Saturday, April 22, 2006

Hamas Legitimises Suicide Bombing: Some Comments

The Hamas reacted to a suicide bombing which killed nine people and wounded 60 others at a Tel Aviv restaurant on Monday by calling it a ‘legitimate act of self-defense’.

Khaled Abu Helal, a spokesman for the Hamas-led Interior Ministry of the Palestinian Authority said in an interview with Associated Press that: ‘We think that this operation (…) is a direct result of the policy of the occupation and the brutal aggression and siege committed against our people’
(see this very useful Boston Globe article at

These statements from members of Hamas have a new quality after the party won the legislative elections in January and took control of the Palestinian Authority last month, as now the official representatives of the Palestinian people are speaking, making it necessary to say some things on the legal situation.

There are many legal problems concerning the applicability and application of international humanitarian law in the Occupied Palestinian Territory. In a previous post I inter alia talked about the question whether there is a state of occupation according to international humanitarian law making at least some norms applicable and (admittedly in an update of said post where I had to correct myself to some degree) about the possibility of a new conflict that has arisen between Israel and the Palestinian people. Taking up my thoughts from that post I want to accept the applicability of international humanitarian law for the purpose of this post.

What I don’t want to do is to talk about the question whether Israel or the Palestinians are fighting a legally acceptable fight or not, I only want to talk about the legality of suicide attacks, especially against civilians, under international humanitarian law.

Concerning suicide attacks it has to be said that they, as such, are not prohibited under international humanitarian law; they are, in particular, not some sort of prohibited treachery or perfidy. Such tactics have been employed, for example, by the Japanese at the end of World War II, especially with the Kamikaze attacks of aircrafts on Allied warships, and it seems impossible to differentiate between suicide attacks (that some possibly want to prohibit) and other situations occurring in wartime situations, for example with soldiers sacrificing themselves for their comrades.

But one thing is totally clear:

From the position of international humanitarian law there is nothing legitimate in attacking civilians, in no conflict whatsoever.

Any intended attack on the civilian population, civilians not participating in hostilities or civilian objects is clearly prohibited under international humanitarian law. This fundamental principle of humanitarian law today is explicitly laid down in Arts. 48, 51 para. 2, 52 para. 2  First Additional Protocol of 1977, but it was already the foundation for many earlier norms (see for example Art. 25 of the Hague Regulations of 1907) and therefore without a doubt has to be seen as part of customary international humanitarian law. (See Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, p. 3 et seq.)

Such attacks on civilians and statements like that given by the Hamas are unbearable, morally as well as legally.

Thursday, April 20, 2006

ICC Update

Because Björn is for the moment not able to post on the developments at the ICC for policy reasons (See his post inter alia in this regard), I would like to refer our readers to a post by Kevin Jon Heller at Opinio Juris: ICC Update.        

One Guantánamo Inmate May be British, and May be Freed

Further to the list of Guantánamo inmates linked by Nicki below, there may well be a change in one the listed cases fairly soon, due to two recent decisions by English courts: R (Hicks) v. Secretary of State for the Home Department [2005] EWHC 2818 (Admin) (High Court of Justice, Queen’s Bench Division, Administrative Court, before Collins J), Secretary of State for the Home Department v. Hicks [2006] EWCA Civ 400 (Court of Appeal, Civil Division, before Pill, Rix and Hooper LJJ).

One of the Guantánamo inmates is Mr David Hicks, who was captured by Northern Alliance forces in December 2001 and transferred to Guantánamo Bay in January 2002. He admitted that he had been to training camps in Afghanistan and that he there received training in weapons and guerrilla warfare.
Mr Hicks was until recently believed to be of Australian nationality, and of Australian nationality only. This did not present the Bush administration with any serious difficulties, as the Australian government had declared that they would in no way challenge the detention of any Australian citizens at Guantánamo Bay, believing that the detention and the planned prosecution before Military Commissions were permissible.

