In February 2010, Avichai Mandebilt, the IDF’s chief military advocate-general was quoted in a diplomatic cable as saying that a successful Palestinian Authority attempt to take Israel to the International Criminal Court (ICC) on charges of war crimes would be considered an act of war by the IDF.
The statement can be perceived as rather bizarre for two reasons. First and foremost, the Palestinian Authority has no real ability to take any case to the ICC; its advances have been rejected every time and don’t exactly look set to improve with the breakdown of the PA’s unity deal. Secondly, and perhaps more alarmingly, the statement exhibits hostility towards the international legal system, which is certainly a worrying trait in relation to the IDF’s top legal position. Nearly one week ago, Danny Efroni replaced Mandebilt, however it is fair to assume that Efroni inherited a staff that possesses not-so-subtle traces of Mandebilt’s positions, ideals and political culture.
The problem with this outward hostility towards the recognized principles of international law is that, while Security Council vetoes may prevent full membership, the majority of states in the UN General Assembly have made clear their intentions to grant the Palestinian Authority non-member state observer status in the UN.
So regardless of what materializes in the UN Security Council, the Palestinian Authority will soon be a recognized state in the UN General Assembly and fall under the ICC’s jurisdiction. Consequently, Israel will then be susceptible to legal action from the Palestinian Authority, and may be caught off guard as they are marched to court on war crimes charges – which the IDF will consider a declaration of all-out war. At least, this is what fear-mongers would have the world believe.
However, the Palestinian declaration of statehood has the potential to shift the legal landscape of the Israeli- Palestinian conflict so radically that all of these concerns will become an afterthought.
In fact, it’s quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid. There are many examples of currently disputed legal issues – Israel’s targeted killing of militants in Gaza, for one, Turkey’s desire to prosecute Israel over the Mavi Marmara incident, for another – which could potentially shift in Israel’s benefit. For the sake of brevity, we shall look at only one instance here, that of the highly controversial Gaza blockade.
ALTHOUGH THE UN Palmer Report recently declared the blockade to be legal, the document is not a definitive legal opinion, and has been hotly contested by a raft of UN experts. These experts claim that the report was more concerned with the nature of the blockade and its implementation, rather than its controversial nature and whether or not Israel has a right to blockade Gaza at all.
The entire debate is elegantly explained here by Dr.
Kevin Jon Heller of Melbourne University. Essentially, Dr.
Heller proposes, Israel is in somewhat of a dilemma concerning its legal arguments for the blockade: Israel’s case for the legality of the blockade stems from the London Declaration and from Article 97 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, both of which allow for naval blockades in times of international armed conflict but make no provision for blockades in non-international armed conflicts. Therefore, if the conditions for international armed conflict are not realized in the Israel-Hamas conflict, then the blockade cannot be considered legal.
Ironically, it is Israel’s own rhetoric concerning Gaza that undermines its case for the legality of the blockade by insinuating that the conflict with Hamas in Gaza does not qualify as an international armed conflict. Although the Israeli Supreme Court ruled in a prior case that Gaza and Israel were engaged in international armed conflict, this was in reference to events prior to the 2005 Israeli withdrawal from the Gaza Strip, since which Israel has insisted that it no longer occupies Gaza. Since Israel no longer occupies Gaza and Gaza, according to Israel, is not part of a recognized state, then the conflict cannot be international and the aforementioned statutes don’t apply.
As a result, Gaza remains in legal purgatory, where it is impossible to reach consensus over the legality of Israel’s actions, largely because of the rhetoric Israel displays when discussing the conflict. In this state of flux, Israel is coming under constant attack from many sides that see the potential weakness in Israel’s arguments and smell the opportunity to put her in a corner where Israel will be forced to make strategic concessions, either admitting to the illegality of the blockade or to being an occupying force in Gaza – both things that Israel fervently denies. However, a Palestinian State receiving recognition by the UN would solve this dilemma.
Yes, Israel would be forced to recognize the West Bank as “occupied territory.” However, such a development is virtually inevitable, as the “disputed territories” argument, recently rehashed by Deputy Foreign Minister Danny Ayalon, holds no legal weight outside of Israel and her most zealous supporters.
In return, Israel would gain unequivocal recognition of the conflict in Gaza – certainly the more problematic of the two Palestinian territories – as international, rendering Israel’s right to blockade Gaza undeniable. Such action would make moot Palestinian attempts to prosecute Israel over the blockade, and would help avoid the “legal war” that Mandebilt was so afraid of.
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