refused to pay the public debt that Palestine owed to Britain. How then can there be a right of Israeli settlement in the West Bank, territory to which Israel itself has never made legal claim? … Article 49 [of the Fourth Geneva Convention of 1949, which prohibits the transfer of parts of a state’s population into territory it occupies] prohibits any and all population transfers from the occupying power to occupied territory. In 2004 [in its Advisory Opinion on the Legality of the Construction of a Wall in the occupied Palestinian territory], the International Court of Justice unanimously found that Israeli settlements in the occupied Palestinian territory breached Article 49 … Israel knew soon after the Six-Day War in 1967 that settlements in the occupied territory were illegal. As Gershom Gorenberg recounts in his book, ‘The Accidental Empire: Israel and the Birth of Settlements‘, Theodor Meron, then legal advisor to Israel’s ministry of foreign affairs and a distinguished international lawyer specializing in the law of armed conflict and human rights, advised the Israeli government in September 1967 that settlements in the newly occupied territory were prohibited by Article 49. The fundamental point about settlements, then, is not that they obstruct diplomacy — which they do — but rather that they are illegal. Occupied territory is not under the sovereignty of the occupant. It cannot treat the territory it occupies as it sees fit. An occupant’s powers are circumscribed by international law, which unequivocally prohibits the settlement of part of its population, whether forcible or voluntary, in that territory. While this prohibition arises from Article 49, Article 1 requires parties not merely to respect the terms of the convention in their own conduct but also to ensure that others do. All states are party to the Geneva Conventions, therefore all states have the duty to ensure that Israel’s illegal policy of creating settlements in occupied Palestinian territory ceases without further delay”.

This opinion piece can be read in full here.

Of course, Israel does not view the territory in question as “occupied” — and thus rejects much of this occupation. In the legal memo written by Theodore Meron, to which Scobbie refers above, the oPt (occupied Palestinian territory) is referred to as “administered”…

Scobbie provides a link to an English-language translation of Meron’s legal memo, here.

Free Gaza expedition off U.S. State Department's press corp's radar screen

The Free Gaza media team reported today that “The SS Free Gaza and SS Liberty will leave Gaza for Cyprus on Thursday morning at 9:00 am. Several Palestinian students who have been denied exit visas by Israel will travel to Cyprus on the boats”.

The Free Gaza expedition also reported, separately, that Jeff Halper — the only Israeli (American-born) on board, was “detained” in the Sderot police station after he was readmitted to Israel through the Erez crossing. Haaretz reported that “Police on Tuesday detained an Israeli activist who had sailed to the Hamas-ruled Gaza Strip to challenge Israel ‘s blockade of the coastal region. They accused Jeff Halper, who also holds United States citizenship, of violating a ban on Israelis entering Gaza”.

The full Haaretz report can be viewed in full here .

In the Muqata’a today, where U.S. Secretary of State Condoleeza Rice and Palestinian President Mahmoud Abbas met today, and then held a press conference, there was no mention of the Free Gaza expedition.

The five journalists who composed the U.S. “travelling press corps” who accompanied Rice on her 25-hour visit to the region felt it was more important to ask about North Korea and Georgia. They also wanted details about the current negotiations between Israel and the Palestinians, despite the fact that the parties (Israel, in particular) have said repeatedly that they have agreed on strict silence.

When asked if it might not be interesting to ask also about the Free Gaza expedition, one news agency reporter travelling with Rice asked, “What’s that?”. Even when it was explained that the Free Gaza group has announced plans to return to Cyprus by boat, taking with them the Palestinian Fulbright scholars who cannot get out of the Gaza Strip to pursue their studies, the American journalist said, “Hmm, she (Rice) was very upset about that (at first)”.

But two of the senior men in the group ruled it out, saying that Russia+Georgia, North Korea, etc. are more important.

Abbas, however, with Rice at his side, did tell journalists after their meeting in the Palestinian presidential compound in the Muqata’a that they had discussed “Gaza and the urgent need to alleviate the suffering of the Palestinians, and to open doors for people and goods so life can continue”.

Abbas added that “the situation in the Gaza Strip is unbearable”.

Israel says it allowed Free Gaza expedition into Gaza to avoid bad publicity

We will probably soon learn that top Israeli officials decided to let the two ships in the Free Gaza expedition land unmolested in Gaza because stopping them would make the Palestinian Authority look bad, for multiple reasons, including the terms of the 1994 and 1995 Oslo Accords which give Israel total security control over Gaza’s territorial waters in the Mediterranean Sea.