However, Mr Hicks found out recently that he was, by reason of descent, eligible to be registered as a British citizen. This obviously held great appeal for him, because the British government has long been particularly unhappy about US plans in relation to Guantánamo Bay, and has already used its influence to secure the release of British inmates.
Mr Hicks therefore applied to the Secretary of State for the Home Department to be registered as a British citizen. The application was refused on grounds specified in the relevant British Act of Parliament, the British Nationality Act 1981.
Mr Hicks applied to the High Court for judicial review of this decision, and was in the event successful. While the judgment of Collins J of 13 December 2005 is mainly concerned with fine questions of construction of the British Nationality Act 1981, it does make fascinating reading in some parts. In particular, Collins J, a notable international lawyer (otherwise known as Sir Lawrence Collins), made very clear quite what he thought of the regime imposed by the US administration at Guantánamo Bay.
For example, he said that ‘[t]he Military Commission quite obviously does not provide the missing remedy and in any event it is itself an entirely unsatisfactory and potentially unjust means of trying and possibly ordering the very lengthy imprisonment of the claimant’ (para. 12 of his judgment).
More relevantly, he concluded his judgment by stating that ‘[o]nce he is a British Citizen, he should be entitled to all assistance which can be given to a British citizen. There is no doubt that Her Majesty's Government has a discretion as to what assistance should be given (if any) in a given case. But in my view it would be improper to fail to give assistance which would otherwise have been given simply because the claimant was believed to be involved in terrorism and has not had any previous connection with this country’ (para. 39 of the judgment).

The Court of Appeal gave its judgment last Wednesday (12 April 2006), and for its part dismissed the appeal brought by the Secretary of State.
The Court of Appeal did not decide whether the Secretary of State could lawfully revoke Mr Hicks’ citizenship, once it has been granted in accordance with the judgment, so this remains a possibility. However, the Court did decide that Mr Hicks could not be deprived of British citizenship because of the things he had done in Afghanistan in 2000 and 2001. These could only be relevant if he continued to hold views disloyal to the United Kingdom after his registration as a British citizen, and if he said or did anything to this effect from that moment on, for example by expressing approval of his past deeds. A fresh assessment by the Home Department was held to be necessary.
It remains to be seen whether the Secretary of State does find sufficient evidence of any remaining disloyalty to the British Crown, and if any possible decision to revoke Mr Hicks’ British citizenship survives challenges in the English courts.

For now, it appears to be likely that the British government will come under considerable public pressure to also secure the release of Mr Hicks from US custody. Indeed, such a request will probably be formally addressed to the Secretary of State for the Foreign and Commonwealth Office by Mr Hicks’ lawyers, and any refusal on his part may again be reviewed by the courts: see R (Abbasi) v. Secretary of State for the Home Department [2002] EWCA Civ 1316, [2003] UKHRR 76.
Whether the US government will play ball is, of course, another matter entirely.

How interesting to see that Guantánamo Bay leads to so much litigation even in countries other than the United States.
The courts of the United States, in turn, would do well to note that their decisions are closely watched by many other judges around the world.

Pentagon Issues List of Guantánamo Detainees

The pentagon released a long list, probably the most extensive list until now, of detainees that are or were held at the U.S. operated prison in Guantánamo Bay. (See this BBC-News Article, US Releases More Guantanamo Names; See also the copy of the list and this article on which I found through Opinio Juris.)

The list includes the names and nationalities of 558 detainees. All of them are part of the first official roster of detainees who passed through the Combatant Status Review Tribunal process in 2004 and 2005 to determine whether they should be deemed ‘enemy combatants.’

520 of the listed detainees have been found to be ‘enemy combatants’ by said tribunals, a rather doubtful position under international humanitarian law. According to the US legal position, the status of enemy combatant is equivalent to that of an unlawful combatant which is, again according to the US legal position, a status in between combatants and civilians, giving the detainees neither the rights of an prisoner of war, who inter alia has to be released after the actual fighting ends, nor of a civilian, who has to be indicted for a criminal offence immediately (see for the US position the Supreme Court Case, Ex parte Quirin, 317 U.S. 1, 35 (1942), in which the court developed the position; see also on the current situation US Fact Sheet: Status of Detainees at Guantanamo, February 7, 2002 and White House Presidential Letter, 19 September 2003).

