In February 2010, Avichai Mandebilt, the IDF’s chief military advocate-general
was quoted in a diplomatic cable as saying that a successful Palestinian
Authority attempt to take Israel to the International Criminal Court (ICC) on
charges of war crimes would be considered an act of war by the IDF.
statement can be perceived as rather bizarre for two reasons. First and
foremost, the Palestinian Authority has no real ability to take any case to the
ICC; its advances have been rejected every time and don’t exactly look set to
improve with the breakdown of the PA’s unity deal. Secondly, and perhaps more
alarmingly, the statement exhibits hostility towards the international legal
system, which is certainly a worrying trait in relation to the IDF’s top legal
position. