No, I'm not joking.
The idea that Israel is defending itself against unprovoked attacks from outside its borders is an absurdity. Despite Israel’s withdrawal of settlements and bases in 2005, Gaza remains occupied both in reality and international law, its border, coastal waters, resources, airspace and power supply controlled by Israel.We've addressed this contention before, but let's do it again. Israel is not occupying Gaza. There is not a single Israeli citizen living in Gaza. Until Israel launched the ground phase of Protective Edge on July 17, 2014, there wasn't a single Israeli soldier in Gaza, and after the operation is concluded, there won't be a single Israeli soldier remaining in Gaza. The Palestinians - in the form of their elected Hamas government - administrate the territory, making and enforcing its laws and policing it.
These aren't "fun facts." They conclusively refute any argument that Gaza is occupied by Israel, because "occupation" is a term with a well defined meaning in international law. But don't take my word for it - listen to the International Committee of the Red Cross:
1. What is occupation?
Article 42 of the 1907 Hague Regulations (HR) states that a "territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." According to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. They also apply in situations where the occupation of state territory meets with no armed resistance. ...
2. When does the law of occupation start to apply?
The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.
The question of "control" calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC's Commentary to the Fourth Geneva Convention (1958).
In other words, "occupation" is defined by actual control of territory, on the ground. In the most expansive interpretation, the law of occupation applies to territory in which an invading army has boots on the ground. Alternatively, it applies only where the occupier has sufficient control over the territory to exercise all duties of an occupier.An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.
The more expansive interpretation makes more sense to me, so long as the duties of occupation apply in that case only to the extent that the occupier can actually fulfill them; it makes no sense to impose a duty to police, for example, on an invading army without sufficient control to do so effectively. But whatever definition you prefer, note what is not on the list of criteria for defining the beginning of an occupation: any of the factors cited by Milne.
Control of coastal waters? No. By that definition, any blockade constitutes an occupation, and that isn't the law. Moreover, even were that considered occupation of Gaza's coastal waters, and even under the expansive interpretation of the Red Cross, an "occupying power" that "occupied the coastal waters" would only have the duties of an occupier with regard to those coastal waters.
The same goes for the rest of Milne's list. The Gaza skies? By that definition, the U.S., U.K., France, Turkey occupied Iraq from 1991-2003, and the UN Security Council occupied Bosnia and Herzegovina from 1993-1995 when they imposed no-fly zones there.
Gaza's borders? For one thing, Israel doesn't control Gaza's borders. Gaza has three borders: north, east, and south (it's western edge is the Mediterranean). It shares its northern and eastern borders with Israel, true - but its southern border is with Egypt, not Israel. Egypt is a sovereign state that controls its border with Gaza as it chooses, opening and closing the Rafah crossing on its own authority, and mostly keeping it closed since Hamas' violent take-over of the Palestinian side of the crossing, and subsequent attack on Egypt's border patrol and fence.
Which brings us to a more fundamental point - in what universe does a state's decision to close its borders to a neighboring state create an "occupation"? Set aside the reason why Israel and Egypt each closed their borders to Gaza - that Hamas used transit over those borders to arm for and commit terrorist assaults on Israel and Egypt. The fact remains that as sovereign states, Israel and Egypt are entitled to operate their own borders as they please. Closing the border with a neighboring state does not create a state of occupation.
The same goes for control of resources and power supply. Again, set aside the question of whether Israel actually controls either (Gazans are free to exploit their own natural resources and build their own powerstations, but the Hamas rulers of the strip have turned their attention to more important things, like building tunnels and launching rockets). There's just no basis in international law to consider "control of resources and power supply" from outside of a territory the occupation of that territory.
So no, in reality and international law, Gaza is not occupied by Israel. It is certainly in a state of open war with Israel, and blockaded by Israel - but it isn't occupied. It's important to keep that in mind given what's coming next.