Even if, according to international humanitarian law, there is no status between combatants and civilians (Unlawful Combatants have the primary status of civilians, who have lost their protection under international humanitarian law as they directly participated in hostilities, and as they don’t have combatant immunity they could be indicted under national criminal law for all acts committed, but they have to be indicted. See Knut Dörmann, ‘The legal status of “unlawful/unprivileged combatants”’, RICR 85 (2003), pp. 45, 50, 56; Knut Ipsen, in: Dieter Fleck, The Handbook of Humanitarian Law, Oxford 1995, p. 65) the US is still holding to their position and using it, as can be seen from the list.

38 of the detainees have been found to be non-enemy combatants and 28 of those have been released already.

The release of the list by the Pentagon is the outcome of a court proceeding filed by the Associated Press under the Freedom of Information Act. As I already posted on a proceeding obliging the US to release pictures from Abu Graibh it becomes obvious that much is going on in the US concerning civil rights proceedings and it will be interesting what else will be decided by the US courts in this matter.    

Tuesday, April 18, 2006

Distinctive Emblems Post No 4: The Protection of the Distinctive Emblems and the Gaming Industry

After Post No. 1 of this serial Post addressed the current developments concerning the distinctive emblems in international humanitarian law, Post No. 2 described the function of said emblems in international humanitarian law, and Post No. 3 turned to the adoption of the third additional protocol, the establishment of the Red Crystal as a new distinctive emblem, Post No. 4, the last Post in this series, will now address the protection of said symbols and the action taken by some Red Cross Societies against the gaming industry (see Post No. 1 for a summary on the situation).

Concerning the protection of the distinctive emblems and their uses through legal norms, one could perhaps derive from the existence of two different functions that there is also a distinction to be made between different abuses of said emblems.
An abuse of the distinctive emblem affecting its first function, the protective one, is by far the more serious one. In armed conflicts, those abuses may gravely endanger human lives as it would undermine the guarantee the emblem grants. Therefore it is obvious that the distinctive emblems have to be especially protected in armed conflict situations. Accordingly, Art. 38 et seq. of the First Geneva Convention of 1949 give a detailed account of who is entitled to protection under international humanitarian law and thus to wear the Red Cross etc. in international armed conflicts. Additionally, the treacherous misuse of that emblems equates to a prohibited perfidy in war with the corresponding consequences (see inter alia Art. 38 of the First Additional Protocol of 1977), and a war crime according to Art. 85 para. 3 lit. f of the First Additional Protocol.
But what norms are protecting said emblems in peacetime, where “only” the second function of the emblems is concerned, and why. According to Art. 44 of the First Geneva Convention, use of the distinctive symbols is allowed only as it is provided for in the Convention, in wartime as well as in peacetime situations. This includes, according to para. 2 of Art. 44, the peacetime use for all operations of the national Red Cross societies, while Art. 53 of the First Geneva Convention explicitly prohibits any use of the distinctive emblems by individuals, societies, firms or companies either public or private not entitled thereto. Art. 54 of the First Geneva Convention obliges states to take the measures required to prevent and repress at all times any misuse of the emblems. The most relevant norms read:

Art. 53. The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation " Red Cross " or " Geneva Cross " or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.…Art. 54. The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53

Already Art. 27 of the 1906 Geneva Convention required states parties to enact legislation criminalizing the unauthorized peacetime use of the Red Cross emblem with very clear words:

Art. 27. The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trade-marks or commercial labels.

In compliance with these provisions, there are many national laws protecting the emblem. As I know from the letter of the CRC, in Canada these norms are Art. 44 and 53 of Schedule 1 of the Geneva Conventions Act, Section 4 of the Canadian Red Cross Society Act and Sections 9 (1) (f), 10 and 11 of the Canadian Trade-marks Act. In the United States, 18 U.S.C. 706, which protects the Red Cross symbol as a trademark and makes an illegal use of the emblem punishable by six months in jail and a fine of up to $ 500, fulfils the international requirements. In Germany, § 125 OWiG makes the abuse of the Red Cross emblem a summary offence for which a fine can be imposed.

