GAZA ATTACKS IN INTERNATIONAL LAW & INTERNATIONALCRIMINAL LAW
Dr. El-Hadi Shalluf
Papers presented to the International conference of the Prosecutors
of the Islamic Countries in Association with International Jurists
in Teheran Iran 21-22 and April 2009
BY : Prof. Dr. Hadi SHALLUF,
Hold Ph.D. in Criminal Law and Criminology (Italy) and a Doctorate d’Etat in International Law and International Relations (France)
Post-Doctorate : Common Study Programme on Criminal Justice and Critical Criminology Programme under the Responsibility of European Commission and the United Nations Social Defence Research Institute ( UNSDRI ) with Universities of : University of Rotterdam Erasmus , NL . University of Bologna , Italy , University of Saarland of Saarbrûken , Germany
Member of International Criminal Court (ICC), appointed by the ICC in Darfur Case 2006-2007
Is Professor of Law , Comparative Criminal Law and Criminal Procedures - International Criminal Law
Paris Bar Member since 1989- International Lawyer
President of The Association of Jurists and Lawyers Euro-Arabs . AJLEA- AJAEA
GAZA ATTACKS IN INTERNATIONAL LAW &
INTERNATIONAL CRIMINAL LAW
- Israel , European Union, United Stats of America, declared that Israel has the right to attack Gaza as self-Defence *
- The absence of any reaction of the Security council of the United Nations UNSC, about Gaza attacking **
- International criminal justice, the International Criminal Court (ICC) and Gaza Situation or Gaza case
Here we will do some short analyses about this matter in regarding the International Law and International Criminal law
Israeli has no right to self-defence, specially GAZA
occupied territory by Israel it self
Self-defence: A State of Mind of States
The rule concerning the prohibition of the threat or use of force has been the object of controversy since the early days of its articulation in article 2(4) of the UN Charter
The right of self-defence expressly stipulated in article 51 of the UN Charter. State practice following the adoption of the Charter is marked by numerous instance of resort to armed force
The proliferation of the use of force appears to suggest a prima facie disregard to prohibition , the inadequacy of its preventive force or, even, its
insignificance in “ real world” international relations. However, states have always taken pains at justifying resort to force as lawful by reference to one
of the exceptions to prohibition. In the Nicaragua (Merits) case at the International Justice Court ICJ “ case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA, merits, ICL Rep. 1986- p 14 at p 98, para.186)” :
(In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules and that instance of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but it defends its conduct by appealing to exceptions or justifications contained within the rule itself, than whether or not the State’s conduct it in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule)
The 11 September 2001 event have shown that group of private armed individual, who do not belong to a State apparatus, are capable of unleashing violence of great scale and catastrophic effect. However, the use of force by private individuals is not novel, nor is the identification of an armed group as “ terrorist” ( see Brownlie, Principles of Public International Law, 6th edn. Oxford University press 2003 p. 713) .
What has been novel is the response to such action under the nebulous concept of “ war against terrorism” which includes , but is not limited to, the use of force under the invocation of self-defence ( see Ch. Gray , International Law and the Use of Force . 2nd edn Oxford University press 2004 pp. 159 et seq) . It is argued that terrorist activity constitutes autonomously an “ armed attack” that gives rise to the right of resort to force in self-defence by the victim-state of such activity. In other words the use of force in self-defence against actors that do not constitute states and irrespective of the specific degree in involvement of another stat in their activities ( see Abi Saab, Introduction –the proper Role of International Law in Combating Terrorism, Oxford Hart publication 2004 and see Y. Dinstein ; War Aggression and self-defence 4th edn Cambridge University pp. 201-2008, see also J.Paust The Ie of Armed Force Against Terrorists in Afghanistan , and Iraq .35 Cornell JIL 2002 p.534) .Thus, the perceived necessity to counter terrorism by way of defensive force appears to cast doubt on the inter-state context of regulation of the use of force in international law. The authorization by the Security Council under Chapters VII and VIII of the Charter , concern the legitimization of resort to
force by a state, without specifying expressly that the target of lawful force must always be a state. Chapter VII action authorized by Security Council
may be directed against non stat entities, e.g , the action authorized by the Security Council against the Bosnian Serbs , and UNITA organization in Angola . However, the situation with respect to the target of the exercise of self-defnce is not clear .
