ISRAEL: INTERNATIONAL CRIMES OF AGGRESSION AND TERRORISM,

AND ITS INCOMPLIANCE TO INTERNATIONAL TREATIES

Dr. Wisnu Aryo Dewanto, S.H., LL.M., LL.M.

Disampaikan dalam Seminar Internasional “Israel State Terrorism: Challenges and Opportunities for Palestine and Moslem Countries World Peace and Order” yang diselenggarakan oleh Fakultas Hukum Universitas Islam Indonesia, Yogyakarta, pada tanggal 26 Januari 2013

NO ENDING CONFLICT [YET]

• SIX DAYS WAR ISRAEL WON A MAJOR LAND WAR AND TOOK CONTROL OF THE GAZA STRIP, SINAI PENINSULA FROM EGYPT, THE WEST BANK AND EAST OF JURESALEM FROM JORDAN, AND THE GOLAN HEIGHTS FROM SYRIA

• RECOGNITION• LEGAL INTERPRETATION• JURISDICTION OF THE ICJ• THE LEGAL BINDING OF ADVISORY OPINIONS• INTERNATIONAL POLITIC SURROUNDING• THOMAS BUERGHENTAL’S DISSENTING OPINIONS

ISRAEL’S RIGHT OF SELF DEFENSE

HOW A STATE IS IN BREACH OF AN INTERNATIONAL TREATY

• FIRST, IF THE STATE RATIFIES THE TREATY• SECOND, THE STATE DOES NOT HAVE TO

RATIFY IT BUT THE TREATY IS REGARDED AS CUSTOMARY INTERNATIONAL LAW BECAUSE IT PROVIDES AN OBLIGATIO ERGA OMNES, SUCH AS GENEVA CONVENTION 1949 AND THE HAGUE CONVENTION 1907

CORE ISSUES OF ISRAEL – PALESTINE

• THE LEGALITY OF THE ISRAELI SETTLEMENTS IN THE PALESTINIAN TERRITORIES

• ANNEXATION OF EAST JURESALEM

• THE ISRAELI’S WEST BANK BARRIER

• THE BORDERS• THE LEGAL STATUS OF THE

PALESTINIAN REFUGEES FROM THE 1948 ARAB-ISRAELI WAR

THE LEGALITY OF THE ISRAELI SETTLEMENTS

• IT IS ILLEGAL UNDER INTERNATIONAL LAW AND IS IN BREACH OF: – ARTICLE 49 OF THE 4th GENEVA CONVENTION

RELATIVE TO THE LEGALITY OF POPULATION TRANSFER, WHERE ISRAEL TRANSFERRED ITS OWN POPULATION INTO THE TERRITORIES OF PALESTINE

– THE UN GENERAL ASSEMBLY RESOLUTION 2625 (XXV) OF 1970 THAT AFFIRMED: “The illegality of the acquisition of territory resulting from the threat or use of force and affirmed the right of peoples in non-self-governing territories to self-determination.”

ISRAEL AND THE ACTS OF AGGRESSION

• AGGRESSION BY A STATE AGAINST ANOTHER STATE IN BREACH OF INTERNATIONAL TREATIES– THE 1928 PARIS PACT: IF A STATE ENGAGED IN

AGGRESSION IT COMMITTED AN INTERNATIONAL WRONGFUL ACT ENTAILING STATE RESPONSIBILITY

– THE LONDON AGREEMENT 8 AUGUST 1945 ESTABLISHING THE INTERNATIONAL MILITARY TRIBUNAL (IMT) STATED THAT “AGGRESSION WAS AN INTERNATIONAL CRIME INVOLVING INDIVIDUAL CRIMINAL LIABILITY.”

• ARTICLE 6(a) PROVIDED: “the following acts, or any of them coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurance, or participation in a Common Plan or Conspiracy for the accomplishment of any the foregoing.”

DRAFT CODE OF CRIMES AGAINST PEACE AND SECURITY OF MANKIND, ADOPTED BY THE ILC IN 1996

• ARTICLE 16 STATED “An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state, shall be responsible for a crime of aggression.” (UN Doc. A/51/332)

UN SC RESOLUTION 573 OF 4 OCTOBER 1985

• ISRAELI ATTACKED ON PLO TARGETS DUE TO THE DEATH OF ITS CITIZENS

• ISRAEL WAS DEEMED TO COMMIT AN ACT OF AGGRESSION TOWARD THE PLO HEADQUARTERS

• THE SC CONDEMNED THE ATTACK AND DEMANDED THAT ISRAEL REFRAINED FROM FURTHER SUCH ATTACKS

• AGGRESSION ISRAEL TO GAZA ALSO SATIFIES THE CATEGORY OF AGGRESSION AS AN INTERNATIONAL CRIME PURSUANT TO UN GENERAL ASSEMBLY RESOLUTION 3314 (XXIX) OF 14 DECEMBER 1974, WHICH ARE:– ATTACK ON THE TERRITORY OF