What are the reasons behind those norms? As they are also protecting the emblems from the dangerous misuse in a wartime environment, mainly misuses that are below the threshold of a perfidy, the necessity for protective norms is obvious. Concerning peacetime abuses it seems that there was and is a fear that an unlimited use of the emblems even in a peacetime environment could question their undoubted protective value in the wartime situation, that if the Red Cross would be a too common sight the necessary respect would diminish. All protective norms aim to guarantee that the Red Cross is only connected with the Red Cross movement and the protection it grants in armed conflict situations.
The ICRC Commentary on the First Geneva Convention concerning Art. 53 for example says:

“B. ' Indicatory sign '. -- Although the first care must be to safeguard the protective sign, misuse of the purely indicatory sign must also be relentlessly put down, as it does serious harm to the Red Cross movement [p.385] and diminishes the prestige of the emblem. The public, seeing the red cross on articles that have nothing to do with any form of charitable work (9), may fail, in other circumstances of the most vital importance, to recognize its inviolable character.”

( Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 384 et. seq.)

One possibly could question this fear, saying that the universal knowledge of the Red Cross adds to the protective value. In my opinion however, the Red Cross has to be protected and the norms have their value. The Red Cross was invented as a protective sign and even if the indicative function was added later in order to identify those connected with the Red Cross movement, the protective function remains the main idea behind the symbol and the norms protecting it. Besides, that peacetime misuses could also undermine the protective use as such; the indicative function should therefore be seen as a historical consequence of the protective one. The Red Cross Societies are meant to be a main actor in providing humanitarian aid in wartime situations as it was seen as the first organisation to assist the medical services of the states armed forces, as such explicitly mentioned in Art. 44 of the First Geneva Convention (see also Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 328 et seq.). Additionally, the Societies have the duty to promote the humanitarian thought in peacetime environments inter alia through educational measures in humanitarian law. Those functions make it totally rational to let the Red Cross Societies use the emblems even in peacetime situations in order to connect them with their humanitarian mission and in order to connect their humanitarian work with the symbol, to promote the protective use of the symbol even in a peacetime environment, but only as an exception.
There are other exceptions for uses of the Red Cross Symbol as marking the position of first-aid posts intended exclusively for the free treatment of sick or injured civilians or marking motor ambulances, but all exceptions also have a use for the protective function of the emblems.
As again the commentary on the First Geneva Convention puts it:

“But, at the same time, the advantages must be kept in mind. The red cross has become, in people's minds, the universal symbol of impartial aid to all who suffer, and the welfare work done by the Red Cross, under the cover of the emblem, amongst the population as a whole, benefits by the standing the emblem has acquired as a symbol of immunity. Conversely, esteem for the Red Cross heightens the prestige of the protective sign.”

(Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 330)

Unlike the use of the Red Cross by the Gaming Industry, these are strictly regulated and controllable exceptions.

While the opinions on said question may differ, the cited norms, however, are in force. The states obviously are, or were, of the opinion that the Red Cross has to be protected even in a peacetime environment and I think, without getting to positivistic, this is the law as it is.

In the case of the gaming industry one may therefore conclude that the CRC and the BRC are only acting within a legal framework set up by the states. To some degree one could even say that it is the duty of the Red Cross Societies to protect the distinctive emblems.

What is wrong is the often-heard assumption that the Red Cross is only protected against economical uses (i.e. on products), which is not the case in computer games; every misuse is prohibited, as should become clear from the cited norms.

The only question therefore is why the Red Cross Societies are acting only now. I think that the Red Cross Symbol is used in computer games for more then, I don’t know, 16 years now. It is quite understandable that the gaming community is curious about possible connections with the computer game bashing that is politically en vogue today. Too much violence, far too much sex etc., are often heard accusations today (I am not a gamer, nor a total absentee so I am nearly neutral).

