Global Security: Israel and the Occupied Palestinian Territories - Foreign Affairs Committee Contents

Examination of Witnesses (Questions 49-59)


11 FEBRUARY 2009

  Q49 Chairman: We shall now resume our session. Professor Scobbie, thank you for coming. We would be grateful if you said a few words to introduce yourself.

  Professor Scobbie: I am the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East at the School of Oriental and African Studies at the University of London. I studied at the Universities of Edinburgh and Cambridge, and at the Australian National University. I have been doing international law for longer than I care to remember. We are probably looking at something like 30 years.

  Q50 Chairman: Thank you very much. You were sitting through some of the earlier session, so you have a flavour of what we were asking there. We are going to focus here on your expertise. May I begin by asking you whether international humanitarian law applies to groups that are non-state actors or non-state groups engaged in armed conflict, such as Hamas?

  Professor Scobbie: Yes, it does. And we prefer to call it the law of armed conflict because if you call it international humanitarian law it tends to give a different flavour to the field.

  Q51 Chairman: Does the law of armed conflict apply in the same way as it does to states or are there differences?

  Professor Scobbie: There can be some differences in the implementation. The basic rules apply. There can be differences in implementation. For instance with prisoners of war, a non-state party might find it a bit more difficult to comply with all the provisions in, say, Geneva Convention 3.

  Q52 Chairman: What about the status of Gaza itself? We heard it described as an occupied territory, although since the Israeli withdrawal there are no longer any Israeli troops occupying the territory. How does that stack up in international law? Does international law apply to an occupied territory like Gaza, whatever its status is, in the same way as it would apply to a state?

  Professor Scobbie: My view and the general consensus among lawyers who specialise in this field is that Gaza remains occupied, despite Israeli disengagement in 2005. There is a difference between the start of an occupation and the termination of an occupation. For instance, in relation to Gaza, Israel is controlling land borders, the airspace and the territorial sea. It is also controlling Gaza's population registry and it really controls what goes in and out. In 2004 the then head of Israeli military intelligence, who was a former air force officer, said, "Our vision of air control zeroes in on the notion of control. We're looking at how you control a city or a territory from the air when it's no longer legitimate to hold or occupy that territory on the ground." That is quite an important statement, because it could be seen as just a change from having boots on the ground to helicopter gunships, drones and the rest of it in the air. It really boils down to the question of effective control. If you look at the situation with Gaza, it really cannot be doubted that Israel still maintains effective control. There is another argument I could use if you want: an argument that really comes from the Nuremberg trials after World War Two, the Israeli High Court itself, in a case called the Tsemel case, and a case before the International Criminal Tribunal for the Former Yugoslavia. It was said that when we are looking at the effects of control we are not necessarily looking for boots on the ground—actual control—but the ability to reassert control easily. If we look at what has happened with Gaza, both in 2006 in relation to Operation Summer Rain and in the most recent conflict, I think it is beyond doubt that Israel can reassert control physically over Gaza whenever it wants to. So taking both those ideas about control over airspace, sea and borders, and the ability to take troops into Gaza, I do not think that we can doubt that Gaza remains occupied.

  Q53 Chairman: And when the Israelis take armed military action in Gaza, what instruments of international law cover that?

  Professor Scobbie: The principal instruments are the Hague regulations of 1907, the Geneva conventions—in particular the fourth Geneva Convention, relating to the protection of the civilian population—and customary international law. Israel is not party to Additional Protocol I of 1977 to the Geneva Conventions, although many of its provisions form part of customary international law, and—as I suspect the question of white phosphorous will come up later—it is not party to Protocol III to the 1980 Convention on Certain Conventional Weapons, which regulates incendiary weapons.

  Q54 Chairman: When you refer to international customary law, what do you mean?

  Professor Scobbie: These are practices that states recognise as having the force of law, even though they have not been codified in treaty form, although sometimes they are codified in treaty form. It is generally called unwritten law, which is a fairly misleading shorthand.