a) the self-defnce should be only between States not against armed groups or occupied people
The international law governing self-defence is notoriously controversial . Since the inception of the United Nations in 1945, numerous bothersome issues as to the scope, nature and content of right have continued to plague states and scholars alike. For example , in recent years , the long-standing debate over whether Article 51 of the UN Charter allows for self –defence in response to a threat-rather than an actual use – of force has bee given a thorough dusting of following the 9/11 event war on terror . The flames of this debate were fanned most notably by the controversial Bush Doctrine of pre-emptive self-defnce
The statement of the International Court of Justice ICJ in 2004 “ that self-defnce requires an attack by one State against another State “ this is the opinion of International Court of Justice, and the legal consequences of the construction of a Wall in the Occupied Palestinian Territory advisory opinion of ICJ Rep 2004, p. 135 para 139
b) Self-defence and armed reprisals
A distinction has often been drawn, particularly in the UN era, between two categories of forcible response.
First , one can identify military actions taken in self-defence . These constitute lawful forcible responses , despite the fact that they constitute a prime facie breach of the prohibition on the use of force contained in article 2(4) of the UN Charter.
Such lawful self-defence actions can then be distinguished from what are termed “ Armed reprisals” . Like self-defence actions armed reprisals are forcible responses to a prior breach of an international legal obligation owed to the responding state.
It is clear that an action must be a response to a prior delicat to be considered an armed reprisals ( see M.J. Kelly , time warp to 1945 : Resurrection of Reprisals and Anticipatory Self-Defence Doctrine in International Law – 2003-2004 )
However, in contrast to a response taken in self-defence , there has been general and continued agreement throughout the UN era that the type of unilateral forcible response termed an “ armed reprisals” constitutes as breach of international law
Under the Charter of United Nations , the use of force by way of reprisals is illegal ( see R. Barasotti – Armed Reprisals , in A.Casses ed.. The Current Legal Regulation of the Use of Force 1972)
More recently , with regard to the “war on terror” the universal agreement that reprisals are not lawful
Since the adoption of the UN Charter , the armed reprisals have been explicitly and repeatedly condemned as being unlawful in state practice.
A classic example of such condemnation is a passage from the 1970 UN Declaration on Principles of International Law concerning Friendly Co—operation among States, which expressly hold “States haves a duty to refrain from acts of reprisal involving the use of the force ( see the UN declaration on Principles of International law concerning Friendly among Stats Co-operation 1972, GA Res 2625 –XXXV , and see also the Declaration on the Inadmissibility of Intervention and Interference in the Internal affaires of Stats 1981, GA Res 36/103, which provides that states are obligated to “ refrain from armed intervention … including acts of reprisal involving the use of force”)
In context of Security Council practice, several resolutions have labeled armed reprisals as unlawful , either explicitly or implicitly .
The most quoted example of this is Security Council resolution 188, in relation to British aerial attacks against Yemen 1964. The resolution explicitly condemned reprisals as incompatible with the principles and purposes of the UN Charter
Fundamentally , the conclusion that armed reprisals are unlawful stems directly from the fact that the UN Charter prohibits the use of force under article 2(4)
The only lawful exception to tis outside of the framework of UN use of force is self-defence under Article 51. Therefore a unilateral use of force that is not a Self-defnce action must be prohibited. ( see Levenfeld – Israel’s Counter- Fedayeen Tactics in Lebanon: self-defence and reprisal under modern international law 1982-1983)
It is very clear that in the context of the jus ad bellum , one may distinguished self-defence ( which is a lawful military response to an international delict) and the Reprisals, ( which are unlawful forcible responses to an international delict)
However , whilst actions of armed reprisals have been repeatedly condemned in stat practice as being unlawful, it is unclear from such condemnations what armed reprisals actually constitutes? .