PALESTINE– BOMBARDMENT AGAINST THE

TERRITORY OF PALESTINE

THE LEGAL STATUS OF UN GA RESOLUTIONS

• UN GA RESOLUTIONS AS A SOURCE OF LAW

• SLOAN IDENTIFIES THREE MAIN CATEGORIES OF GA RESOLUTION– DECISIONS– RECOMMENDATIONS– DECLARATIONS DERIVED FROM A

CONSENSUS BIN CHENG: INSTANT CUSTOMARY LAW STATE PRACTICE AND OPINIO JURIST

THE LEGAL STATUS OF UN SC RESOLUTIONS

• UN SC RESOLUTIONS AS A SOURCE OF LAW

• UN SC RESOLUTIONS HAVE LEGAL BINDING TOWARD STATES, ESPECIALLY THOSE THAT ARE INVOLVED ARMED CONFLICTS

• EVEN SC RESOLUTIONS CAN CREATE SANCTIONS FOR STATES AND A TRIBUNAL TO TRY INTERNATIONAL CRIME PERPETRATORS

ISRAEL AND THE ACTS OF TERRORISM

• DEFINITION OF TERRORISM REMAINS UNCLEAR AND DEBATABLE

• THIRD WORLD COUNTRIES THE NOTION COULD NOT COVER ACTS OF VIOLENCE PERPETRATED BY SO-CALLED “FREEDOM FIGHTERS” INDIVIDUALS OR GROUPS STRUGGLING FOR THEIR RIGHT TO SELF-DETERMINATION

• DEVELOPING COUNTRIES NO TREATY COULD NOT BAN TERRORISM UNLESS AT THE SAME TIME THE HISTORICAL, ECONOMIC, SOCIAL AND POLITICAL CAUSES UNDERLYING RESORT TO TERRORISM WERE STUDIED CAREFULLY

• DEVELOPED COUNTRIES DISAGREED IF FREEDOM FIGHTERS EXCLUDED FROM THE DEFINITION OF TERRORISM

DOES THE DEFINITION OF TERRORISM EXIST?

• ARTICLE 33 (1) OF THE 4th GENEVA CONVENTION 1949 “collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

• ARTICLE 4 (2)(d) OF THE 2nd ADDITIONAL PROTOCOL OF 1977, ON INTERNAL ARMED CONFLICTS, PROHIBITS “ACTS OF TERRORISM” “AT ANY TIME AND IN ANY PLACE WHATSOEVER”.

• THE DRAFTMEN DELIBERATELY DID NOT SPECIFY WHAT IS COVERED BY THIS NOTION TO HAVE CLEAR IDEA OF WHAT THEY WERE PROHIBITING

THE LAWS AGAINST TERRORISM

• NATIONAL LAWS– The US Iran and Libya Sanctions Act of 1996 provides that ‘an act of

international terrorism’ means an act ‘(A) which is violent or dangerous to human life and that is a violation of the criminal law of the US or of any State or that would be a criminal violation if committed within the jurisdiction of the US or any State; and (B) which appears to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of government by intimidation or coercion; or (iii) to affect the conduct of a government by assasination or kidnapping.”

– The UK Terrorism Act 2000, terrorism: (1) means the use of threat of action, where-- (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (3) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) action falls within this subsection if it– (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed to interfere with or seriuosly to disrupt electronic system.

THE LAWS AGAINST TERRORISM

• INTERNATIONAL TREATIES– CONVENTION FOR THE PREVENTION AND PUNISHMENT

OF ACTS TERRORISM 1971– EUROPEAN CONVENTION ON THE SUPPRESSION OF

TERRORISM 1977– THE 1st ADDITIONAL PROTOCOL 1977 OF THE GENEVA

CONVENTION 1949– CONVENTION TO PREVENT AND PUNISH THE ACTS OF

TERRORISM TAKING THE FORM OF CRIMES AGAINST PERSONS AND RELATED EXTORTION THAT ARE OF INTERNATIONAL SIGNIFICANCE 1971

– ARAB CONVENTION FOR THE SUPPRESSION OF TERRORISM 1998

THREE MAIN ELEMENTS OF THE CRIME OF INTERNATIONAL TERRORISM

• THE ACTS MUST CONSTITUTE A CRIMINAL OFFENCE UNDER MOST NATIONAL LEGAL SYSTEM (FOR EXAMPLE: ASSAULT, MURDER, KIDNAPPING, HOSTAGE-TAKING, BOMBING, etc.)

