US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so — because, over the long term, the goal of those who think that international law really means anything are those who want to constrain the United States.

Such a perspective may be based in part on a belief in US exceptionalism — the idea that peremptory norms do exist, but that they should not bind the US — which is inherently at odds with the rule of law.[2] (Yes, torture is absolutely wrong, but we are not prohibited from using it since we only do so for the right reasons.) Yet, such aversion to international law ignores the very real ways in which the existence of an international legal framework can advance the interests of states which adhere to it. Not only because, as Goldsmith and Posner argue, paying lip service to international legal norms may be a low-cost means of gaining considerable reputational benefits, but because the norms themselves can serve as a tool for expanding, rather than constraining, state power.

Joseph Nye, of Harvard’s John F. Kennedy School of Government, champions the idea that a country’s power is contingent not only on concrete indicators such as population size, GDP, or military strength, but also, to no small extent, on that intangible element of attraction — the ability to win other states’ cooperation through an appeal to shared values — which he terms “soft power”.[3] The importance of soft power, particularly for a country with such far-reaching global interests as the United States, cannot be overestimated. When the US asks China to relax its censorship laws to allow for the distribution of American movies, or asks Turkey to allow passage to US troops en route to Iraq, or asks Canada to acquiesce to new import duties on softwood lumber, the ability to persuade is often more important than the ability to coerce.

International relations no longer occur in the normative vacuum which existed 200 years ago. With the growth of international trade and communications technology, along with the proliferation of states and international organizations, relations between countries have increasingly become legalized through treaties and formal mechanisms of dispute resolution that permeate all spheres of interaction. Certain treaties, such as the Geneva Conventions and the UN Charter, establish normative frameworks that can claim near-universality, while the crystallization of jus cogens and customary law purports to exactly that. Within the last decade or so, international law has supplanted the philosophical debates and Cold War rhetoric that dominated the latter half of the 20th century, and has become not only the dominant, but in many respects the sole, discourse on inter-state normativity. The perceived legitimacy of the US’ wars in Iraq and Afghanistan, for instance, hinged not on politicians winning converts to the moral imperative of spreading democracy, but rather on lawyers’ persuasiveness in justifying military action on the basis of art. 51 of the UN Charter. In today’s world, soft power derives principally from states’ success at invoking international law in pursuit of their interests.

The formation of international legal norms is a process which itself reflects the balance of power, both hard and soft. While the principle of sovereign equality ostensibly grants all states an equal role in the development of international law, in practice some states exercise far more influence over the process than others. For instance, many areas of international law, such as jus in bello, were largely developed in the first half of the 20th century, when the number of states in existence was but a fraction of that which exist today; this means that much of the world, especially of the developing world, had little say in the development of such areas of law.

Another example of the uneven role of states in shaping international law can be seen in the last decade with the assertion of legislative competence by the UN Security Council under Chap. VII of the UN Charter, which gives an inordinate amount of power to the Permanent Five members. This was first seen in UNSC Resolution 1373, passed in a three-minute meeting two weeks after September 11, 2001, which effectively imposed anti-terrorism treaty obligations on all UN member states without their acquiescence.

As a final illustration of major powers’ influence in the formation of international law, a number of scholars have noted that jus cogens and customary law seem to reflect American legal culture to a far greater extent than that of other nations. For example, Alston and Simma observe that the rights enumerated in the US Bill of Rights are generally recognized as customary norms under international law (such as the right to due process), while many of the social rights provided for in the Universal Declaration of Human Rights (such as the right to free primary-school education) are not.[4]

Thus, not only is resort to shared legal norms an essential means of bolstering the US’ soft power, but the US has considerable ability to influence the development of such norms with a view to promoting its own interests (such as spreading democracy, or authorizing military intervention against dictatorial regimes). From a realist standpoint, it therefore makes a great deal of sense for the US to expand its cooperation and engagement with international institutions — perhaps even at the expense of some short-term interests — despite the blow that this would deal to US exceptionalism.

[1] Goldsmith, J. and Posner, E. The Limits of International Law (Oxford University Press, 2005).

[2] See Thimm, J. “American Exceptionalism: Conceptual Thoughts and Empirical Evidence” (Internationale Politik, 2007). <http://politikwissenschaft.tu-darmstadt.de/fileadmin/pg/Sektionstagung_IB/Thimm-American_exceptionalism.pdf>

[3] Nye, J.S., “The Benefits of Soft Power” (Harvard Business School Archive, Aug. 2, 2004). <http://hbswk.hbs.edu/archive/4290.html>

[4] Simma, B. and Alston, P. “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988) 12 Aust. YBIL 82. <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ayil12&div=9&id=&page= >

To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such violations that occurred outside their borders.

