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Ask The Expert Archive :

Sovereign Status of Gaza
12/03/2009
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
11/03/2009
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
03/03/2009
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
03/03/2009
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
03/03/2009
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
02/03/2009
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
23/01/2009
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
22/01/2009
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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UNRWA School
20/01/2009
Question : After Israel attacked another UNRWA school, killing two children, John Ging, the Gaza director of UNRWA said, “these two little boys are as innocent, indisputably, as they are dead. The question now being asked is: is this and the killing of all other innocent civilians in Gaza a war crime?” How can you deny that Israel committed a war crime?
Answer : I have to give this to Mr. Ging. The boys were innocent. They are dead. And people are asking whether Israel’s strikes, in which innocent people died, are war crimes. The problem is people are asking the wrong question. Hamas likely committed the war crime of civilian shielding. And UNRWA is likely acting contrary to the law by providing passive support to Hamas and other terrorist groups. Israel, on the other hand, likely fully abided by the law.

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Missile Attacks from Gaza: Israeli Response
30/12/2008
Question : The on-going missile attacks from Gaza – does Israel have a right to strike back under the Law of Belligerent Retaliation within civilian parameters? (from Mustafa Latif-Aramesh)
Answer : Israel does not aim any strikes at purely civilian targets. Instead it aims its strikes at military targets and military support targets.

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Security Council Resolution 446
29/12/2008
Question : Security Council Resolution 446: is it valid binding international law? Are all Security Council resolutions binding? (from Mustafa Latif-Aramesh)
Answer : Security Council Resolution 446 from 1979, which purports to “affirm” that the Fourth Geneva Convention applies to “territories occupied by Israel since 1967” and dubs Israeli settlements in the territories illegal, is an attempt to make a judicial determination, and is therefore probably outside the jurisdiction of the Security Council. Even if the Council had jurisdiction to make such a determination, it adopted the resolution by authority of Chapter VI only. This means the resolution is, at best, a recommendation and is not “binding.”

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Gaza Operation
28/12/2008
Question : Is Israel violating international law in its counter-attacks on Gaza this week? UN Secretary General Ban Ki-Moon has condemned what called "excessive use of force leading to the killing and injuring of civilians" and implied that that Israel was violating international humanitarian and human rights law.
Answer : Ban's implied condemnation of Israel is without merit. Some Palestinian civilians may have lost their lives in Israel's counter-attacks, but this unfortunate development is not an Israeli violation of international humanitarian law. IHL requires that combatants aim their attacks at military (and support) targets rather than civilians. Israel has abided by this law by attacking Hamas training bases and command and control centers.

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Btselem
30/10/2008
Question : B’Tselem recently issued a joint report with HaMoked saying that Israel is violating international law right by restricting travel between the West Bank and Gaza? Are they right about the law?
Answer : As one might expect from both B'Tselem and HaMoked, the report's accusations of Israeli violations of international law are groundless. Article 12 of the Covenant on Civil and Political Rights and Annex I to the Interim (Oslo) Agreement reserve to Israel the rights to restrict travel for security reasons, which are obviously important now that Hamas has taken control of Gaza. But nowhere in the report do the words “Hamas” or terrorism appear and there is no acknowledgement of Israel’s legal security rights or of any security challenges. More...

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