We will probably also come to realize that Israel’s interest in concluding a deal to purchase Gaza Gas from one or more wells located within Gaza’s territorial waters would be jeopardized — by focussing attention on quietly-made security arrangements by which the Palestinians re-agreed (in the years 1999-2001) to Israeli security control around those undersea gas wells.

We may or may not become more aware of Israeli unilaterally-imposed conditions on its unilateral “disengagement” from Gaza in 2005, which also involved more Palestinian acceptance of Israel’s total security control in Gaza’s territorial waters, and which Israeli sources reported Egypt also signed on to at the time. These terms were, I was told after the “disengagement”, dictated to Mohammed Dahlan, who was put in charge of coodination with Israel, but who became dissatisfied with how he was being treated and stopped cooperating, going off to Germany for medical treatment instead. One Palestinian official told me that “We were informed, and we had no choice”.

And, we will probably also hear that Egypt also made strong pleas to Israel to let the ships pass — and that those on-board may well exit through the Rafah crossing between Egypt and Gaza.

Ynet reported, in a strange article on Saturday that said “local residents were disappointed by the small quantities of food brought in by two boats carrying international leftist activists”, that a Palestinian source in Gaza “slammed Egypt for being ‘an inseparable part of the siege’.” This strange article can be read in full on YNet’s website here .

Haaretz reported late Saturday that “Palestinian President Mahmoud Abbas also lauded the activists, who docked at Gaza City’s tiny port Saturday evening, receiving a warm welcome from thousands of jubilant Palestinians after a two-day journey marred by communications troubles and rough seas”. This tidbit can be found in this article on the Haaretz website here .

In a separate article of analysis published in Haaretz on Sunday, it was reported that “Despite an Israel Defense Forces plan to halt boats bearing left-wing activists on their way to Gaza, the government decided to permit the boats to reach Gaza shores in order to avoid a public relations disaster. Senior political sources in Jerusalem said that the fact that Israel allowed the boats to reach Gaza ‘took the wind out of the sails of the left-wing activists who were seeking to create a provocation’. Several discussions were held last week on this matter. At the time, the IDF raised the idea of forcibly preventing the boats from reaching Gaza. The army officers suggested stopping the boats at sea and towing them to the Ashdod port for inspection, where the activists on board would be detained for interrogation. However, after further consultation, it was decided on Friday to avoid a confrontation and to allow the boats to reach the Gaza Strip. In the wake of that decision, urgent directives were sent to Israel’s embassies around the world regarding the st’ance they should take concerning this event. These are professional provocateurs and we did not want to cooperate with that on the open seas’, a senior political source in Jerusalem said. ‘Instead of letting the entire international press obsess about this for a week, the boats received almost no coverage, simply because there was no confrontation’ … Discussions will be held in the next few days on whether to stop the boats for inspection once they leave Gaza. Israeli officials are worried they might be used to smuggle wanted Palestinians out of the coastal strip. ‘They’ve got a reputation for protecting terrorists and acting as human shields’, the political source said”. This article can be read in full in Haaretz here .

And, Ynet on Sunday published remarks from the only Israeli on board the Free Gaza expedition, American-born Jeff Halper, of “Matrix of Control” fame (describing a physical carving up of the West Bank) and head of the Israeli Committee Against House Demolitions: “In a phone interview with Ynet, Halper spoke about the reasons which motivated him and other left-wing activists to try and break the siege on the Strip: ‘There are people here yearning to live in peace with us, yearning for freedom. All these restrictions, they’re not just for security reasons, they’re symptomatic to something much, much deeper’. After years in the hub of anti-occupation and pro-peace activities, Halper decided to enlist the aid of some of his international peace activists’ associates and try and put the sail together. The idea, he explained, was motivated by the notion that world governments in general and the Israeli government in particular, are not doing enough to lift the siege. His boat – an old Greek liner which was renovated and sailed to Cyprus – ended up hosting 43 peace activists from around the world … The sail itself took about 36 hours. ‘We were pretty cut off (from the world) while we were on the boat. We were under the impression that it’s going to make headlines around the world. I felt a great since of responsibility and empowerment. A lot of people feel bitter in their everyday lives and here we felt we were doing something beautiful, acting against injustice. We felt we were on a mission… and by the response – we hit a nerve’.” Halper also said he wanted to convey to the world what a shambles once-beautiful Gaza had become. This can be read in full on YNet here .

Amazingly, they did it — Free Gaza ships arrived in Gaza

Several hours ago, the two Free Gaza ships entered Gaza.

