Such developments are nowhere more evident than in the context of the Israeli-Palestinian conflict. Actors who endeavour to defend the rights of those subject to military attack—in this case primarily the Palestinians of the Occupied Palestinian Territory (OPT)—are doing so more and more using international legal arguments and mechanisms. The use of the oppressor’s own legal system to advocate the rights of the subjugated people is commonplace throughout modern history, from colonial Kenya to Mandate Palestine2 to aparth2eid South Africa. It invariably presents dilemmas, however, for human rights lawyers and NGOs, particularly in a system such as Israel’s where the judiciary effectively functions to legitimise and ‘legalize’ the unlawful actions of the military and executive, rather than as an independent branch of government.3
Thus, with domestic remedies very often unavailable, human rights organisations and lawyers have been compelled to look elsewhere for impartial legal adjudication of alleged violations of international humanitarian and human rights law in the OPT. Such application to external jurisdictions for independent judgment according to the objective rules of international law has come to be construed by defenders of Israeli military policies as a form of ‘lawfare.’
‘Lawfare’ is described as “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.”4 In recent years, the term has generally been used in disparagement of human rights-based litigation strategies as disingenuous: public relations stunts that manipulate international law and are “usually factually or legally meritless.”5 In the context of the OPT, critics argue that human rights lawyers and organisations seeking to defend Palestinian human rights have co-opted international law to “further their political campaign against Israel.”6 Such criticisms belie the facts that (i) the majority of cases prepared by NGOs and human rights lawyers are meticulously researched and verified on the factual side, and cogently argued on the legal side; and (ii) the very raison d’être of using legal mechanisms is to allow the claims of alleged victims to be heard in an independent forum that is detached from the eternally obstinate politics of the conflict.
Themselves fully understanding “the role of law as a currency of political legitimacy,”7 the Israeli authorities have heavily engaged in their own form of ‘lawfare’ by, for example, issuing position papers that present legal arguments to justify the use of force against Palestinians in the OPT.8 Those same authorities, however, see fit to vilify lawyers, and even judges, who expound contrary legal arguments. Thus, the decision of a Spanish judge to initiate war crimes investigations against Israeli officials described as “ludicrous” and “outrageous”9 the decision of a Spanish judge to initiate war crimes investigations against Israeli officials, and the battle lines regarding universal jurisdiction have been clearly drawn. Legal strategies, both pre and post Operation Cast Lead, have focused primarily on invoking individual criminal responsibility for alleged war crimes under the principle of universal jurisdiction. There are also, however, other established bodies of law under which violations of international law against the Palestinians can be brought before foreign judges. One such avenue under public international law is the invocation of state responsibility against third States for failure to uphold their own legal obligations in respect of Israel’s breaches of international law in the OPT.
State Responsibility and the Background to the Case Against the UK
Contemporary public international law has progressed from a purely bilateral conception of State responsibility to accommodate categories of general public interest.10 Principally codified in the International Law Commission’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles), this branch of law governs the attribution of conduct to the State, the responsibility of a State if its conduct is in breach of international law, the responsibility of third States in relation to breaches of international law by another State, and the remedies to be provided in case of such breaches.
Under Articles 40 and 41 of the ILC Articles, all States have legal obligations not to recognise, aid or assist unlawful situations arising out of serious breaches of international law, and to take action to bring such breaches to an end. Article 16 further provides that any State that knowingly aids or assists another State in the commission of a breach of international law is itself complicit in and responsible for the commission of the breach.
These obligations apply to all States as customary international law. In the context of Israel’s actions in the OPT, the International Court of Justice (ICJ) has explicitly affirmed that such obligations fall on third States in relation to Israel’s breaches of the prohibition of acquisition of territory by force, infringement of the Palestinian right to self-determination and violations of the Fourth Geneva Convention.11
Taking into account the UK’s apparent failure to fulfil such obligations, and the distinct lack of any change in its policy following the explicit pronouncements of the ICJ Wall advisory opinion, the idea of legally challenging the UK had been simmering for some time in discussions between Al-Haq and its UK solicitor, pioneering public interest lawyer Phil Shiner.