The ICC has many shortcomings, including the inability to exercise territorial jurisdiction in states which have not ratified the Rome Statute. This conceptually precludes the court from being truly “universal”, but it is a difficult obstacle to surmount due to the primacy of sovereign equality in our international legal order. Far more practical to address are the legislative measures taken by individual states with regard to universal jurisdiction, and the discrepancies between states’ pronouncements on the topic and their concrete actions.

By way of example, Canada prides itself on being the “first country to [have incorporated] the obligations of the Rome Statute into its national laws” through the Crimes Against Humanity and War Crimes Act of 2000.[3] This far-reaching piece of legislation actually goes beyond the scope of the Rome Statute in many respects, for example by incorporating elements of universal jurisdiction and retroactive applicability. Yet, despite having had numerous occasions to prosecute individuals for war crimes over the last decade – authorities just recently published the names of 30 alleged war criminals living in Canada[4] – only two prosecutions under the Act have been initiated.[5]

In a prominent ongoing case, accused Serbian war criminal Branko Rogan faces revocation of his Canadian citizenship and deportation rather than a trial,[6] even though the ostensible purpose of the Act is to enable war criminals to be brought to trial in Canada. Jillian Siskind, the president of Canadian Lawyers for International Human Rights, notes that Canada’s preference for deporting accused war criminals rather than prosecuting them means that such people will usually never face trial due to a lack of will or capacity in their home countries, and may in some cases face the risk of torture.[7] The reason war crimes cases are rarely tried domestically in Canada can be found in art. 9(3) of the Act, which requires “the personal consent in writing of the Attorney General or Deputy Attorney General” for a prosecution to commence. This requirement makes the process inherently political. War crimes trials are expensive and often politically inexpedient;[8] but should political expedience trump the pursuit of justice? Amnesty International argues that it should not. The organization is one of several to have presented credible arguments in favour of indicting George W. Bush for war crimes on his recent visit to Canada.[9] Regardless of its judicial merit, it is difficult to imagine many Canadian politicians – much less a Conservative cabinet member – signing off on such a move (and no less difficult to imagine a former US president standing trial in his own country on such charges).

Many countries which recognize the principle of universal jurisdiction impose political constraints similar to Canada’s on its invocation. During the 1990s, a number of European states implemented extremely broad legislation asserting universal jurisdiction over a wide range of crimes, while the subsequent decade saw these measures drastically scaled back.[10] The UK, which asserted universal jurisdiction over certain war crimes as early as 1988, recently amended its procedure to require applicants seeking an arrest warrant for such crimes to gain approval from the director of public prosecutions (a political appointee). This reform came in the wake of repeated attempts to indict Israeli military and political leaders in British courts, which the government deemed harmful to its foreign policy interests.[11]

Universal jurisdiction is even more politically constrained in the United States: expansive anti-terrorism statutes have allowed US courts to exercise universal jurisdiction over crimes committed by the governments of North Korea and Iran, but the same courts declined to pass judgment on alleged crimes committed by US-ally Israel in deference to the executive branch.[12]

Although the US, UK, and Israel have all invoked universal jurisdiction domestically,[13] it is perhaps a striking illustration of power politics that despite their high levels of belligerency nationals of those countries have never faced prosecution before foreign or international tribunals for war crimes. The US and Israel in particular have taken aggressive legislative and diplomatic measures to prevent the doctrine from being applied against their citizens.[14]

While recognizing that the efficient conduct of international relations likely necessitates some sort of barrier (along the lines of diplomatic immunity) to prevent citizens from spuriously enmeshing foreign officials in legal proceedings, serious reforms should be advocated to depoliticize international criminal law and thereby bolster its credibility. Legal norms for invoking universal jurisdiction should be standardized across states, and barriers to initiating proceedings should be strictly judicial in nature rather than overtly political. Measures such as these would restore faith in international law by further advancing the positive trend toward individual accountability while at the same time clearly conveying the message that the same standards apply to the powerful and weak alike.

[2] Ibid. at 3.

[3] Canada’s Crimes Against Humanity and War Crimes Act, Implementing the Rome Statute (Retrieved 24 October 2011), online: Foreign Affairs and International Trade Canada <http://www.international.gc.ca/court-cour/war-crimes-guerres.aspx?lang=eng&view=d>.

[4] Paola Loriggio, “Feds Ask for Public’s Help to Catch Alleged War Criminals in Canada Illegally” 680 News Radio (22 July 2011), online: 680news.com < http://www.680news.com/news/national/article/256714–feds-ask-for-public-s-help-to-catch-alleged-war-criminals-in-canada-illegally>.