The first question that has been raised in that context is why the Red Cross Societies are only acting against the Gaming Industry and not also against, for example, the movie industry or the producers of health kits using the Red Cross.
In answering this question, it has to be said that the Red Cross Societies are not only acting against the gaming industry. As one can see already from a brochure of the Canadian Red Cross the Societies also act against misuses in the health and retail sector, in catalogues, books and magazines, on commercial vehicles etc. To see how far-reaching the activities of the Red Cross Societies are, one should read the article  “Protecting the Emblems in peacetime: the experiences of the British Red Cross Society” by Michael A. Meyer (International Review of the Red Cross, no 272, pp. 459-464) where the author describes the procedure of the protection and some important cases, for example the British Red Cross acting against misuse in the James Bond film “The Living Daylights” or in the health service campaign by the Labour Party (both in the late 1980`s).

The other question, why the Red Cross Societies are acting now is not that easily answered. I have to admit that I do not exactly now how active the Red Cross Societies currently are in acting against peacetime misses of the distinctive emblems.
I can say, however, after some research, that the Red Cross Societies show more activity than in recent years in other cases than that of the Gaming Industry also. In Germany, for example, the Red Cross Society is currently acting against the Rote Hilfe e.V., a private association devoted to paramedical activities around left wing political demonstrations, where, it is thought, a lack of help from the established societies exists. The Rote Hilfe e.V. is using a symbol that shows a Red Cross the upper square of which ends in a balled fist. After the German Red Cross acted in the early 1980’s, several courts denied any danger of confusion and the summary offence proceedings under § 125 OwiG were dismissed.
Currently, after more than 20 years of silence, the German Red Cross raises civil court proceedings against the use of the Red Cross Symbol by the Rote Hilfe e.V. (see on the whole issue: Rote Hilfe  e.V. Online, ‘Die Rote Hilfe e. V. wehrt sich gegen die Unterzeichnung einer Unterlassungsverpflichtung des Deutschen Roten Kreuz (DRK)’).
Here also it is unclear why the Red Cross is acting only now.

I can only guess, but there probably is a connection between establishing the new emblem, the Red Crystal (See Post No. 3), and the Red Cross Societies attempting to more actively protect the old ones. I do not know if there is a general plan behind these protective measures or if the Societies where only stirred up by the Third Additional Protocol, but the assumption that there is some sort of connection is not so far off.

Just another Internationalized Tribunal?

Having safely arrived in the "legal capital of the world", I can now finally get back to blogging.
As the ICC (perhaps understandably) has a rather strict policy on publications of staff members and interns and I am still sorting out what is okay to post and what, I will for the moment not post on new developments at or concerning the Court, but limit myself to other developments in international law.

As reported by the Lebanon Daily Star, Cyprus might be the host country for a UN-Lebanese mixed tribunal to try those suspected of being involved in the assassination of Premier Rafik Hariri. This is in the wake of Security Council Resolution 1664 of 29 March, urging Secretary General Kofi Annan to negotiate the necessary agreements for the establishment of such a court with the Lebanese Government.

At first glance, this may seem like just another step in the proliferation of internationalized tribunals - following on the heels of others in Sierra Leone, East Timor, Cambodia etc.
However, what would set this proposed court apart from such other internationalized tribunals is that it would not be concerned with "core" crimes such as crimes against humanity or war crimes, but "only" with one count of murder.

It seems to me that this is indeed a rather new development - if I am not missing something, the UN has only really been involved in a non-core crimes-related trial/court once, namely in the case of the so-called Lockerbie trial concerning the bombing of Pan Am flight 103 over Lockerbie/Scotland - and this was technically a national trial by a Scottish court, even if it was sitting in the Netherlands (the judgment is available here).

I am not quite sure what to make of this development yet, but it strongly reminds me of the book I am currently reading, "Between Equal Rights" by China Mieville.
In the final chapter of this very interesting and challenging work, Mieville refers to so-called "liberal cosmopolitanism", which (purportedly or actually) aims at bettering the state of the world through the international rule of law and which, accordingly, leads to a shift of perspective in which international relations become more and more concerned with criminalization and "policing".
Might the proposal of a mixed tribunal dealing with "non-core crimes" be a signal for a step into this direction? And what would one have to make of such a development? Surely something to ponder in more detail - I will hopefully be able to add more on this question (and on the subject of Mieville's book) in future posts.

Hat tip to Kevin Jon Heller over at Opinio Juris.