According to Haaretz, the decision was made by the Israeli Security Cabinet (Foreign Minister Tzipi Livni, Defense Minister Ehud Barak, and Prime Minister Ehud Olmert) on FRIDAY evening. They reportedly decided, in effect, that they were refusing to be provoked by what they had earlier called an intolerable provocation.

So, if the decision was made on FRIDAY, why wasn’t it conveyed to the Free Gaza expedition, and to the world, earlier? Why all the bellicose and belligerent statements?

Israel’s YNet website reported Saturday evening that “Foreign Ministry official Aryeh Mekel said Israel allowed the boats to enter Gaza in order to ‘prevent a media-covered provocation at sea’. ‘We know who’s on these boats and what they contain, and therefore we’ll allow them to reach shore’, he said … The Foreign Ministry slammed the leftists and said that they did not deserve to be referred to as ‘peace activists’, branding them as a ‘handful of provocateurs seeking a public relations stunt who initiated a political protest aimed at boosting Hamas’ regime of horrors in Gaza’. ‘How does such delusional journey promote peace?’ the Foreign Ministry added. ‘What kind of contribution does this journey make to the promotion of ideas of reconciliation and compromise? None’.” This YNet report can be read in full here .

The Jerusalem Post reported that “Israel’s decision to allow two boats carrying international activists into Gaza’s port on Saturday was a ‘one-time’ event and did not constitute a decision by the government to allow sea access to the blockaded Palestinian territory…Israeli defense officials said a consultation was held late last week between Prime Minister Ehud Olmert and Defense Minister Ehud Barak during which it was decided to allow the boats into Gaza and not to use the navy to prevent their arrival. ‘It was clear from the beginning that this whole operation was a provocation aimed at making Israel look bad’, a senior defense official said on Saturday. ‘We decided to let them through in order not to play into their hands’. The official stressed that despite the opening of the Gaza port for international boats on Saturday, Israel did not plan to lift its sea blockade of Gaza and would not allow additional ships into the Strip out of fear that they will try to transport weaponry and explosives to Hamas … Now that the group is in Gaza, the expectation in Jerusalem is that they will at some point ask Israel to let them into the country so they can fly back home, since it is unlikely they will want to sail back the way they came. No decision, however, has yet been made on whether they will be allowed into Israel”. This report can be read in full here .

At least one of those on board has been refused admission into Israel in the past … but it’s not clear why the JPost believes these people are so eager to return home via Israel’s Ben Gurion international airport.

The Free Gaza website reported that “The boats were crewed by a determined group of international human rights workers from the Free Gaza Movement. They had spent two years organizing the effort, raising money by giving small presentations at churches, mosques, synagogues, and in the homes of family, friends, and supporters. They left Cyprus on Thursday morning, sailing over 350 kilometers through choppy seas. They made the journey despite threats that the Israeli government would use force to stop them. They continued sailing although they lost almost all communications and navigation systems due to outside jamming by some unknown party. They arrived in Gaza to the cheers and joyful tears of hundreds of Palestinians who came out to the beaches to welcome them. Two small boats, 42 determined human rights workers, one simple message: ‘The world has not forgotten the people of this land. Today, we are all from Gaza’. Tonight, the cheering will be heard as far away as Tel Aviv and Washington D.C.”

Journalist with Free Gaza expedition reports that ships have now entered Gaza's territorial waters

Here is an excerpt from the message signed by a journalist on board one of the two boats in the Free Gaza expedition heading to Gaza: “We’ve entered Gazan waters. We’re flying the Palestinian flag, and we now believe that we’re going to reach the shores of Gaza very soon” …

The message is signed by Yvonne Ridley, abord the SS Liberty, bound for Gaza, 23 Aug. 2008, and can be viewed in its entirety on the Free Gaza website here .

Free Gaza expedition reportedly about to turn into Gaza waters – contradictory message appears on website, then is pulled

Reporting from Ashdod Marina in southern Israel about 30 minutes ago, Free Gaza spokeswoman Angela Godfrey-Goldstein says in an email sent to journalists that the SS Free Gaza and SS Liberty, two converted fishing boats sailing from Cyprus to Gaza, “are now about to turn into Gazan waters, and may God speed them safe to land”.

And, she said, despite all the reported problems, which include communications black-outs and sea-sicknesses, and in rough waves with a storm brewing, the “Estimated time of arrival according to Jeff Halper, with whom I finally managed to speak on a satellite phone whose number wasn’t published and is now used in emergency, is 5 pm – 7 pm”.

