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Announcements
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Media Perspectives
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Events
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Publications
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Accountability of the Hamas under International Humanitarian Law
Sigall Horovitz
In order to best protect civilians and other individuals not taking part in the hostilities, IHL imposes obligations not only on states but also on non-state actors, such as individuals and organized armed groups. But it is hard to identify the IHL obligations which bind the Hamas because of the difficulties involved in classifying the Israel-Hamas armed conflict as international or non-international. Some normative development may be needed to clarify the state of the law in this respect. In addition, contemporary means and methods of warfare may require further normative and institutional developments in order to better achieve the goals of IHL.
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Libel Tourism: International Forum Shopping for Defamation Claims
Avi Bell
This briefing paper examines the promise and peril of libel tourism – the practice of suing in a court outside the claimant’s home country in order to increase the likelihood of winning a libel case. Libel tourism has reached the headlines recently due to an increase in the number of persons who have discovered the advantages of bringing libel actions in England. In the last decade, Roman Polanski (an American living in France) brought a successful libel action against Vanity Fair (an American magazine), Khalid Bin Mahfouz (a Saudi who also holds Irish citizenship) brought numerous libel actions with some success against defendants from around the world, Boris Berezovsky (a Russian) succeeded in persuading the House of Lords of his right to sue Forbes (an American magazine) and Rinat Akhmetov (a Ukrainian) successfully sued Kyiv Post and Obozrevatel (two Ukrainian internet journals). The practical result of the liberal English approach towards foreign libel claims is to chill speech throughout the world. Everyone who publishes a statement that will appear on the internet, or in a book that can be sold in England, must be aware that an English court will be ready to entertain a libel suit against the writer, subjecting him or her to the pro-plaintiff English legal standards.
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Piracy and International Law
Eugene Kontorovich
For centuries, aggressive international enforcement, facilitated by a legal regime that was the model of international cooperation, has been key to suppressing piracy on the high seas. Today, as a long-simmering piracy problem boils over off the Horn of Africa, nations have begged off from enforcing the law against this group of international criminals that threatens to bring much of international shipping to a standstill. The global shirking of prosecutorial responsibility is particularly hard to square with the eagerness with which the same countries have sought to prosecute much more complex and politically sensitive offenses. Coming at a time when increasingly bold claims have been made about international law’s ability to resolve massive problems like genocide and decades-long ethnic conflict, its incapacity to deal with the international equivalent of ordinary street crime.
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Blog
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Summaries from International Law Conference
Editor
24/06/2009
On June 18, 2009, the Global Law Forum hosted a conference entitled Hamas, the Gaza War and Accountability under International Law. It featured many prominent speakers who discussed issues under international humanitarian law concerning non state actors, proportionality and self-defense. This blog features summaries of their presentations.
More...
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Ask the expert
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Sovereign Status of Gaza
Question :
If Gaza is not occupied, does that mean Gaza has separate sovereign status? If they have no connection, what is your opinion-does Gaza have separate sovereign status?Is having "separate sovereign status", synonomous with being "sovereign territory"?
Answer :
Territory must have separate sovereign status in order to be occupied. One cannot occupy one’s own sovereign territory.
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"Occupation" of Gaza
Question :
In your article titled "International Law and the Fighting in Gaza", you wrote that Gaza is not occupied because, Israel doesn't perform significant government functions and that Gaza was never Egyptian territory. However, whether Egypt's invasion was illegal or not, didn't Egypt still occupy Gaza, therefore making it Egyptian territory?
Answer :
You have matters precisely reversed. Egypt occupied Gaza, and therefore by definition, it was not Egyptian territory.
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UN Security Council Resolution 446
Question :
UN Security Council Resolution 446 states that the Israeli settlements in the occupied territories are illegal. The problem with this Resolution, is that it bases this on Article 49 of the 4th Geneva Conventions, which only speaks about the forcible transfer of its population to occupied territories. It is therefore no wonder that this resolution was issued when Jimmy Carter was president. The only question I have on this is: International law is international law. Doesn't Israel have to abide by this resolution despite the probability that it is biased against Israel?