The resolutions of UN bodies that have condemned armed reprisals but do not set out that term means
The question than , is what in fact distinguishes an unlawful armed reprisal from a lawful self-defence action?
It is of little use to have universal agreement as o the lawful nature of armed reprisals if it is not clear as to what such actions actually amount to, and why they are not seen as being distinct from self-defnce actions
Maybe before attempting to answer this question , two points of clarification must made as to what is being discussed in the context , first it possible to envisage a situation where an armed reprisal could be taken in response to non-forcible breach of a prior obligation. I, other word, if stat A breached a trade obligation owed to stat B, and state B responded to this with military force, that response could be termed and armed reprisal.
The distinction between a self-defnce action and this kind of armed reprisal is clear self-defence can only be taken in response to an actual use of force ( see J. Combacau “ the exception of self-defnce in UN practice Paris ed 2007 )
In conclusion, the war against Gaza that not just only war against civil people but also occupied people
Israel has committed crimes and violated the international law and human rights
c) The attacking state: specific intent as a requirement for armed attack
In addition on the notion that the subjective of a state responding in self-defence may influence the lawfulness of their action ( distinguishing self-defence from armed reprisals) , it has been suggested , notably in the jurisprudence of the ICJ, that a degree of intent on the part of the attacking stat must be established before a response may be taken. As we have seen the ICJ appeared to suggest - at the least implicitly – in Nicaragua and in oil platforms, that underling motivation behind a response taken in self-defence should not be taken into account when determining whether that response was lawful ( see Boston college international & comparative law Rev 1981 p 61 -726 IN AN INTERVIEW WITH THE Security of Defence at that time J.R.Schlesinger, it was certainly indicated that the motives of the United States were more the simply defensive). However , in few telling passages, it seems that the ICJ, has reached in inverse conclusion with regard of the intention of attacking state.
Specifically the Court has indicated that the intention of the attacking state is relevant to the question of whether an armed attack has occurred, such a suggestion is rather unique.
The implication of the International Court for Justice, ICJ , is that for an attack to qualify as an “armed attack”, it must not only be qualitatively grave , but must be intended . there are two possible ways in which “ intention” could be applied to an action ostensibly constituting an armed attack.
The first is that the attack must have been intentionally directed against the state invoking self-defence ( or the state upon whose behalf the invoking state claims to be acting collectively ). This is roughly equivalent to the idea of “ specific intent “ in the domestic law of a number of states ( see Law Rev. 1979-1980 - W. Roth “ general vs Specific intent a time for terminological understanding - the term is often employed for example , in the United States , particularly in relation to criminal law ) . The second is a wider criterion ; the action must have been an “ intentional” one generally . Here the perpetrator must have some intent to perform the action at all, in other words to direct it against anyone; this may be termed “ general intent” . The “ intention” requirement alluded to by the ICJ appears to be the former “ specific intent” version. In other words we are not considering whether the action was deliberate, but rather whether it was deliberately directed at the responding state .
The question for the ICJ , it seems very clear, is whether the attacking state “ meant” to attack the responding state. This can be best illustrated by the 2003 judgment in the Oil Platforms case
In the context of the first set of United States attacks against the Iranian platforms , paragraph 64 of the Oil Platforms judgment read /
“ The Court notes first that Isle City [ a vessel flagged by the United States] was in Kuwaiti water at the time of the attack on it , and that a Silkworm missile fired from ( it is alleged) more than 100kl away could not have been aimed at the specific vessel , but simply programmed to hit some target in Kuwaiti waters . Secondly, the Texaco Caribbean , whatever it is ownership , was flying a United States flag, so that an attack on vessel is not itself to be equated with an attack on that State…. There is no evidence that the mine laying alleged to have been carried out by the Iran Ajr , at a time when Iran was at war with Iraq, was aimed specifically at he United States; and similarly it has not been established that the mine struck by the Bridgestone [ a vessel flagged by the United States] was laid with the specific intention of harming that ship or other United States”
Thus, in Oil Platforms, the International Court for Justice ICJ repeatedly indicated that United States failed to prove that the incidents alleged of Iran were intended to harm the United State.