And, she added, “I hear that 20 boats left Gaza Harbour to welcome FREE GAZA and LIBERTY, but are now doing a U-turn to go back … apparently due to warning shots having indeed been fired. Palestinians in Gaza said earlier there was NO ISRAELI NAVAL PRESENCE on the horizon”…

Now, she says, she is wondering how, if the boats actually manage to arrive in Gaza, “How they then get out? — Chapter Two of this ongoing saga …. But maybe today freedom and justice will warm a few Palestinian hearts” …

According to what she’s heard, Godfrey-Goldstein says there are some 200,000 Gazans on the beach, waiting to receive the FREE GAZA expedition, and “it’s obvious there’s a demonstration there, with extreme excitement”.

Though spirits are obviously high, this is the crucial moment — when the ships are about to leave international waters to enter Gaza’s territorial waters, which are under Israeli security control.

LATEST UPDATE: After the confusion reported just below in this post, and the pulling of an apparently wrong if not fictitious (maybe even hacked???) post on the Free Gaza website, this email above is now posted on the Free Gaza website here .

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Since the email quoted above arrived just a few minutes ago (was it authentic, or disinformation???), this has been posted on the Free Gaza website: Urgent: Request for International Community Intervention — Free Gaza Movement Boat Flotilla in Need of Immediate Assistance.

The website post says that the two Free Gaza expedition boats “are now sailing with damaged navigation systems. As such, they are in jeopardy of drifting off course and out of international waters. In addition they have encountering rough seas, with waves over 3 meters high … We request that all individuals and organisations make representation to the government of Israel and the Israeli navy to protect the lives of the civilians aboard the two ships, SS Liberty and SS Free Gaza which are sailing under the Greek flag”. This posting — which apparently contradicts the email message just received — can be read in full on the Free Gaza website
here

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LATEST UPDATE: This message has now been pulled off the website — could the Free Gaza website been hacked?????

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Now the Free Gaza website — cleansed of the post quoted above — is reporting the following location for the ships in the expedition: Latitude:31.7319, Longitude:34.1069 [Time:08/23/2008 12:21:18 (GMT), or 3:21 pm in the area]

As noted in yesterday’s post, Israel’s SECURITY AREA K has the following coordinates: (31° 41’•5N., 34° 17’•2E). So, the ships are very, very near SECURITY AREA K …

UNICEF takes a bold and brave stand … to avoid controversy, it says

From Haaretz today, this headline and sub-head: “UNICEF severs ties with Israeli billionaire Lev Leviev: UN children’s fund says company owned by mogul has been involved in building settlements in W. Bank“.

And from the text of the story: “UNICEF decided to review its relationship with Leviev after a campaign by Adalah-NY and found ‘at least a reasonable grounds for suspecting’ that Leviev companies were building settlements in occupied territory, a UNICEF official said”.

The report continues: ” ‘I can confirm that UNICEF has advised Adalah in New York that it will not be entering into any partnerships or accepting financial contributions from Lev Leviev or his corporate people’, Chris de Bono, a senior adviser to the executive director of UNICEF, told Reuters. ‘We are aware of the controversy surrounding Mr. Leviev because of his reported involvement in construction work in the occupied Palestinian territory’, de Bono said, adding that it was UNICEF’s policy to have partners who were ‘as non-controversial as possible’.” UNICEF could not say how much Leviev had donated as an individual. In his only known partnership with UNICEF, Leviev last year donated jewelry to a fashion event in France that benefited the French national committee for UNICEF, de Bono said…” The full report can be read in Haaretz here.

UN USG Pascoe speaks about international law and the situation in Gaza

UN Under-Secretary-General for Political Affairs Lynn Pascoe told the UN Security Council on Tuesday that “Israel must reconsider and cease its policy of pressuring the civilian population of Gaza for the unacceptable actions of militants …Collective penalties… are prohibited under international law.”

He also mentioned Israel’s targetted killings of Palestinians: “I would also like to reiterate that the UN’s basic principled opposition to extrajudicial killings is compounded by the frequency with which such operations are carried out in densely populated civilian areas.”

And, he said that Israel was obligated under international humanitarian law to avoid endangering civilians in its military actions.

Of course, his statement to the UNSC was balanced. The UN News Centre (the UN uses British English spellings) reported that “Mr. Pascoe acknowledged Israel’s security concerns, condemning unreservedly the ‘totally unacceptable’ rocket and mortar attacks launched by militants in Gaza. ‘Such attacks terrorize Israeli communities near Gaza, particularly in the town of Sderot. They also endanger humanitarian workers at crossing points’.” The UN News Centre report on the UNSC meeting on the situation in Gaza is here.