NOVANEWS
Elise Hendrick, who knows quite a lot about international law, has a piece up about whether or not the settlers who Hamas killed two weeks ago were civilians:
…As such, it is at least arguable that these paramilitary settlers meet the dependency and control test established by the International Law Commission’s Draft Articles on State Responsibility and the jurisprudence of the International Court of Justice. In essence, this doctrine holds that a person or group can be considered a de facto organ of a State – and its unlawful acts thus can be attributed to that State – where that person or group operates under conditions of complete control and dependency on that State. While it is not necessary to prove that the paramilitary settlers are de facto State organs in order to hold that they are not civilians under international law, it is useful to examine this question in order to fully understand their legal status.
The degree of control required in order for a person or group’s crimes to be attributed to a State as a de facto organ is a matter of some debate. In Bosnia and Herzegovina v. Serbia and Montenegro (ICJ 2007), the International Court of Justice held that various Bosnian Serb paramilitaries operating within Bosnia could not be considered de facto agents of Serbia and Montenegro in the context of the massacre committed by them at Srebrenica. There, the Court found that the paramilitaries, which (at the time) were operating in territory not controlled by Serbia and Montenegro, and which answered not to the government of that State but to the quasi-state Republika Srpska established in Bosnia, were organisationally and operationally too independent of Serbia and Montenegro to be deemed de facto agents at the time of the Srebrenica massacre.
The situation of the paramilitary settlers in the Occupied Palestinian Territory is fundamentally different in ways that suggest that they could validly be deemed de facto organs of the Israeli State. For one thing, they operate in territory that is under the complete and exclusive control of the State of Israel, which exercises that control through extensive occupying military and police forces. As Marko Milanović has noted, the ICJ in the Srebrenica case “all but hinted at the possibility that its demanding complete control test would indeed have been met for events taking place in 1992,” when the Yugoslavia’s regular army was operating in Bosnia. This would seem to hold particularly true in the case of the Occupied Palestinian Territory, given that the Israeli government, which exercises civilian and military jurisdiction, as well as complete military control, over the OPT, has not made the slightest effort to disarm the paramilitary settlers or to remove them (along with the other illegal settlers) from the territory, as required by international law. Indeed, Israel protects the paramilitary settlers from any form of reprisal (or even protest) for their actions by the Palestinian civilian population…
…As such, it is at least arguable that these paramilitary settlers meet the dependency and control test established by the International Law Commission’s Draft Articles on State Responsibility and the jurisprudence of the International Court of Justice. In essence, this doctrine holds that a person or group can be considered a de facto organ of a State – and its unlawful acts thus can be attributed to that State – where that person or group operates under conditions of complete control and dependency on that State. While it is not necessary to prove that the paramilitary settlers are de facto State organs in order to hold that they are not civilians under international law, it is useful to examine this question in order to fully understand their legal status.
The degree of control required in order for a person or group’s crimes to be attributed to a State as a de facto organ is a matter of some debate. In Bosnia and Herzegovina v. Serbia and Montenegro (ICJ 2007), the International Court of Justice held that various Bosnian Serb paramilitaries operating within Bosnia could not be considered de facto agents of Serbia and Montenegro in the context of the massacre committed by them at Srebrenica. There, the Court found that the paramilitaries, which (at the time) were operating in territory not controlled by Serbia and Montenegro, and which answered not to the government of that State but to the quasi-state Republika Srpska established in Bosnia, were organisationally and operationally too independent of Serbia and Montenegro to be deemed de facto agents at the time of the Srebrenica massacre.
The situation of the paramilitary settlers in the Occupied Palestinian Territory is fundamentally different in ways that suggest that they could validly be deemed de facto organs of the Israeli State. For one thing, they operate in territory that is under the complete and exclusive control of the State of Israel, which exercises that control through extensive occupying military and police forces. As Marko Milanović has noted, the ICJ in the Srebrenica case “all but hinted at the possibility that its demanding complete control test would indeed have been met for events taking place in 1992,” when the Yugoslavia’s regular army was operating in Bosnia. This would seem to hold particularly true in the case of the Occupied Palestinian Territory, given that the Israeli government, which exercises civilian and military jurisdiction, as well as complete military control, over the OPT, has not made the slightest effort to disarm the paramilitary settlers or to remove them (along with the other illegal settlers) from the territory, as required by international law. Indeed, Israel protects the paramilitary settlers from any form of reprisal (or even protest) for their actions by the Palestinian civilian population…
But go read the whole thing on her site.
Technorati Tags: condemnation, David Samel, Elise Hendrick, international law, Mondoweiss, resistance, violent resistanceNo related posts.
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