Wednesday, April 05, 2006

4 April: First International Day for Mine Awareness and Assistance

The figures are horrible. It is estimated by the UN that there are between 15,000 and 20,000 new casualties caused by landmines and unexploded ordnance each year. An estimated 110 million landmines are strewn across the world in more than 70 countries.

Yesterday was the first international day for mine awareness and assistance in mine action and there were some good reports on this occasion, highlighting the situation with landmines especially in Iraq and Afghanistan, where mines cause a particularly high death toll and are impeding reconstruction and peace process.

As I found no time for posting yesterday, I would like to now make a short remark on the legal situations concerning landmines, as our contribution to the event.

The Ottawa Convention (1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or Anti-Personnel Mines and on Their Destruction) obliging states no longer to use, produce, stockpile and transfer anti-personal landmines has been ratified by 150 states, and thus binds a majority of states to abstain from all activities aggravating the problem. As many important states, however, have not ratified the treaty, it is more than questionable if customary law has yet evolved. According to the ICRC Study on State Responsibility (Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, p. 282) it has not.
According to that study, states are obliged under customary international law to use landmines with particular care to minimise their indiscriminate effects (p. 281), to record their placement, as far as possible (p. 283), and to remove or otherwise render them harmless to civilians at the end of active hostilities (p. 285).

Some way to go!!    

U.S. District Court Holds That There is no Armed Conflict in the Occupied Palestinian Territory - or does it??

I found a very interesting post at Opinio Juris yesterday, where Julian Ku reports an opinion by the U.S. District Court in D.C.

This opinion seems to be interesting for international law in general, which it is, and for international humanitarian law in particular, which it is not that much.

I don’t want to talk about the question whether the Palestinian Authority is a sovereign state for purposes of the U.S. Foreign Sovereign Immunities Act, which is broadly discussed in the said opinion and where the court heavily consults international law, but I will confine myself to addressing the second question whether an attack on a civilian bus took place ‘in the course of an armed conflict’, again for purposes of the U.S. Foreign Sovereign Immunities Act.

The first thing to say is that in terms of international humanitarian law the question whether an armed conflict exists in international law decides whether humanitarian law is applicable to a given situation. It is indeed disputed if this is the case in the Occupied Palestinian Territory; the line of this dispute has to be drawn between the Israeli government and the rest of the world, including all the major states, the Red Cross, the ICJ and the Israeli Supreme Court. For a full review of the discussion see this policy review at the IHL Research Initiative (registration necessary!).

The question is one of the interpretation of Art. 2 common to the Four Geneva Conventions, which reads:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The Israeli position is that para. 1 and 2 of Art. 2 have to be read separately, saying that international humanitarian law is applicable first, in international armed conflicts, and second, in situations of occupation, but only if the occupied territory formerly belonged to a high contracting party of the Geneva Convention. (See Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’, Harvard International Law Journal 44 (2003), pp. 93-95; Meir Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government – The Initial Stage’, in id., Military Government in the Territories Administered by Israel, 1967-1980: The Legal Aspects, Jerusalem 1982, pp. 38 et seq.)
According to this position, the established situation of occupation in the Occupied Palestinian Territory is no armed conflict. In situations of occupations, IHL would be only applicable if the occupied territory formerly belonged to a high contracting party, what is not the case here, as Egypt and Jordan merely occupied these territories as a result of the 1948 war, before which the territories were under the British Mandate for the League of Nations. Consequently, Egypt and Jordan did not have actual sovereignty over these areas from 1948-1967, and so Israel did not oust a sovereign power when occupying the OPT in 1967.

The counter arguments are clear. Para. 1 and 2 have to be read together, as Art. 2 ensures the applicability of the conventions in all situations of international armed conflict, including occupation (which thus would be a case of armed conflicts). (See Kathleen Cavanaugh, ‘Selective Justice: The Case of Israel and the Occupied Territories’, Fordham International Law Journal 26 (2003), pp. 944, 945).
Additionally it is brought forward, that according to Art. 1 common to the Geneva Conventions the Conventions have to be respected in all circumstances, and that according to the Israeli interpretation the population of any disputed territory would be left unprotected (IHL Research Initiative policy review).
Furthermore the Israeli position is supposed to defeat the purpose of the IV. Geneva Convention, which is to protect civilians and not the rights of a displaced power. (Thomas Mallison/Sally Mallison, The Palestine Problem in International Law and World Order, Essex 1986, p. 257).
The ICJ held in its Advisory Opinion concerning the Legal Consequences of the Contsrucion of a Wall in the Occupied Palestinian Territory of 9 July 2004 (para 101) that all participants in the war of 1967 were High Contracting Parties to the Geneva Conventions, so that the Geneva Conventions would be applicable anyhow.