[5] Successes, War Crimes (Retrieved 24 October 2011), online: Department of Justice Canada <http://www.justice.gc.ca/warcrimes-crimesdeguerre/successes-realisations-eng.asp>.

[6] Adrian Humphreys, “The Cost of Being Stripped of Citizenship” National Post (10 October 2011), online: nationalpost.com <http://news.nationalpost.com/2011/10/10/the-cost-of-being-stripped-of-citizenship/>.

[7] Catherine Solym, “A Presumption of Guilt” Montreal Gazette (26 November 2011), p. B1.

[8] The only war crimes trial to have been successfully concluded in Canada to date, that of Desire Munyaneza, cost an estimated $4 million.

[9] Olivia Ward, “Canada Urged to Arrest George W. Bush on B.C. Visit” Toronto Star (13 October 2011), online: thestar.com <http://www.thestar.com/news/article/1069594>.

[10] See e.g. “European States Confronted with Impunity: Report on Universal Jurisdiction in Europe” (Alkarama, 2010), online: scribd.com < http://www.scribd.com/doc/30232948/Report-on-Universal-Jurisdiction-April-2010-Alkarama>. Representative of this trend, Belgium for example implemented some of the most far-reaching legislation in 1993 but effectively repealed it 10 years later.

[11] Universal Jurisdiction, Ministry of Justice Press Release (15 September 2011), online: UK Ministry of Justice <http://www.justice.gov.uk/news/press-releases/moj/pressrelease150911a.htm>.

[12] Daniel Haboucha, “Waging Lawfare” Canadian Lawyer Magazine (1 November 2011), online: canadianlawyermag.com < http://www.canadianlawyermag.com/Waging-lawfare.html>.

[13] The US and UK as discussed above, and Israel in its 1961 prosecution of Adolf Eichmann.

[14] See e.g. the American Servicemembers’ Protection Act, described by various NGOs as “anti-ICC legislation”, discussed in Sean D. Murphy, Principles of International Law (Thomson West, 2006) at 428.

The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.

Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”[3]

There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.

Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.

Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.

Effects of UN recognition on the legal status of Palestine

Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.

According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.

If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.

Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.

Effects of UN recognition on the legal rights of Palestinians

Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.

I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.

Effects of UN recognition on the legal status of the Israeli occupation

A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.

Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.

Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.

Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.

Effects of UN recognition on Palestine’s bilateral negotiations with Israel

The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.

There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.

Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.

Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.

[2] According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).

[3] Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).

The controversy surrounding the case stems largely from the circumstances leading to Abu Sisi’s detention: according to credible reports, he was abducted by Israeli agents from a train while visiting his wife in Ukraine. The similarity in the fates of their loved ones, both abducted and detained (or, in the words of some, kidnapped) by enemy forces in the course of Israeli-Palestinian hostilities was surely not lost on Shalit’s father or Abu Sisi’s wife, who spoke by phone earlier this week.

Disregarding for the moment the apparent Israeli violation of Ukrainian sovereignty and the corresponding breach of art. 2 of the United Nations Charter, which will surely have diplomatic repercussions for Israel if the reports are shown to be true (Ukrainian Prime Minister Nikolai Azarov said on a recent visit to Israel that he “doesn’t want to imagine” that possibility), I wish to consider here the legality of abduction missions within the framework of international humanitarian law (IHL) generally, and as applied to the Israeli-Palestinian conflict specifically.

To begin with, it is worth briefly considering whether and to what extent IHL is actually an appropriate normative framework on which to base this analysis. A far more exhaustive discussion on this question can be found in the 2005 Targeted Killings decision of the Israeli High Court, but two key points should be noted : 1) The ongoing hostilities being waged between Israel and the disparate Palestinian factions, most notably Hamas, are of sufficient intensity and severity to be regulated by IHL, which is the primary body of law regulating the conduct of armed conflict, until such time as the occupation comes to an end (art. 3(b) Additional Protocol I). 2) An armed conflict which involves military occupation is automatically characterized as an international armed conflict (common art. 2, Geneva Conventions), meaning that the entire body of IHL, including all of the Geneva Conventions, applies to the situation in question.

IHL recognizes that in the course of hostilities, combatants may be detained by an adverse party; in an international armed conflict, combatants who qualify for prisoner of war status under art. 4(A) of Geneva Convention III are entitled to the protections of that Convention, whereas those who do not are entitled to certain minimum protections under art. 75 of API (to which Israel is not a party, but many of whose provisions—including the aforementioned—in any event reflect binding customary law). None of these protections preclude prosecution for terrorism offenses (which in IHL parlance generally constitute war crimes), subject to the procedural guarantees of art. 75(4) API (in the case of international armed conflicts) and the far more limited protections of common art. 3 (in the case of non-international armed conflicts).