Answer :
Security Council resolutions do not create international law. They may, under certain circumstances create binding legal obligations, but Resolution 446 is not one of those cases.
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Rhetoric Versus Action
Question :
I just watched the beginning of your video presentation on the website on the fighting in Gaza:
You said: In all the main media outlets it was reported that the war began on December 27, despite the fact that it was Hamas who announced a week previously that it was terminating the cease-fire. Hamas also declared its intention to subject thousands of additional Israelis to the threat of rockets. This sounds like rhetoric is equal to action. Is it enough that Hamas declared its intent to strike? It makes me think of the movie "Minority Report" where people were arrested before they committed crimes.
How do you differentiate between rhetoric (Hamas talking trash) and incitement and intent to attack?
Answer :
Hamas didn't merely threaten. It launched more than a hundred rocket and mortar attacks on Israel in the week preceding December 27 as part of its plan to wage war against Israel.
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The Legality of “Blockading” Gaza and Israel
Question :
I am very interested in the Arab-Israeli conflict and the legalities and illegalities of both sides, so I would appreciate it tremendously if you can help me out on a few questions that I have. How can a blockade of Gaza be legal, if Egypt's blockade of the Straits of Tiran in the 1967 war is illegal? On that note, in the report [of Avi Bell & Justus Reid Weiner], you wrote that if Israel occupies Gaza, then the border separating Gaza and Israel is an international border, and no country must open up its international borders. But if this is so, then wasn't Egypt's blockade of the Straits of Tiran legal?
Answer :
Egypt had the right to control trade across its borders, but not through the international waters of the Straits of Tiran.
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Partition Plan
Question :
Many say (in response to the claim that the Arab refugees have a right of return), that Resolution 194 was a General Assembly Resolution and therefore is only a suggestion, and carries no weight. It therefore does not constitute a RIGHT of return. Although, Israel has other legal rights to exist, can the Partition Plan be one of those legal RIGHTS (since the Partition Plan was only a General Assembly Resolution)?
Answer :
The General Assembly resolution recommending the "Partition Plan" (General Assembly resolution 181) demonstrates that the General Assembly supported the establishment of a Jewish state in at least part of the remaining territory of the British mandate of Palestine which had previously been designated for the creation of a Jewish homeland by the League of Nations. This is an interesting fact, but if the General Assembly had never passed the resolution, it would not in any way affect the legality of Israeli statehood.
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Legal Weaponry
Question :
What right do Israel, Egypt or any country have to limit what weapons are brought into Gaza? I understand that the use of those weapons against Israeli civilians is an act of war. But what is the legal or moral basis for any third power stopping their import in the first place? Surely now that Gaza is “on its own,” its rulers are entitled to bring in whatever weapons they wish, as an exercise of sovereignty. Neighbors can complain about their use, but not against their possession as such.
Answer :
States not only have a right, but a duty to prevent arms from reaching terrorist groups like Hamas and the other Palestinian terror groups operating in Gaza.
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Israeli and Gazan Borders
Question :
I just read your excellent article explaining how by closing its own borders, Israel is not committing "collective punishment" on the Palestinians. My question to you, which may be one of semantics, is this: Critics of Israel say Israel is blockading Gaza's borders, as well as closing Gaza's waterways. Is Gaza's border and Israel's borders one and the same? In other words, is there one common border between Gaza and Israel, or, is Israel closing her own borders AND closing separate Gazan borders?
Answer :
Gaza has land borders with two countries: Israel and Egypt. Israel has partially closed its own borders with Gaza. It has no presence on Gaza’s border with Egypt. While Egypt has legal obligations to Israel and other states to prevent certain types of material and persons crossing into and out of Gaza, Egypt’s decision to completely seal the border with Gaza is its own and not attributable to Israel. For more on Egypt’s actions toward the Gaza border, see a blog entry on this web site from several weeks ago concerning subject.
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