Israel’s actions in the context of Operation Cast Lead triggered a shift in public opinion worldwide and a heightened realisation of the injustices being perpetrated against Palestinian civilians. Accordingly, despite a slight discomfort at the fact that the first ‘post-Gaza’ litigation to be filed in a foreign jurisdiction would not be against those directly responsible for the commission of war crimes, but rather against a third party, it was decided that one must strike while the iron—or, in this instance, the lead—is still hot.
On 3 February 2009, Public Interest Lawyers (PIL), on behalf of Al-Haq, sent a pre-action letter to the UK Secretaries of State for Foreign & Commonwealth Affairs, for Defence and for Business, Enterprise and Regulatory Reform. Al-Haq called on the Secretaries of State to set out in clear terms what evidence or actions they point to if their position is that the UK has complied with its legal obligations vis-à-vis Israel’s breaches of international law in the OPT, both before and after Operation Cast Lead. On 20 February 2009, a one and a half page response was sent on behalf of the Secretaries of State claiming that they are under no obligation to provide evidence of the UK government’s compliance with the relevant international legal obligations, and that the issues raised relate to matters concerning the government’s foreign policy that are beyond the jurisdiction of the courts.
Following this, PIL and al-Haq filed a claim for judicial review of the UK’s actions in respect of its international legal obligations before the High Court of England and Wales on 24 February 2009.12 The claim is clear in showing that it “concerns the legality of the UK’s ongoing failures to comply with its obligations in the face of Operation Cast Lead, not the merits or expediency of the UK’s foreign policy,”13 and draws on the ILC Articles, the jurisprudence of the ICJ, as well as the provisions of the Fourth Geneva Convention, for its legal argumentation. It demonstrates the UK government’s failure to fulfil its legal obligations, principally in relation to the following serious breaches by Israel of international law:
• denial of the Palestinian right to self-determination;
• de facto acquisition of territory by force; and
• persistent violations of “intransgressible” principles of international humanitarian law
The arguments in respect of each can be summarised as follows:
Denial of Self-Determination
Over its 42 year occupation of the West Bank, including East Jerusalem, and the Gaza Strip, Israel‘s denial of the Palestinian right to self-determination has been comprehensive. Through its prolonged military occupation and violation of the territorial integrity of the OPT, its illegal settlement policy, obstruction of Palestinian permanent sovereignty over natural resources and restrictions on Palestinian cultural expression, Israel has prevented the population of the OPT from freely determining its political status and freely pursuing its economic, social and cultural development. The right to self-determination is established in international law as giving rise to obligations erga omnes, whereby all States, including the UK, are bound to ensure its realisation.
Acquisition of Territory by Force
The UK is vested with the legal duty, confirmed by the ICJ in the Wall advisory opinion, not to recognise or assist the illegal situation created by Israel‘s purported annexation of occupied East Jerusalem and construction of the Wall in the West Bank, a measure described by the ICJ as potentially “tantamount to de facto annexation”.14 The prohibition on the acquisition of territory through the threat or use of force is one of the pillars upon which contemporary public international law is built, and is universally binding on States.
Persistent Violations of International Humanitarian Law
Al-Haq’s claim is further based on the obligations arising from Israel‘s persistent violations of fundamental principles of international humanitarian law. Prima facie evidence of war crimes amounting to grave breaches of the Geneva Conventions during Operation Cast Lead is cited to demonstrate the most recent examples of such violations. As a High Contracting Party to the Geneva Conventions, the UK has clear international obligations “to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”15 Article 146 of the Fourth Geneva Convention further obliges High Contracting Parties to search for and prosecute perpetrators of grave breaches of the Convention.
