Responding at the UN to Another Baseless Lawfare Assault on Israel

The “lawfare” (warfare conducted through the international legal system) against Israel is ongoing. This time a United Nations Commission of Inquiry is relentlessly going after Israel, making baseless claims of violations of international law by the State of Israel.

We have just filed a submission with the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and in Israel (CoI) that is mandated “to investigate, in the Occupied Palestinian Territory, including East Jerusalem, and in Israel all alleged violations of international humanitarian law and all alleged violations and abuses of international human rights law.”

However, the CoI’s reports show that it has not investigated “all” violations as it claims. The CoI has released two reports to date, and they both only focus on the alleged violations by the State of Israel and without any legal basis claim that Israel is unlawfully occupying “Palestinian” territories. Like many U.N. reports, it is clear the CoI’s purpose, in practice, is to target and unfairly malign Israel.

Pursuant to its call for submissions, we have submitted a brief analysis of the CoI’s reports, pointing out the glaring inconsistencies and selective and inequitable application of the Law of Armed Conflict (LOAC) and International Human Rights law.

Our submission highlighted that the CoI has assumed certain facts, prior determination of which is necessary to come to the correct conclusions. For instance, in claiming that Israel is unlawfully occupying “Palestinian” land, the CoI presumes that a state of Palestine exists and that the so-called West Bank, the Gaza Strip, and East Jerusalem are Palestinian territories. This means that “aside from assuming statehood, the CoI has arrogated to itself the authority to determine borders for the notional state of Palestine, even though the [Israeli and Palestinian leaders] have agreed that borders would be decided as part of permanent status negotiations between the parties—which has yet to occur.”

Our submission pointed out that the CoI failed to provide any legal basis for its presumptions and conclusions. We informed the CoI that “Israel was given legal title to the land by the League of Nations through the Mandate for Palestine before the West Bank and the Gaza Strip fell under illegal occupation by Jordan and Egypt, respectively. Hence, in 1967, Israel recaptured its own land in response to an Arab-initiated war.” However, the CoI reports contain no legal discussion relevant to the ownership of the land.

We asked the CoI how it concluded that the so-called West Bank, the Gaza Strip, and East Jerusalem are within the notional state of Palestine’s boundaries.

Are such boundaries based on the U.N. Partition Plan under General Assembly Resolution 181, which the Arabs refused and thus was never implemented? Are they based on the Armistice Agreements (aka the Green Line) which explicitly included a caveat, at the Arab states’ insistence, that those lines should not be considered borders? Or, are such boundaries based on Security Council Resolution 242, which didn’t even consider Arab residents of the West Bank and the Gaza Strip (aka “Palestinians”) as a separate entity, let alone indicate any territorial boundaries?

The CoI reports are simply silent on these questions that need to be answered before one could claim that a state of “Palestine” exists or whether the West Bank, the Gaza Strip, and East Jerusalem comprise that state.

Our submission further highlighted the internal and inherent contradictions in the CoI’s reports.

On the one hand, the reports state that the West Bank, East Jerusalem, and the Gaza Strip are “occupied” territories and, as such, the LOAC applies therein. At the same time, however, they allege that Israeli security measures—which are lawful under the same law of armed conflict—are somehow still unlawful. These are inherently inconsistent positions. For example, measures such as security barriers, naval blockades, military tribunals, etc. are all lawful under the LOAC. Because the security measures are lawful under the LOAC, they cannot be unlawful under general human rights law. In other words, measures (such as restrictions on freedom of movement, security barriers, blockades, etc.) that are not allowed in peacetime are lawful during an armed conflict. The CoI demands that the Geneva Conventions apply to Israeli actions; and when Israel takes measures that are lawful under the Geneva Conventions, the CoI condemns those actions as illegal. An action cannot be both lawful and unlawful at the same time.

Our submission further stated:

Hamas, PIJ [Palestinian Islamic Jihad], and other terrorist groups in the disputed territories commit flagrant war crimes when they indiscriminately fire thousands of rockets into Israel; use civilians as human shields; use civilian infrastructure, such as hospitals, schools, and residential buildings for military purposes; and pay salaries and commissions to those who murder innocent Israelis and Americans. In response to such attacks, Israeli security measures are completely lawful acts of self-defense allowed under the Geneva Conventions and the UN Charter. In taking such measures to defend its civilian population from indiscriminate attacks (including its Arab citizens), Israel also takes every precaution, above and beyond what is required of it legally, to avoid civilian casualties in the disputed territories.

These facts are missing from the CoI’s analysis of the legality of Israeli actions. As such, our submission concluded:

[T]he CoI disregarded the legal principle of necessity of self-defense on Israel’s part in the face of thousands of indiscriminate rocket attacks (which clearly constitute war crimes) by groups like Hamas and the PIJ. Moreover, excluding Palestinian attacks from the analysis when determining the legality of Israeli security measures, such as checkpoints, naval blockades, restrictions on freedom of movement, military tribunals, administrative detentions, etc. (all lawful measures under the Geneva Conventions) is not intellectually honest, let alone a valid legal analysis.

We asked the CoI to abide by its own stated principle: “International law cannot be selectively applied; it must be implemented in its entirety.”

We hope that the international community speaks up against such unfair and one-sided application of international law to the only Jewish state in the world.