Examination of Witnesses (Questions 49-59)
PROFESSOR IAIN
SCOBBIE
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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