In a similar vein, the Nicaragua merits decision of 1986 , the Court clearly indicated that it saw the motive behind an attack as being relative to question of whether that attack constituted an armed attack ;
“ see the opinion of judge Schweble - Turning to Honduras and Costa Rica.. certain transborder incursions into the territory of those two States, in, 1982, 1983 and 1984 , were imputable to the Government of Nicaragua q; Very little information is however available to the Court “IJC” as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting singly or collectively, to an armed attack by Nicaragua on either or both States “
Certainly the Oil Platforms decision indicates that the International Court of justice believed that the specific intent of perpetrator was relevant to the determination of an armed attack. Indeed, it has been argued that the International Court of Justice put this forward as a determinative requirement for lawful self-defence (see N. Ochoa-Ruiz and E. Salamanca-Aguado Exploring the limits of international law relating to the Use of Force in self-defence -16 EJIL 2005 P 499 at P 514 )
Here we can see that the International Court of Justice ICJ position in Oil Platforms suggests that “ indiscriminate” attacks or attacks directed at a state other than the responding states , are unlikely to give rise to the right of self-defence ( see D. Kritsiotis “ Rules on self-defence in international Law , Memorandum for the Royal Institute of international Affaires, London Chatham House International Law Programme 8 December 2004 p 11)
International Criminal Justice and Gaza
a) universal jurisdiction
First , I think before we talking about the permanent International Criminal Court ICC , we should trying to looking to the Universal Jurisdiction over International Crimes,
Universal jurisdiction is exercised over the relevant crimes in the absence of the connection point between the crime and the forum state .
It is generally acknowledged that such universal jurisdiction currently exists over war crimes, crimes against humanity, torture and genocide.
The 2005 Resolution of the Institute of International Law perceives universal jurisdiction as the primary tool to combating international crimes . As the Preamble of the Resolution states, the primary responsibility with combating theses crimes lies with individual states. The Preamble proceeds to affirm that “ universal jurisdiction is an additional effective means to prevent impunity for international crimes “
This is mean the competence of a state to prosecute alleged offenders and to punish them if convicted , irrespective of the place of commission of the crimes and regardless of any link of active or passive nationality, or other ground of jurisdiction recognized by international law. Most significantly , Article 2 affirms that universal jurisdiction is primarily based on customary international law . The following articles specify the crimes to which universal jurisdiction applies .
In England , the Case of Pinochet , clarified that universal jurisdiction is available in case of breaches of jus cogens , having demonstrated the clear link between the two notions . The decision of Australian Supreme Court in Polyukovich also suggests that universal jurisdiction “ is based on the notion tat certain acts are o universally condemned that , regardless of the situs of the offence and the nationality of the offender or the vistim, each stat has jurisdiction to deal with perpetrators of those acts ( see Toohey J. Polyukhovich v Commonwealth 91 ILR P. 118 ) Nulyarimma affirms that the customary jus cogens crime of genocide empowers all states to exercise jurisdiction over it ( see Nulyarimma 165 Australian law Reports p; 621 at pp 632 )
Universal jurisdiction as one of the important sources of International Criminal Court
This , “universal jurisdiction” has been the legal position since at least 1948, until the creation of International tribunal for former Yugoslavian ICTY to prosecution of crimes committed on the former Yugoslav territory in the 90s
Gaza attack, could be prosecuted before the nationals jurisdictions en application of the universal jurisdiction
b) Globalization of the International Criminal Justice and the creation of ad hoc tribunals by The United Nations , Security council
