Israel’s other refugee question

This past August, visiting Israel for the first time and staying with a friend in south Tel Aviv, I was immediately struck by the number of African faces I saw in her neighbourhood. These Africans, I was informed, were migrants mostly from Eritrea, Darfur, and Southern Sudan (now the Republic of South Sudan) who were seeking protection in Israel under the 1951 Refugee Convention. You see, until that point, my knowledge of Israel’s refugee issues extended only to the question of the right of return of the Palestinians expelled in 1948 and their descendants. As a “final status” issue in Palestinian-Israeli negotiations and one that cuts to the core of the national identities of both factions, it is easy to understand how this new class of African refugees can escape the attention of human rights lawyers and advocates abroad.

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows,…

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The duty to recognize Palestine

Last week, culminating two years of intensive state-building efforts, Palestine Liberation Organization Chairman Mahmoud Abbas formally applied to the United Nations for the admission of the state of Palestine as its newest member. While the outcome and consequences of this controversial bid are yet to be seen, I wish here to consider its legal implications and particularly the third-party obligations to which it gives rise.

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…

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Is it ever legal to kidnap your enemies?

Palestinian engineer Dirar Abu Sisi was indicted in Israel last week on nine terrorism-related charges, after over a month in prison. Because of the gag order that has been imposed on his case, many of the details remain unknown, but speculation abounds. Did Abu Sisi develop advanced weapons for Hamas to use against Israel? Is he even a member of Hamas? Does he know the whereabouts of abducted Israeli soldier Gilad Shalit?

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…

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Between sovereign states, good fences don’t necessarily make for good neighbours

Israeli Prime Minister Benjamin Netanyahu announced this week that he intends to expedite the construction of his country’s contentious security barrier. Right, you’re probably thinking, that’s old news. Israel has been building the wall in the West Bank for eight years now. That’s not the barrier I’m referring to though. I’m talking about the proposed 266-km fence which Israel plans to start building in the coming weeks along its border with Egypt. Its primary purpose, according to Israeli government sources: to keep out African asylum-seekers .[1]

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…

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Israel v. Palestine: Coming soon to a courtroom near you

Shortly after September 11, 2001, former US general Charles Dunlap wrote an essay warning of the risk that “lawfare” – the application of international law to inflict strategic damage on an opponent with the aim of achieving military objectives – could be used against the US in its emerging War on Terror.[1] In a subsequent article, he elaborated on two mechanisms by which lawfare could be employed as an unconventional means of confronting democratic states off the battlefield: first, by exposing real or alleged violations of international law on the part of an opponent to weaken domestic public support, destabilize the government, and penalize decision-makers; second, by promoting an understanding of international law that results in the formulation of operational policy that is unnecessarily constrained and detrimental to the opponent’s military capabilities. The harm that results from both, he concludes, is ultimately self-inflicted and could be avoided by strict adherence to the rule of law.[2]

The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.

The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law. One of the most high-profile cases…

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Does the International Law of Assassination Outside of the Battlefield Make Sense?

Alan Dershowitz’s recent Huffington Post column discusses the legality of the assassination of Mahmoud al-Mabhouh, (now former) leader of Hamas’ military wing. Commentators correctly speculate that Israel was responsible. Dershowitz argues that the assassination did not violate international law. Whether or not the assassination violated international law, another important question is whether the relevant international law makes sense.

Dershowitz’s first inquiry is to determine if al-Mabhouh was a combatant vis-à-vis his killers. Accepting that the Israelis assassinated him, al-Mabhouh was a combatant—considering that he was an “active participant in the ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful anti-personnel rockets that target Israeli civilians.[1]” Now that we’ve established that al-Mabhouh was a combatant, we have to determine if there are circumstances in which international law forbids combatant assassinations. Presumably, international law does not allow assassinations of combatants under all circumstances.

Dershowitz writes that geography is the only limitation on assassinations of combatants. Had the assassination taken place in Gaza, it assuredly would have been legal. The only complication to the legality of the assassination is the fact that it took place in Dubai. Dubai law and sovereignty was violated—but nothing else. Perhaps there should be other circumstances in which assassinations of combatants are prohibited. I confess to not being an…

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Disentangling politics and law in East Jerusalem

Israeli construction in East Jerusalem is nothing new; since 1967, when Israel conquered the territory along with the rest of what had come to be known as the West Bank from neighbouring Jordan and extended Israeli administration over the entire city, Israel has settled close to 200,000 of its Jewish citizens in Jerusalem’s eastern sector (which has an Arab population of approximately 230,000).[1] Due to the acceleration of Israeli construction in recent months and renewed political will within the US administration to aggressively advance the Israeli-Palestinian peace process, East Jerusalem construction has increasingly become a source of tension between Israel and its Western allies and a focal point of media attention.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the…

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What the ICJ ruling on Kosovo could mean for Palestine

The year 2009 saw a renewed push, albeit a stunted one, for Palestinian statehood. Palestinian Prime Minister Salam Fayyad gained considerable attention in the West for his plan to oversee construction of state infrastructure from the ground up, and for his announcement that this would lead to a declaration of independence within two years. There has been notable progress, with significant growth both in the Palestinian economy and its governmental and security infrastructure. Given the current political climate in Israel, however, it seems unlikely that a bilateral peace agreement will be reached by Fayyad’s deadline. If negotiations don’t yield the results the Palestinian Authority (PA) is seeking, will it take the bold move of declaring statehood unilaterally? The Palestinians tried this gambit before, unsuccessfully, in the pre-PA days.

The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date…

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Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later…

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