• THEY MUST BE AIMED AT SPREADING TERROR (FEAR AND INTIMIDATION) BY MEANS OF VIOLENT ACTION OR THE THREAT DIRECTED AGAINST A STATE, THE PUBLIC, OR PARTICULAR GROUPS OF PERSONS

• THEY MUST BE POLITICALLY, RELIGIOUSLY, OR IDEOLOGICALLY MOTIVATED, THAT IS NOT MOTIVATED BY THE PURSUIT OF PRIVATE ENDS

DOES THE ICC HAVE JURISDICTION TOWARD ACTS OF TERRORISM?

• UNFORTUNATELY NOT, BECAUSE:– LACKED OF AGREED DEFINITION– THE INCLUSION OF THE CRIME WOULD

POLITICIZE THE COURT– IT WAS NOT SUFFICIENTLY SERIOUS AN

OFFENCE TO BE WITHIN THE COURT’S JURISDICTION

– IT WOULD BE EFFECTIVE IF BEING PROSECUTED AT THE NATIONAL LEVEL

• HOWEVER, TERRORISM CAN BE REGARDED AS A CRIME UNDER THE JURISDICTION OF THE ICC IF IT AMOUNTS TO WAR CRIMES AND CRIMES AGAINST HUMANITY

THE HALLMARK OF TERRORISM

• ACCORDING TO M. DELMAS MARTY, THE HALLMARK OF TERRORISM IS “DEPERSONALIZATION OF VICTIM” – The perpretator does not attack a specific victim, on

account of a personal relationship or animosity, or of the victim possessing certain assets, or of his or her gender or age, or of his or her nationality, social position etc.

– The perpretator here is “blind” to the victim, it does not matter to him whether the victim is young or old, male or female, the same nationality or foreigner, wealthy or poor etc.

TERRORISM AS A WAR CRIME

• IF IT INFRINGES ARTICLE 33 (1) OF THE 4th GENEVA CONVENTION 1949 IN REGARD WITH “PROTECTED PERSONS” IN ARMED CONFLICT

• ARTICLE 22 OF THE 1923 HAGUE RULES ON AERIAL WARFARE STATING THAT “aerial bombardment for the purpose of terrorizing the civilians population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited.”

• WHAT WE NEED TO PROVE:– ACTUS REUS ACT OF ATTACKING OR OF THREATING

OF AN ATTACK ON CIVILIANS (OR CIVILIAN OBJECTS) TO SPREAD FEAR AMONGST CIVILIANS

– MENS REA INTENT TO CARRY OUT UNLAWFUL ACTS AGAINST CIVILIANS, WHICH ACCOMPANIED BY SPECIAL INTENT TO BRING ABOUT TERROR AMONGST CIVILIANS

TERRORISM AS A CRIME AGAINST HUMANITY

• IT MUST MEET SPECIAL REQUIREMENTS, WHICH ARE:– IT IS PART OF A WIDESPREAD OR

SYSTEMATIC ATTACK ON CIVILIANS– THE PERPRETATORS ARE AWARE OF

THE FACT THAT THE ACTS ARE PART OF A GENERAL OR SYSTEMATIC PATTERN OF CONDUCT

ISRAEL AMOUNTS TO A STATE TERRORISM

• WHY?– ITS ACTS CONSTITUTE A CRIMINAL OFFENCE UNDER

MOST NATIONAL LEGAL SYSTEM, EXAMPLE, ASSAULT, MURDER, BOMBING, KIDNAPPING, HOSTAGE-TAKING, ARSON, TORTURE, etc.

– IT AIMS AT SPREADING TERROR (FEAR AND INTIMIDATION) BY MEANS OF THREAT OR VIOLENT ACTION AMONG THE PUBLIC OR PARTICULAR GROUPS OF PERSONS

– ITS MOTIVATION IS BASED ON POLITICS OR IDEOLOGY OR RELIGION, NOT MOTIVATED BY PRIVATE ENDS

– THE VICTIMS ARE CIVILIANS (PALESTINIANS) AND PUBLIC OFFICIALS (PLO MEMBERS)

– IT HAS A SPECIAL INTENT TO SPREAD TERROR AMONGST THE PALESTINIAN POPULATION

• COMMENTATORS: “State terrorism may also refer to the acts of terrorism conducted by a state (Israel) against a foreign state (Palestine) or people (Palestinian)