While it is relatively clear from the above that the detention of enemy combatants is tolerated under IHL, some scholars have gone further and argued that common art. 3 in fact authorizes the detention of enemy combatants by listing it as one of the mechanisms by which combatants can be placed hors de combat. In Hamdi v. Rumsfeld, the US Supreme Court affirmed that, in its understanding, the right to detain enemy fighters is inherent in the use of armed force.

According to the guidelines published by the International Committee of the Red Cross (ICRC), members of non-state organized armed groups which are a party to the conflict may be targeted by the adverse party in the same manner as combatants belonging to state armed forces; that is, they can legitimately be targeted at any time while the conflict is ongoing, whether they are actively participating in hostilities or not, subject to the principles of precaution and proportionality. In contrast, enemy civilians may only be targeted if and for such time as they directly participate in hostilities (art. 51(3) API). According to the ICRC, the difference between civilian attacks and those of organized armed groups is that the former are inherently spontaneous, sporadic, and unorganized. While for targeting purposes the ICRC guidelines treat anyone as a member of an organized armed group whose continuous function involves taking direct part in hostilities, US courts have extended membership in an armed group to anyone who “receives and executes orders from the enemy force’s combat apparatus.”

Given that Hamas regularly engages in attacks against Israel of some intensity, that it has an organized leadership structure, and that it purports to many of the functions of government, it can clearly be considered an organized armed group for the purposes of the ICRC guidelines on targeting. Any Hamas member who regularly participates in direct attacks against Israel may therefore be targeted at any point in the conflict, but the US and ICRC approaches diverge on whether this should extend to Hamas members serving in support or logistical roles (though it is generally agreed that Hamas members who do not take orders from the “combat apparatus” of the organization may not be targeted except and for such time as they directly participate in hostilities).

All serving members of the Israeli Defense Forces, the latter being a state armed force, can of course be targeted at any time during the course of the conflict, with the exception of medical and religious personnel (art. 43 API). Off-duty reservists are to be treated as civilians.

If Abu Sisi is indeed a member of Hamas who has regularly taken part in (ICRC) or supported (US Supreme Court) attacks against Israel, then he and Shalit can both be considered to have been belligerents at the time of their capture and as such legitimate targets for abduction. Both he and Shalit were captured during the course of an ongoing international armed conflict (and the fact that Abu Sisi’s abduction took place “off the battlefield” and in the territory of a neutral state is irrelevant for the present discussion). Neither his abduction nor Shalit’s incurred collateral damage, and so both can be said to have been carried out with due regard for the principles of precaution and proportionality. And so—in contrast with Israeli abductions of Palestinians inside the Occupied Territories (which can arguably derive authorization from art. 78 of Geneva Convention IV), or certain other famous Israeli abductions (such as that of Adolf Eichmann, which took place outside the context of an armed conflict)—I can see no basis in IHL for drawing a legal distinction between the abductions of Abu Sisi and Shalit. Both, under IHL, are equally legal.

Of course, this discussion would be incomplete without noting that IHL also obliges the belligerent parties to accord enemy detainees the protections stipulated by the Third Geneva Convention, art. 75 API, or common art. 3 as the case may be; while Israel so far appears to have adhered to this obligation, Hamas (in this matter as in all others) has shown absolutely no respect for or intention to abide by the laws of war.

Self-determination is understood as the right of all national groups (in practice, groups recognized as such by themselves and by others) to be governed and represented (popularly or otherwise) by a sovereign state (or federation) functioning as the highest source of domestic legal authority. Affirmation of the right to self-determination is prominently featured in art. 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is deemed to be an inherent right; that is, it does not derive from the international legal order but rather is presupposed by the latter: art. 1(2) of the United Nations Charter recognizes the principle of self-determination as a basis for the existence of the UN.

It is often assumed that the right to self-determination gives peoples living under foreign military occupation an absolute right to resist against the occupying power. It is interesting to note, therefore, that nowhere in international humanitarian law (IHL) – the primary body of law dealing with military occupation – can such a right be found or even inferred. Moreover, certain IHL provisions actually seem to preclude a general right to resist occupation. For example, IHL gives an occupying power not only the right, but the obligation to ensure public order in occupied territory (art. 43 of the Hague Regulations), and authorizes an extraordinarily wide range of powers with which to do so – including the right to detain people indefinitely without trial, subject to a right of appeal and periodic review (art. 78 Geneva Convention IV). Another indication that IHL precludes a general right to resist can be found in art. 4(A)(6) Geneva Convention III, which specifically withholds its protection from the inhabitants of an occupied territory who spontaneously pick up arms to fight off foreign invaders, even though it does protect inhabitants of a non-occupied territory who do so. Civilians living under occupation can be prosecuted for acts of resistance that are deemed disruptive to the security of the military administration (art. 64 para. 3 Geneva Convention IV), and they forego their protection from armed attack if and for such time as they take part in hostilities (art. 51(3) Additional Protocol I). In declining to recognize a right to resist occupation, the Dutch Special Court in Re: Christiansen noted, “the civilian population, if it considers itself justified in committing acts of resistance, must know that, in general, counter-measures within the limits set by international law may be taken against them with impunity.”[1]