  Q55 Mr Heathcoat-Amory: I want to ask a little more about the status of customary law. In a domestic circumstance, if you break the law there are consequences and there is enforcement. What is customary law if there is no international enforcement mechanism? Israel does not recognise the protocols, and has not signed up to most of the international conventions, and Hamas is not even a state, so what is the point of a customary law that is a set of conventions that are unenforceable?

  Professor Scobbie: They are not unenforceable. In the British system—and the Israeli system is influenced by the British system—customary international law forms part of the law of the land. It is therefore cognisable by courts and in a whole series of decisions the Israel High Court has relied on customary international law when dealing with legal questions that arise out of the occupation. So it is cognisable in domestic courts. On the question about being enforceable at international level, it depends what you mean by "enforceable". There is more to the enforcement of law than doing it by judicial decision. Does that answer your question?

  Mr Heathcoat-Amory: It is good enough for now.

  Q56 Mr Purchase: May I ask a question on self-defence? Is there a case for Hamas, in this case, acting in self-defence by firing rockets into Israel?

  Professor Scobbie: I thought that might go the other way. The International Court of Justice has ruled that self-defence is not a plea that is available when you are dealing with a state and a non-state actor. That was in the advisory opinion on the Ilegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004. That was following earlier jurisprudence in the Nicaragua case in 1986. It is probably a very formal ruling, which needs to be reassessed. The problem was that, in the wall advisory opinion proceedings, the question of self-defence was not argued; therefore the court was prudent in not addressing the issue, but just relying on its previous decisions. That should probably be revised, but it is a question of whether your arguments are before the Court, in order for the Court to have material on which to decide. There were thousands of pages of pleadings, but in the Wall advisory opinion, there were eight lines devoted to self-defence. That is not enough on which to base an argument. If we assume that self-defence is available between a state and a non-state actor, we would probably run into the problem here that self-defence is an exculpatory plea for doing something that is illegal. The thing that is illegal is the resort to force in international affairs. Self-defence is only relevant when a conflict starts, so that one side can claim that it is using force in self-defence, knowing that it is a breach of international law. In the situation that we have here, there has been an ongoing conflict and a situation of occupation for 40-odd years, so I would say that self-defence is not a relevant legal plea. The problem with self-defence is that it does carry emotional freight. It is not a neutral term, but imports all sorts of emotional ideas. Not all actions taken in defence fall under the rubric of self-defence in international law. If we take the situation with Israel, in the Targeted Killings case—2005 or 2006, I think—the Israel High Court said that, since the first intifada, there has been a situation of international armed conflict existing between Israel and the Palestinian entity. I would say, given that there was an occupation, that is evidence of the continuation—consequences or aftermath—of an armed conflict. So, in the situation that we are in now, I do not think that self-defence is relevant, but it is a very narrow legal definition.

  Q57 Mr Purchase: I just want you to unravel something a little for me. It is occupied territory, therefore it would seem reasonable that those being occupied should have some right to rid themselves of their occupiers. More than that, it gets confusing—when you are being occupied, can you claim to be a state of any kind? Given that Hamas was elected to rule the Occupied Territories, do you have a view about whether it would be a credible defence for Hamas to say that, in firing rockets, it was acting in self-defence? Would that be credible? I heard all you said—I am not saying that I understand it all—but is that a credible statement?

  Professor Scobbie: Hamas cannot rely on the doctrine of self-defence. It is a very narrow legal doctrine. Hamas could argue that it was acting defensively, but that is something different. I am going by very narrow legal categories. I think there was another bit to your question, which I missed.

  Q58 Chairman: May I turn it around? The purpose of the question was about whether Hamas had an argument in law that it was carrying out self-defence. What about Israel's response to the Hamas rockets?

  Professor Scobbie: Again, it is not self-defence. There has been an ongoing conflict for many years. The time when you can invoke self-defence is when the conflict starts. Once the conflict has started, self-defence is no longer a relevant legal plea, because it is an exculpatory plea about using force in the first place.

  Q59 Chairman: I am not a lawyer, but are you saying then that any military action taken by either Hamas—or any other Palestinian group—or the Israelis is illegal?

  Professor Scobbie: No. We have an ongoing conflict. What I am saying is that self-defence is not a relevant plea when a conflict exists.

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