ISRAEL’S WALL VIOLATES INTERNATIONAL LAW

• ICJ ON ITS ADVISORY OPINION DATED 9.7.2004 ISSUED THAT ISRAEL’S WALL VIOLATES INTERNATIONAL LAW VOTED 14:1 (JUDGE THOMAS BUERGENTHAL FROM THE US, DISSENTING)– THE WALL MUST BE DISMANTLED IMMEDIATELY – THE WALL CREATES ENCLAVES THAT AFFECT

THE FREEDOM OF MOVEMENT FOR PALESTINIANS, HEALTH SERVICES, AGRICULTURE, EDUCATION, WATER AND CHANGE THE DEMOGRAPHIC COMPOSITION OF THE TERRITORY

• THE ISRAEL’S WALL INFRINGES SOME INTERNATIONAL TREATIES, SUCH AS:– ARTICLE 49 & 53 OF THE 4th GENEVA

CONVENTION THE DEMOLITION OF HOMES AND THE EXPULSION OF THE RESIDENTS OF THOSE HOMES

– ARTICLE 33 OF THE 4th GENEVA CONVENTION COLLECTIVE PUNISHMENT FOR WEST BANK RESIDENTS IT AMOUNTS TO A WAR CRIME

– The barrier attempts to separate Palestinians from their means of livelihood and from interaction with others and is therefore qualifies as APARTHEID APARTHEID IS ILLEGAL AND IS CONSIDERED AS A CRIME AGAINST HUMANITY

ISRAEL VIOLATES INTERNATIONAL HUMANITARIAN LAW

• THE 1949 4th GENEVA CONVENTION RELATIVE ON PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR, TO WHICH ISRAEL IS THE PARTY

• THE 1907 HAGUE REGULATIONS THAT BINDS ISRAEL AS CUSTOMARY INTERNATIONAL LAW RELATES TO ISRAEL’S OCCUPATION OF THE PALESTINIAN TERRITORIES The construction of the wall has led to the destruction of Palestinian properties that contravene the requirement of Articles 46 and 52, as well as Article 53 of the 4th Geneva convention

ISRAEL VIOLATES HUMAN RIGHTS CONVENTIONS

• ISRAEL HAS RATIFIED ICCPR, ICSECR AND RIGHTS OF THE CHILD CONVENTION

• ICJ POINTS OUT THAT THE PROTECTION OFFERED BY THE HUMAN RIGHTS CONVENTIONS DOES NOT CEASE IN CASE OF ARMED CONFLICT

ARE ADVISORY OPINIONS BINDING FOR PARTIES?

• UNDER UN CHARTER AND ICJ STATUTE, ADVISORY OPINIONS RENDERED BY THE ICJ IN PRINCIPLE ARE NON-BINDING, BUT IT DOES NOT MEAN THE OPINIONS ARE WITHOUT LEGAL EFFECT BECAUSE THE LEGAL REASONING EMBODIED IN THEM REFLECTS THE COURT’S VIEWS ON IMPORTANT ISSUES OF INTERNATIONAL LAW

• MOREOVER, ICJ CONCLUDED THAT “THE OBLIGATIONS VIOLATED BY ISRAEL INCLUDE CERTAIN OBLIGATIONS ERGA OMNES”

THE ROLE OF ICC

• THE ICC PROSECUTOR (WITH POPRIO MOTU RIGHT) MUST INVESTIGATE WHETHER OR NOT THE CRIMES CARRIED OUT BY THE ISRAELI SOLDIERS OR COMMANDERS AMOUNT TO THE CRIMES UNDER THE ICC JURISDICTION

THANK YOU

BIOSKETCH• Wisnu Aryo Dewanto is a lecturer at the Surabaya

University Faculty of Law (SUFL). He has joined the SUFL since 1999. His academic career was started at the Atma Jaya University Faculty of Law, Yogyakarta in 1992-1997. Then, he pursued his first Master of Law degree at the Macquarie University Law Faculty, Sydney, Australia in 1998-1999. His second Master of Law degree was obtained in 2002-2003 from the University of Washington Law School, the United States of America. In 2006, he commenced his Doctoral degree at Gadjah Mada University Faculty of Law and graduated in May 2011.

• He is now acting as the 1st Vice Dean on Academic and Student Affairs at the SUFL. Finally, if you need to contact him, you can reach via emails: wisnu@ubaya.ac.id or wisnu@staff.ubaya.ac.id, as well as his mobile phone: 081.793.89.1.86