It is crucial to note that occupation per se is not a crime under international law, and that the IHL provisions referred to above, pertaining as they do to jus in bello, apply equally to situations of legal and illegal occupation.[2] Further, while the International Court of Justice has repeatedly affirmed that international human rights law does not cease to apply during wartime, as lex specialis IHL principles should supercede any inconsistent principles deriving from other normative frameworks – including, it would seem, the right to self-determination (which is not listed as a non-derogable right under art. 4(2) ICCPR).

This does not mean that resisters to occupation are never entitled to any protection under IHL. Where resistance has reached the intensity of an armed conflict, art. 4(A)(2) of Geneva Convention III does grant that members of “organized resistance movements” connected with one of the parties to the conflict (that is, one of the belligerent states[3]) are entitled to prisoner of war status, meaning that they cannot be prosecuted merely for having participated in hostilities. However, Jean Pictet of the International Committee of the Red Cross clarifies that this provision should not be interpreted as conferring a general right to resist, the crucial point being that it only grants protection to individuals belonging to one of the belligerent parties and not to the population as a whole.[4] His commentary make it clear that the drafters of the Geneva Conventions, like the court in Christiansen, did not recognize a general right of resistance for occupied populations. To benefit from art. 4(A)(2) protection, combatants are required to be under the command of a person responsible for his subordinates, wear a distinctive and recognizable sign to distinguish them from non-combatants, carry their arms openly, and comply with the rules and customs of war. Art. 44(3) of Additional Protocol I provides limited exceptions to the requirement for combatants to always distinguish themselves from civilians, which have been understood to apply specifically to situations of national liberation and resistance to occupation from whom wearing uniforms may not always be practicable.[5] This leniency has the effect of making it harder to prosecute certain categories of individuals resisting occupation simply for taking part in hostilities (resisters can still of course be attacked during the course of hostilities and can be prosecuted subsequently for any other violations of domestic law or IHL – or can even be detained indefinitely if this is deemed imperative for security, as noted above).

These limited and rather weak protections leave open the question, what’s an occupied people to do? Can peoples’ right to self-determination be abrogated indefinitely by an occupying power? Surely IHL cannot be interpreted as providing implicit acquiescence to permanent situations of colonialism and illegal occupation.

I believe that a limited legal right to resist occupation, if one can be said to exist at all, can only be drawn directly from the principle of self-determination. As noted at the start of this article, self-determination of peoples is not merely a substantive guarantee of international human rights law; it serves, in many respects, as the foundation upon which all of international law is based. Therefore, one might reasonably argue that no part of international law can be construed as negating this principle. It can be speculated that the drafters of the Hague and Geneva Conventions viewed occupation as an inherently transitory phenomenon and did not consider the possibility of “permanent” occupation. But where occupation is entrenched or enduring to the point of having attained a degree of permanence, inasmuch as it effectively denies (rather than merely suspends or limits the exercise of) a national group’s right to self-determination, I think it might reasonably be argued that the people deprived thereof cannot be denied under international law the right to take steps (not contrary to IHL) in order to assert this right.

[2] Ibid. at p. 3.

[3]Pictet, J, The Geneva conventions of 12 August 1949: commentary (International Committee of the Red Cross, 1958), at p. 57. Retrieved from http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-III.pdf.

[4] Ibid. at pp. 57-58.

[5] http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter33_rule106

The current escalations relate to the investigation being carried out by the Special Tribunal for Lebanon (STL) into the 2005 assassination of former prime minister Rafiq Hariri, who actively opposed the Syrian occupation of his country and had been contemplating a return to politics at the time of his death. His bloody assassination galvanized the nationalist, anti-Syrian movement in Lebanon, sparking massive public demonstrations and international outcry which led in a matter of weeks to the end of Syria’s 29-year occupation of the country. STL was established at the behest of the Lebanese government and pursuant to UN Security Council Resolution (UNSCR) 1757, which referred to the assassination as a “terrorist crime.”