A US court decision saying that there is no armed conflict in the Occupied Palestinian Territory would probably support the Israeli government’s position, which until now seems to be a lonely stand.

The second thing to say, however, is that the District Court’s opinion, on this point, holds no implications for the discussion under international law. The court solely discusses if the bombing occurred ‘in the course of an armed conflict’ under the U.S. Foreign Sovereign Immunities Act. It indeed recurs to international humanitarian law in that discussion, but in a way that is an affirmation of the position that international humanitarian law is applicable in the Occupied Palestinian Territory and thus, that there is an armed conflict according to international humanitarian law.

The U.S. District Court states in its opinion on p. 20 that:

‘The Court is persuaded by plaintiffs’ arguments and concludes that the statutory phrase “in the course of” necessarily imposes limitations on what “acts” constitute “acts of war” within the meaning of Section 2333(a) – as defined in Section 2331(4). As a matter of law, an act hat violates established norms of warfare and armed conflict under international law is not an act occurring in the course of armed conflict. An armed attack on a civilian bus, such as the one plaintiffs have alleged in the complaint, violates these established norms.’

There could be no violation of established norms of warfare, however, when no armed conflict exists.     

Update: I think my thoughts until now remained a little below what was required to really understand the nuances of the decision’s actual link to international humanitarian law. It is true that there is broad acceptance that international humanitarian law is applicable to the situation in the Occupied Territories because they are occupied also in the legal sense. According to Art. 6 of the Fourth Geneva Convention, however, because more than one year has passed since the closing of the military operations that led to the occupation, only some norms are still applicable and then only to the occupying power.
As the U.S. District Court’s decision talked about the violation of the laws of war by a Palestinian, there are no implications at all for the mentioned legal dispute between the Israeli government and all the other parties.
There are, however, implications concerning another question.
If there was only a state of occupation leading to an application of international humanitarian law as described, international humanitarian law would not be applicable to actions by the Palestinians.
As the District Court applied international humanitarian law to the situation, it must have accepted another argumentation that substantiated the application of that law also to the actions of the Palestinians. There are two possible argumentations leading to an application of humanitarian law to the Palestinians also.
The first is the acceptance of an internal armed conflict with all the consequences under international law. One has to know, however, that there are difficulties in that position. If we accepted a situation of occupation in the territories, it is at least no situation like the usual internal armed conflict. It may be concerning intensity of the conflict and its duration, but it is not because the disputed territories are not part pf the Israel territory as such.
The other argumentation is more often herd in the international law society. The Palestinians are accepted as a people, have a single leadership with administrative power and with the control over great parts of their territory (the Palestinian Authoroty) etc. Additionally they have concluded treaties with the Israelis (Oslo), the Palestinian Passports are accepted by many states. If you sum up, you could say that we have no state, but a pre-state, and that humanitarian law, at least the customary rules, have to apply to this conflict also.
(See for example Frits Kalshoven supporting this argumentation or the article of David B. Rivkin, Jr./Lee A. Casey/Darin R. Bartram, ‘A Legal Analysis of the Attacks on Civilians and Infliction of Collateral Damage in the Mddle East Conflict, Kthe Federalist Societyfor Law and public Policy Studies’)

The Israelis agued that “Israel is engaged in an armed conflict short of war.” (The First Statement of the Government of Israel to the Sharm El-Sheikh Fact-Finding Committee, Dec. 28, 2000) which is enough for the application of humanitarian law, but says nothing on the question if internal or not.

It’s not clear which argumentation the U.S. Court prefers, but it seems as if the court applied one of them.