In light of these breaches by Israel, all States, including the UK, are legally obliged:
(a) To denounce and not to recognise as lawful the situations created by Israel’s actions;
(b) Not to render aid or assistance or be otherwise complicit in maintaining the unlawful situations created;
(c) To cooperate with other States using all lawful means to bring Israel’s breaches to an end;
(d) To take all possible steps to ensure that Israel respects its obligations under the Geneva Conventions.
The claim argues that despite repeated interventions by Al-Haq advising the UK of these obligations and urging it to take concrete action regarding Israel‘s actions in the OPT in general, and during the military attacks on Gaza during Operation Cast Lead in particular, the UK has failed to take any meaningful steps towards fulfilment of its obligations.
Based on the above, Al-Haq has requested the High Court to order the defendants to take action to meet their obligations until Israel’s breaches of international law cease; in particular, to:
A) Publicly denounce Israel’s unlawful actions in the Gaza Strip and its continuing construction of illegal settlements and the Wall in the West Bank.
B) Suspend with immediate effect the UK‘s arms-related export licensing approval system to preclude UK companies from exporting arms or arms-related products to Israel.16
C) Suspend all UK government financial, military or ministerial assistance either directly to Israel or to UK companies exporting military technology or goods to Israel.
D) Request that the EU suspend its preferential trade agreement with Israel.
E) Call for the High Contracting Parties to the Geneva Conventions to convene with a view to ensuring Israel’s respect for the Conventions.
Epilogue: The Role of Law, and the Impact of the Claim Three Months after Filing
Although recent years have been marked by the examination of the Palestinian-Israeli conflict through an increasingly legal lens, while at the same time legal principles have developed and fora become available to those seeking to make the law heard, such efforts have been denigrated as part of “a one-sided, ideologically-driven campaign to delegitimize and weaken Israel.”17
For a long time kept in the shadows by the overpowering influence of politics, legal work now even finds itself subject to attack on political grounds. Such attacks, however, cannot compromise the integrity of law as an impartial mechanism for the realisation of justice and accountability. Yes, Palestinians commit violations of the law; and yes, Israel is entitled to protect its population through the administration of justice in conformity with established international standards. If Israel instead decides to resort to force in a manner that is impermissible by law, it should not be exempt from judgment itself.
Nor, in the global community of our time, should third States be absolved of their own legal obligations to protect civilian populations that are systematically denied their rights. Feeble calls for peace are insufficient; not least from a country whose colonial policies and legacy had a significant impact on the origin of the conflict. The UK is legally obliged to unequivocally condemn and refuse to recognise the illegal situations Israel has created in the OPT, to cease rendering aid and assistance to Israel in the forms of arms-related exports, financial assistance and preferential trade, to bring perpetrators of international crimes to account, and to take meaningful positive actions towards the implementation of the Palestinian right to self-determination.
Before Al-Haq filed its case, the UK government refused to accept that it should be made to answer to those obligations before its courts. The State did submit its response to the claim, however, and preliminary hearings on issues of jurisdiction and standing took place in the Queen’s Bench Divisional Court in June 2009. A decision on those preliminary issues is expected by September 2009. It is worth taking note of related developments that have come about in the UK in the short period since the claim was filed. In March 2009, the British Foreign Office informed its Israeli counterpart that, contrary to previous diplomatic assurances, it will not change UK legislation that allows arrest prosecution of alleged war criminals.18 In April 2009 David Miliband announced that the UK is to review all of its military exports to Israel.19 Small steps, perhaps, but steps in the right direction.
The case continues.
Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self‑determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
* John Reynolds is a legal researcher for Al-Haq, the West Bank affiliate of the International Commission of Jurists
Note: On 29 July 2009, the Divisional Court in the High Court of Justice of England and Wales rejecting Al-Haq’s application for permission to seek judicial review of the UK Government’s actions in light of breaches of international law by Israel in the Occupied Palestinian Territory (OPT). See the Al-Haq statement at http://www.alhaq.org/etemplate.php?id=468.