This is the first time an international tribunal of this kind has been set up to investigate and prosecute an act of terrorism. Ordinarily, such bodies are mandated to try people for wide-scale war crimes or crimes against humanity, usually heads of state or high-ranking military or government officials. Indeed, preliminary UN investigations pointed the finger at high-ranking Syrian and Lebanese officials, resulting in the arrest of four Lebanese generals; however, all four were released last year due to a lack of evidence. A Der Spiegel report in May of this year revealed that the evidence was now pointing in a different direction. Saad Hariri, Rafiq’s son and the current prime minister of Lebanon, recently called his earlier allegations of Syrian complicity “a mistake” and repudiated his sworn statement to STL, while a detailed exposé published by CBC two weeks ago documents vast amounts of evidence implicating Hezbollah in the assassination. This has fuelled speculation across the political spectrum in Lebanon and abroad that indictments against Hezbollah leaders are imminent. Hezbollah chief Hassan Nasrallah has pledged not to allow the arrest of its members and has attempted to block STL’s investigation through legislative means, by publicly calling for non-cooperation with STL, and by hinting at violence if the investigation proceeds. In August, he tried unsuccessfully to implicate Israel in the assassination, and while these efforts were seen internationally as a sign of desperation they were popular among large segments of the Lebanese population – approximately half of which believes Israel is likely guilty. Many outspoken opponents of Hezbollah, including Lebanese Druze leader Walid Jumblatt, have been calling for national unity out of fear that STL indictments could irrevocably destabilize Lebanon; there are even rumours that Saad Hariri may reach an agreement with Nasrallah to prevent further escalation.

Given the extreme volatility of the situation and the calls for caution coming from Lebanese politicians of all stripes as well as from the governments of Syria, Turkey, Saudi Arabia, and Qatar, it is possible that this may simply be allowed to quietly blow over for expedient’s sake. However, at this point it seems more likely that STL will issue indictments against senior Hezbollah leaders. Aside from the practical consequences such a move could have for Hezbollah, Lebanon, and the Middle East, it could also have far-reaching implications for the international community’s ability to combat terrorism.

This puts to the test the spate of anti-terrorism provisions adopted by the Security Council over the last decade and a half or so, particularly after September 11, 2001. UNSCR 1373 legally binds all UN member states to ensure that any person who participates in the financing, planning, preparation, or perpetration of a terrorist act be brought to justice. UNSCR 1566 reaffirms this imperative and specifies that:

Criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act […]are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.

Both resolutions were adopted unanimously and explicitly invoke Chapter VII of the UN Charter, and were cited by the Security Council as a basis for taking action against the perpetrators of the Hariri bombing. The scope of these resolutions, along with the practical relevance of the terrorism label in an international law context, is now being put to its most serious test – leaving aside the clichés about one man’s terrorist being another man’s freedom fighter, is there any point in having anti-terrorism provisions on the books if they can’t be acted on even in the rare situations where broad consensus actually exists?

How far is the international community prepared to go in pursuit of justice when the justice sought may entail profoundly adverse political and security consequences for UN member states? If Hezbollah responds with force to prevent its members from standing trial on terrorism charges, how should the UN respond? The Security Council has repeatedly called for the disarmament of Hezbollah in resolutions 1559 and 1701, pursuant to international law as well as the latter’s obligations under the 1989 Taif Accords. Following the 2006 conflict with Israel, the UN Interim Force in Lebanon (UNIFIL) was bolstered to nearly 15,000 troops, but thus far has refused to take any part in disarming Hezbollah, which operates a private militia that by all accounts is far more powerful than the Lebanese army.

Currently, Hezbollah is regarded categorically as a terrorist movement by only three governments – those of the United States, Canada, and Israel – though a number of others use the adjective to describe its military wing or certain of its actions. Despite the efforts of the US and the international community to prevent Hezbollah’s rearmament, reports indicate that Syrian and Iranian arms shipments to Hezbollah are continuing apace and include increasingly advanced munitions. But if Hezbollah resorts to violence against a UN-sanctioned body to thwart the activities of STL, in violation of over a dozen Security Council resolutions, the UN will come under increasing pressure to declare Hezbollah to be complicit in terrorism and to respond accordingly.

The forcefulness of this response (or lack thereof) will say a great deal about the international community’s determination and ability to jointly confront terrorism. On one hand, it will be hard if not impossible to justify intervention by international forces against the will of the Lebanese government and populace. On the other hand, the international community has already vested itself heavily in ensuring Lebanon’s stability (STL alone has cost an estimated $200 million in its first three years), and it may soon reach the limit of its tolerance for Hezbollah’s seemingly endless disregard for international law and consensus. The difficulty is compounded by Lebanon’s sensitive history and delicate internal power balance, which may lead the entire country to rally around Hezbollah in the face of an external threat. Either alternative – intervention (military or otherwise) by the international community to block Hezbollah’s power play or inaction in the face of Hezbollah’s expanding influence – risks further destabilizing Lebanon and potentially leading to renewed military intervention by Israel or Syria and a marked shift in the balance of power between the western-backed countries in the region and the Iran-Syria-Hezbollah bloc.