So the Palestinians of Gaza are an occupied people, like those in the West Bank, who have the right to resist, by force if they choose – though not deliberately to target civilians.Again, set aside that Milne is (as I've shown) simply wrong about the status of Gaza as an occupied territory. What is the point of stating that "the Palestinians of Gaza have the right to resist by force, so long as they do not deliberately target civilians" when the fact is that Palestinian "resistance" is comprised almost exclusively of deliberately targeting civilians? And, as Palestinian UN Human Rights Council delegate Ibrahim Khreisheh noted, when the rocket attacks coming from Gaza at the moment deliberately target civilians? And when Hamas openly says that all Israeli citizens are its "legal targets"?
By his own thesis, then, Milne agrees that the Palestinians have no right to "resist" in the manner that they have chosen. That should be an important point, one he would be expected to make explicitly, and take to heart. But to Milne, it's irrelevant - because ...
But Israel does not have a right of self-defence over territories it illegally occupies – it has an obligation to withdraw.Let that marinate for a bit. Israel does not have a right to self defense.
It's actually a bit refreshing to have someone from the anti-Israel brigade come out and say expressly what has, for a long time, been the obvious and unstated premise behind opposition to Israel's defensive actions over the years: Israel has no right to self defense.
As such, it doesn't matter what Israel is defending against. Suicide bombers in its cafes and houses of worship, kidnap and murder of its children, rockets aimed at its cities, or sharks with fricken laser beams attached to their fricken heads - it's irrelevant. Israel has no moral right to defend itself; its only option is to sit back and take whatever punishment its enemies choose to dish out.
This is a breathtaking claim. In all but the most partisan Palestinian shills, it generates visceral repugnance and rejection - which is why it's so rarely expressed outright, as Milne does here. So what evidence supports Milne's position?
Well, his link takes us to Jadaliyya.com, an ezine published by the Arab Studies Institute, and an article penned by "Palestinian American human rights attorney and activist" Noura Erekat. Erekat has a law degree from Berkley and an L.L.M. from Georgetown, impressive credentials. She helped launch the BDS movement and has written in favor of academic boycotts against Israeli institutions, and rejects the entire concept of "two states for two peoples" and advocates for a "One [Palestinian] State solution." So it's not really surprising that she would take an extreme anti-Israel position. But does it have merit?
In a word: No.
The right to use military force in self-defense is enshrined in Article 51 of the UN Charter, which provides as follows:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.This is about as express as can be: a member of the United Nations (which Israel is) has an "inherent right" of self-defense in response to "an armed attack" against it.
Given that rocket launches obviously qualify as an "armed attack," how does Erekat get around this? Here is the basis of her argument:
"A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat."Erekat hypothesizes, essentially, that Israeli claims to a legal right of self defense are self-contradictory given its status as an occupier of Gaza; an "occupier" with duties to protect the civilians of the occupied territory cannot "militarily attack" that territory. She builds her argument in a fairly straightforward way:
1) Occupying powers have a right and duty to police the occupied territory, and policing powers are more limited than military force allowed in self defense; policing powers include the right to use lethal force, but only as a last resort, and as limited by concern for non-combatants;
2) Self defense when attacked is what's known in international law as jus ad bellum - just cause to "begin to fight" by declaring war and respond militarily. This is distinguished from jus in bellum - just methods of fighting (i.e. the rules governing the conduct of war, such as principles of distinction [targeting combatants rather than civilians] and proportionality [attacking only where doing so is justified by sufficient military gain])
3) Since the occupation of a territory means that an armed attack "has already occurred and been concluded," and there can be no right to "begin" a fight that has already concluded
None of these arguments hold water, for a number of reasons.
