Wednesday, April 05, 2006

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.


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