If the international community backs down from its pledge to promote the rule of law in Lebanon in the face of threats from Hezbollah, this will be a major blow to the credibility of the Security Council and international institutions more generally. Sadly, STL seems to have backed itself into a corner by inadvertently taking on Hezbollah, and this outcome is that which I consider to be the most likely.

Previously, I have attempted to explore the limits of freedom of religion in Canadian and international law; I now return to this subject in order to consider the question of whether freedom of religion encompasses the right to proselytize one’s faith. While an exhaustive examination of the issue would doubtless require a far more detailed analysis than I am able to provide here, I hope to provide at least an overview of the relevant considerations.

Legislative provisions on religious proselytism vary widely from one country to another. Most western countries impose no specific constraints on proselytization, leaving its regulation to social norms of conduct or religious bodies themselves. A number of countries, such as Greece and Nepal, ban the activity outright and threaten transgressors with criminal sanctions. Many countries impose limits on who can proselytize: it is illegal for non-Muslims to spread their faith in most Middle Eastern countries, and illegal for foreigners to do so in China. Israel, in contrast, imposes limits on how people can proselytize, making it illegal to offer material inducements to convert religion and supporting parents’ authority to determine the religion of their children.

From an international law perspective, freedom of religion is generally understood broadly to comprise the right to adopt a religion of one’s choice and to manifest it publicly through teaching, practice, worship, and observance. The International Covenant on Civil and Political Rights enshrines this definition in international law at art. 18(1), and provides in the subsequent subsections that no one shall be subject to coercion which would impair his ability to choose his religion and that freedom to manifest one’s religion may be subject to domestic legal restrictions such as are “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Many religious denominations view proselytism as a dictate of their faith, and thus see legal restrictions on proselytism as infringements on their right to publicly manifest their beliefs through teaching as well as on their right to free expression. This understanding is widely supported by international human rights bodies. For example, the UN Human Rights Committee has affirmed that art. 18(1) includes the right to “distribute religious texts or publications”; the European Commissioner for Human Rights has objected to Greece’s ban on proselytization; and the US State Department has referred to proselytization bans as a restriction on public worship.

Proselytism is extremely unpopular in many areas of the world though, and opponents may justify bans on the basis of ICCPR art. 18 by framing the practice as a threat to public order or morals, or as interference with the right of the public at large to freely choose their own faith without coercion. I will leave the matter of assessing proselytism’s public policy impact to Tony Blair, but I will say a few words on Proselytism as a question of competing rights.

As K. Kyriazopoulos points in an article in the Journal of Law and Religion, the competing legal interests in play (the desire to manifest one’s faith by sharing it with others on one hand, and on the other hand the desire to hold one’s own faith – or lack thereof – free from coercion by others) both derive from the same right to religious freedom. That is, the rights being asserted by both parties, despite being fundamentally at odds with one other, are actually the same right… making it impossible to position them relative to each other on a “hierarchy” of rights. Kyriazopoulos argues that, in general, there is no legal basis for the state to favour one interest over the other and it is therefore bound to remain neutral. Alternately, it might be argued that most forms of proselytization do not fall within the ambit of “coercion” as envisioned by the drafters of the ICCPR, which may refer to coercion by the state and arguably requires a more intense form of coercion than merely the distribution of pamphlets on street corners. Either way, it seems like a stretch under the rights-based approach to conclude that a proselytism ban is supported by ICCPR art. 18.

There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule percentage (less than 1%) of claimants have been granted refugee status; the rest have either been issued conditional visas, renewable every three months, or are held in detention facilities. Israel has adopted a number of strategies aimed at deterring incoming asylum-seekers, and suggestions of building a wall along the border with Egypt were first discussed publicly in 2007.

The proposed barrier is wrong for all sorts of reasons. It’s wrong because it will somehow manage to give Israel, with its 1017 km of land borders, roughly 1419 km of highly-securitized border fences designed to seal it off from its neighbours (whether they be at war or at peace), causing the country to increasingly resemble a fortified ghetto.[2] It’s wrong because a country that was founded by and for refugees should not spend hundreds of millions of dollars building doors for the sole purpose of slamming them in the faces of other refugees in desperate need of assistance.  It’s wrong because when Netanyahu claims the barrier is necessary to preserve Israel’s “Jewish and democratic character”, he tacitly reveals that the term is being used to mask nothing more than a concern for Israel’s ethnic composition.