First, as noted above, Gaza is not occupied territory in the first instance. But even if Gaza were occupied territory, it can only be occupied under the expansive definition preferred by the Red Cross: that some portion of Gaza's territory is under Israel's effective control. But the Red Cross' definition only obligates an "occupier" in that limited sense to exercise the obligations it can effectively carry out, and only in the area it actually controls. More, that definition of "occupation" clearly does not prohibit the use of military force in response to military attack, since - by its own terms - the definition applies to an army mid-invasion. It would be entirely absurd to argue that an invading army has no right to respond militarily to a military attack on it. (It's worth pointing out here that not all invasions are illegal or immoral; the Allies, for example, invaded Germany, Japan, and Italy during WWII).
In other words, even assuming Erekat is right about everything else, any restraints on Israel's right to use military force in self-defense are limited to Gaza's air space and coastal waters (the areas Israel controls) and those parts of Gaza in which Israel is able to effectively police (i.e. exactly nowhere), and don't apply to responses to military attack. That would impose no limit at all on the right to use military force in response to rocket attacks from Gaza.
Second, Erekat concedes that military force can be used by an occupying power in policing, where absolutely necessary and with appropriate concern for non-combatants. Since that is what Israel is doing, her entire argument is a non-issue. (Indeed, as Peter Berkowitz has pointed out in the context of an earlier operation, the amount of force Israel would need to use to "police" Gaza and "arrest" Hamas fighters is a full scale invasion of and recapture of Gaza, complete with house-to-house fighting. That would make Israel's current operation seem like a pillow fight - and Erekat's argument thus becomes that Israel is "limited" to using vastly more force than it has actually deployed, which makes it somewhat less than persuasive as an argument that Israel's current actions are illegal. Berkowitz' article is a longer, better written point by point refutation of Erekat, and deserves a read in its own right).
Third the notion that Israel's military action in Gaza had "already concluded" once it occupied Gaza is absurd. Again, the self-same expansive Red Cross definition that Erekat must accept to consider Gaza occupied contradicts that claim. Under the Red Cross definition, an advancing army occupies any territory it controls, even if hostilities are ongoing. In other words, a state of occupation, under the Red Cross definition, does not exclude the possibility of continuing military action and continued use of military force. Erekat is, of course, free to reject the Red Cross definition of "effective control" - but the alternative, which applies only if Israel is in position to exercise all of the duties of an occupier, only makes more clear that Gaza is not occupied territory. So that doesn't help her much.
In other words: Yes, Virginia, Israel's right to self-defense does exist.
(Side note: Erekat also relies on the ICJ's 2004 advisory opinion on the separation fence, which held that Article 51 rights of self-defense do not apply to non-state actors. There are three problems with that. First, the decision was simply wrong; the UN Charter does not say that self-defense applies only to attacks by other states, and the ICJ's limitation of the right of self-defense to attacks by state actors (at page 121) provided no reasoning or discussion of how they read the phrase "attack by another state" into the Charter.
Second, though that statement appears in the main decision, not all of the judges who agreed with the overall judgement agreed with that portion of it. For instance, Judge Higgins wrote that he did "not agree with all that the Court has to say on the question of the law of self defense." Judge Kooijmans disagreed as well. Judge Buergenthal (who did not concur in the judgement) emphatically and persuasively rejected it.
Third, and most fundamentally, since the ICJ issued its opinion: (1) Israel withdrew from Gaza; (2) Hamas became the government of Gaza and a party to the unity government of Palestine; and (3) Palestine was admitted to the UN as an observer state. In other words, the idea that Hamas are "non-state actors" is simply no longer true at all.)
Back to Milne - and the second half of that obscene sentence:
it has an obligation to withdraw.No. No it doesn't. Security Council resolution 242 requires Israel to withdraw only from "territories" occupied in 1967, not "all the territories" - language included in and specifically rejected from a prior draft of the resolution. More importantly, 242 frames any Israeli obligation to withdraw as conditional and coextensive with an obligation on the Palestinians (and other Middle East states) to cease making war on Israel. Until the Palestinians are ready to make peace, Israel has no legal obligation to withdraw. And even as it signed its unity agreement with Mahmoud Abbas, Hamas expressly rejected the very notion of peace with or recognition of Israel. So no, Israel does not have any obligation to withdraw.