human societies across the globe have established progressively closer contact over many centuries, but recently the pace has dramatically increased, today we are witnesses of the developing of communication , transportation net, computers etc and cultures circulate more freely . As a result Laws, economies and social movements are forming at the international level Justice it is no more local , it is becoming global . As evidence of what we call today “ globalization of justice “ in development of the concept of individual the individual responsibility and the creation of ad hoc tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR) , special tribunal for Sierra Leone , Special Tribunal for Cambodia, Ad-Hoc Court for East Timor, Special Tribunal for Lebanon, the expanding use of universal jurisdiction in domestic courts and the very important the creation of the permanent International Criminal Court (ICC)
we could saying that the key to understanding how penalties are imposed for war crimes and crimes against humanity under International tribunal for prosecution of persons responsible for serious violation of international laws , international humanitarian law committed for example in the territory of the former Yugoslavia, ICTY ,
in the context in which the tribunal was established , in effect, the first international criminal tribunal o be established by international community since the trial of Nuremberg and Tokyo “ the post-world war II, prosecution particularly the international military tribunal for Far East at Tokyo (IMTEFE) constitute a major historic development I the establishment of individual criminal responsibility under international law” heads of states were no longer given immunity ( precedented only by article 227 of the 1919 Treaty of Versailles Which defined the crimes for which the Kaiser of Germany was to stand trial)
this establishment of ICTY , coming after 50 years of dormancy has therefore, meant that it has basically had to start from scratch in its quest to hold accountable those individuals who committed gross human right violation in the course of the armed conflict in Former Yugoslavia
the sentencing of individuals for war crimes and crimes against humanity I think the new step to the international Criminal law ( see Olaoluwa Olusanya “ Sentencing War Crimes and Crimes against humanity under the ICTY - Europe law Publishing 2005- pp 4 )
I can say that on 25 may 1993, the UN Security Council took the extraordinary and unprecedented step of deciding to establish the International Criminal for the former Yugoslavia ICTY as a mechanism for the restoration and maintenance of international peace and security
Resolution 827 , was an extremely significant innovation in the use of mandatory enforcement powers by the Security Council , and the manifestation of an explicit link between peace and justice, politics and law
But we have not forget that, the creation or establishment , ad hoc tribunals for former Yugoslavia (ICTY) Rwanda (ICTR) , special tribunal for Sierra Leone , Special Tribunal for Cambodia, and Ad-Hoc Court for East Timor, and Special Tribunal for Lebanon was the result of a political decision to activate the legal power and authority of Security Council to enforce another set of international laws-Those regulating the use of force- by creating a judicial institutions with a political mandate,
Here I could say that State and Individual criminal responsibility under international criminal law are not the same thing.
For instance, for and individual to be held criminally liable for an act of genocide under international law, and would have to be prosecuted and punished by an international criminal tribunals , or by international criminal court applying an international criminal statute
In the case of State responsibility, contemporary international law only permits one State to demand that the State committing genocide cease and desist from committing genocide against nationals of the victim State; wipe out the consequences of genocide and restore the situations existing before the genocide; and provide to the victim State ,in its own right and as parens patriae for it is citizens, compensation for the damage and losses caused by another State committing genocide against the nationals of the victims State
In conclusion : Gaza attacks, could be prosecuted before a special International Criminal Tribunal, this Tribunal should be established by the UN Security Council as ICTY, and ICTR.