But is the barrier illegal? There is precedent suggesting that it is not. In its ruling on the West Bank separation barrier, the International Court of Justice suggests that had the barrier been built within sovereign Israeli territory there would be no basis for a legal challenge.[3] This determination is explicitly made in the Israeli Supreme Court’s landmark ruling on that barrier.[4] And so, the act of erecting a border fence would not in and of itself seem to fall outside the legitimate exercise of state sovereignty. Of the dozens of separation barriers that have been or are being constructed around the world, from India to Saudi Arabia to the United States, I have not seen any successfully challenged on the basis of international law. Moreover, the government of Egypt has itself stated that it has no objections to the construction of the barrier, so long as it is built on Israeli territory.

There is, however, another element that must be considered when assessing the legality of the separation barrier. And to do so, we are required to look as far away as Australia. Australia takes one of the toughest stances in the world on illegal immigration; in 2001, it implemented a controversial policy (since suspended) called Pacific Solution designed to prevent asylum-seekers from lodging refugee claims by diverting them to islands that had been excised from Australia’s migration zone. As these claimants were not – at least formally – in Australian territory, Australia claimed that it was not obligated under the UN Convention Relating to the Status of Refugees (Refugee Convention) to protect them or even hear their claims, and that it was free to deport them to third countries.

A report prepared by A Just Australia and Oxfam argues compellingly that Pacific Solution does in fact violate Australia’s treaty obligations under the Refugee Convention by ignoring the principles of asylum and non-refoulement (the obligation not to expel or return refugees or claimants to places where they are likely to face persecution). Citing an article from the International Journal of Refugee Law, the report states:

[…] in Australia “non-refoulement has come to mean non-rejection at the border.” However, while refugees who were placed on Nauru and Manus Island may not have been rejected at the border, the fact that many were ultimately sent back to dangerous situations where they faced persecution falls under the category of refoulement.[5]

Moreover, the report notes, Pacific Solution “[denied] asylum-seekers who are clearly traveling to Australia […] the right to claim asylum in Australia.”[6] This is problematic, because “it [essentially says that] you cannot seek asylum here in Australia. […] You can’t physically exclude asylum-seekers getting into your territory and say that you’re complying with the [Refugee Convention].”[7] While not admitting that the policy was contrary to international law, government members have since acknowledged that Pacific Solution “tarnished Australia’s international human rights reputation.”

Israel, like Australia, is a party to the Refugee Convention. In fact, Israel was one of the Convention’s leading proponents when it was signed in 1951. I would argue that Israel, like Australia, has a general obligation to allow asylum-seekers wishing to apply for refugee protection on its territory to do so, and further, that forcing claimants at the border to turn back to Egypt violates the principle of non-refoulement. It is true that, unlike Pacific Solution, the proposed barrier is a passive rather than active means of exclusion; however, its consequences for asylum-seekers are virtually the same. While countries have the legal right to build walls to protect themselves from terrorism, smuggling, or illegal entrance by economic migrants, building a wall primarily to prevent asylum-seekers from lodging refugee claims certainly violates the spirit (if perhaps not the letter) of the Refugee Convention and customary international law.

Israel, like many other countries in the region and in the world, is dealing with a serious refugee crisis, and the current trends are not sustainable. It needs to work with the international community to find solutions that fit within an appropriate legal and normative framework. Building a wall designed to altogether seal the border to asylum-seekers is not one of them.

–

Daniel Haboucha interned as a Claims Coordinator at the African Refugee Development Center in Tel Aviv, Israel during the summer of 2010.

[1] http://www.independent.co.uk/news/world/middle-east/israel-orders-new-fence-to-keep-out-african-migrants-1864827.html.

[2] According to the CIA’s World Factbook (https://www.cia.gov/library/publications/the-world-factbook/geos/is.html), Israel’s border with Egypt is 266 km; with Gaza 51 km; with Jordan 238 km; with Lebanon 79 km; with Syria 76 km; and with the West Bank 307 km. According to B’tselem (http://www.btselem.org/english/Separation_Barrier/Statistics.asp), the length of Israel’s West Bank separation barrier is 709 km, due to its frequent incisions into the West Bank.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136 (ICJ) at para. 68.

[4] Beit Sourik Village Council v. The Government of Israel (2004) HCJ 2056/04 (Beit Sourik) at para. 10.

[5] Bem, Kazimierz et al. “A Price Too High – the cost of Australia’s approach to asylum seekers” (August 2007) at p. 45. Retrieved from http://www.ajustaustralia.com/resource.php?act=attache&id=213.

[6] Ibid. at p. 46.

[7] Ibid. citing Mitchell and Henry.