On the fourth day of Israels most recent onslaught against Gazas Palestinian population, President Barack Obama declared, “No country on Earth would tolerate missiles raining down on its citizens from outside its borders.” In an echo of Israeli officials, he sought to frame Israels aerial missile strikes against the 360-square kilometer Strip as the just use of armed force against a foreign country. Israels ability to frame its assault against territory it occupies as a right of self-defense turns international law on its head. A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law. Admittedly, the enforceability of international law largely depends on voluntary state consent and compliance. Absent the political will to make state behavior comport with the law, violations are the norm rather than the exception. Nevertheless, examining what international law says with regard to an occupant’s right to use force is worthwhile in light of Israels deliberate attempts since 1967 to reinterpret and transform the laws applicable to occupied territory. These efforts have expanded significantly since the eruption of the Palestinian uprising in 2000, and if successful, Israel’s reinterpretation would cast the law as an instrument that protects colonial authority at the expense of the rights of civilian non-combatants. Israel Has A Duty To Protect Palestinians Living Under Occupation Military occupation is a recognized status under international law and since 1967, the international community has designated the West Bank and the Gaza Strip as militarily occupied. As long as the occupation continues, Israel has the right to protect itself and its citizens from attacks by Palestinians who reside in the occupied territories. However, Israel also has a duty to maintain law and order, also known as “normal life,” within territory it occupies. This obligation includes not only ensuring but prioritizing the security and well-being of the occupied population. That responsibility and those duties are enumerated in Occupation Law. Occupation Law is part of the laws of armed conflict; it contemplates military occupation as an outcome of war and enumerates the duties of an occupying power until the peace is restored and the occupation ends. To fulfill its duties, the occupying power is afforded the right to use police powers, or the force permissible for law enforcement purposes. As put by the U.S. Military Tribunal during the Hostages Trial (The United States of America vs. Wilhelm List, et al.) International Law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility. The extent and breadth of force constitutes the distinction between the right to self-defense and the right to police. Police authority is restricted to the least amount of force necessary to restore order and subdue violence. In such a context, the use of lethal force is legitimate only as a measure of last resort. Even where military force is considered necessary to maintain law and order, such force is circumscribed by concern for the civilian non-combatant population. The law of self-defense, invoked by states against other states, however, affords a broader spectrum of military force. Both are legitimate pursuant to the law of armed conflict and therefore distinguished from the peacetime legal regime regulated by human rights law.
Posted on: Tue, 15 Jul 2014 17:04:51 +0000
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