c) International criminal court ICC, and Gaza case
On 17 July 1998 , the Rome Statute of the International Criminal Court was adopted , 108 countries ratified this Statute
The Rome Statute stipules in articles 12 and 13 the Preconditions of the exercise of jurisdiction , and who’s has the right to exercise
Preconditions to the exercise of jurisdiction
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
Exercise of jurisdiction
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Article 13, is very clear the cases or situations could not be refereed to ICC just only :
1- if the case or situation referred to the Prosecutor by the one or more of States party of the Statute , that mean ratified the Statute of Rome and becoming member and part of the Assembly of States party (Referral of a situation by a State Party)
2- if the case or situation referred to the Prosecutor by the Security Council acting under the Chapter VII of the Charter of the United Nations. The example of this right the Darfur situation , which referred to the Prosecutor of the ICC by Security Council resolution n° 1593 (2005) of 31 March 2005 (Referral of a situation or case by the United Nations Security Council )
3- if the Prosecutor of the ICC, has initiated by him self proprio motu an investigation on the basis of information on crimes within the jurisdiction of the ICC in application of article 12 of Rome Statute , that mean:
- the Prosecutor can not make investigation only concerning a State which becomes a party of the Rome Statute, see the Iraq Case and the answer of Prosecutor, were he declared that he has no competence on the crimes committed in Iraq, because it no a member of the Rome Statute,
- and only crimes committed after the a state becomes a member of the Statute of Rome see the case of Venezuela , the prosecutor reused to do any investigation on crimes committed in Venezuela before it becomes a member of Rome Statute , before ratification de Statute
In conclusions that ICC can not prosecute Israeli leaders for Gaza attacks and crimes committed if there is no resolution from UNSC to reefer the situation of Gaza Attacks
d) Security Council and Gaza Attacks
To prosecute Israelis leaders, the international law should be exercised in application of chapter VII of the United Nations charter as Darfur case Resolution 1593 (2005) or the creation of special international criminal tribunal for Gaza as the establishment of ad hoc tribunals for former Yugoslavia (ICTY) Rwanda (ICTR) , special tribunal for Sierra Leone , Special Tribunal for Cambodia, and Ad-Hoc Court for East Timor, and Special Tribunal for Lebanon
But the real question here who’s control the Security Council and has the right of to exercise the right of veto to abortion any resolution ?
The use of the right of veto by only a permanent member of the Security Council , The UNSC veto system was formalized at the Yalta Conference 4-11 February 1945
It was established in order to prohibit the UN from taking any future action directly against its principal founding members and alies or frieds
By the creation of United Nations Charter in San Fransisco , June 26 ,1945 , the aricle 27 give the right of veto to only 5 countries , France, UK, USA, Russia and China
The United States and allies France and United Kingdom was abortion more than 36 times in 41 years, all resolutions projects concerning the occupied Palestinian against Israel
In Gaza attacks, US blocks all the time UN Security Council to take any action on Gaza or about Palsetienan situation
I should say The United States even blocked approval of a UN Security Council statement calling for an immediate cease-fire between Israel and Hamas and expressing serious concern at the escalation of violence following Israel’s ground attack in Gaza and U.S. abstains, even when the U.N. Security Council Calls for Cease-fire on Jan. 8 2009 and adopted a resolution calling for a cease-fire in the Gaza Strip, “ the 15-nation council adopted the resolution by a vote of 14 to 0.former Secretary of State Condoleezza Rice cast the sole abstention but said the United States supports the text and objectives of the resolution”.
In conclusions , the ICC, can not be able to exercise jurisdiction to the Gaza Attacks with out resolution should be adopted by UNSC in acting under Chapter VII of the Charter of the United Nations, to referral the Gaza case to the ICC as Darfur case in adoption the Resolution 1593 (2005) of 31 March 2005 (in acting in application of articles 13 and 16 of the Rome Statute and of the agreements “ between ICC and UNSC” referred to in Article 98-2 of the Rome Statute) .
For that reason , I think that the best way we need to asking for international justice to Gaza , by the way we should Appling for the creation of one Special International Tribunal for GAZA.
That Tribunal will be a similar of the creation and establishment, of ad hoc tribunals by the UNSC resolutions, like Tribunals, for former Yugoslavia (ICTY) Rwanda (ICTR) , Special Tribunal for Sierra Leone , Special Tribunal for Cambodia, and Ad-Hoc Court for East Timor, and Special Tribunal for Lebanon
We should ask, The International Community , the UNSC for one resolution to establishment an International Tribunal for Gaza , it will be named, the Special International Tribunal for Gaza .