That occupation, underpinned by the US and its allies, is now entering its 48th year. Most of the 1.8 million Palestinians enduring continuous bombardment in Gaza are themselves refugees or their descendants, who were driven out or fled from cities such as Jaffa 66 years ago when Israel was established.
It can’t seriously be argued that Israel’s refusal to withdraw from the rump of the territory on which the United Nations voted to establish a Palestinian state in 1947 is because of rocket fire. It was after all during the period of quiescence over the past year that the Israeli government rejected the US plan for even a figleaf of a two-state solution – and stepped up illegal colonisation. As Netanyahu made clear this week, there cannot be “any agreement in which we relinquish security control” of the West Bank.Again, set aside the error about occupation, and Milne still has this all wrong. The "period of quiescence" Milne refers to still involved the launch of over 100 rockets at Israel, the kidnapping and murder of Eyal, Gilad, and Naftali, 300 separate attacks on Israelis in October and November 2013, including an attempted bus bombing, etc., etc. That this can be truthfully referred to as a "period of quiescence" - and it is, in comparison to the terror war of the early 2000s - is a sad commentary on what Israel expects from the Palestinians. The notion that hundreds of attacks on Israeli civilians ought to leave Israel's government unconcerned about security, on the other hand, isn't sad. It's delusional.
So we’re left with a one-state solution, operated on ethnically segregated apartheid-style lines, in which a large section of the population has no say in who rules over them, indefinitely. But it’s folly to imagine that this shameful injustice will continue without an escalating cost for those who enforce it.I'm not going to bother responding to the apartheid slur, which could take a whole other article, beyond noting the presence in Israel's parliament of Hanin Zoabi, an Israeli Arab who recently penned an article on a Hamas website that encouraging attacks on the State in which she serves as an MP. The more fundamental point is this: Israel has offered the Palestinians a state multiple times: at Camp David, at Taba, and the Olmert proposal. The Palestinians rejected each of these offers. The Palestinians could have had a state for over a decade now; Arafat chose war instead.
Palestinian resistance is often criticised as futile given the grotesque power imbalance between the two sides. But Hamas, which attracts support more for its defiance than its Islamism, has been strengthened by the events of the past week, as it has shown it can hit back across Israel – while Abbas, dependent on an imploded “peace process”, has been weakened still further.This is nonsense, for a couple of reasons. First, Palestinian "resistance" isn't typically criticized for its futility, but for its immorality - its deliberate attacks on Israeli civilians, the murder of children, celebration of death, and open anti-Semitism.
As for "strengthening Hamas" - at the moment, Hamas has shown that it can kill a grand total of two Israelis, while bringing down untold destruction on Gaza. It is being lambasted in the wider Arab world, with Egyptian commentators describing them as "delusional" and expressly rejecting sympathy for Gaza so long as Hamas remains in power; Syrian and Saudi writers are piling on as well.
In fact, the only place Hamas seems to be receiving more support is . . . well . . . in Europe, from folks like Milne.
The conflict’s eruptions are certainly coming thicker and faster. Despite heroic Israeli efforts to fix the narrative, global opinion has never been more sympathetic to the Palestinian cause. But the brutal reality is that there will be no end to Israel’s occupation until Palestinians and their supporters are able to raise its price to the occupier, in one way or another – and change the balance of power on the ground.Did you catch that? The way to peace in the Middle East is to create more Israeli civilian casualties and better arm the terrorists looking to cause them. On this disgusting notion, no further comment is necessary.
In sum, Milne's piece is utter garbage, from start - the very first sentence! - to finish. It is contemptuous of facts, of international law, and of human life. It should never have been published - but having been published, it may actually do some good, by laying bare the true face of the anti-Israel crowd.
Here's hoping.
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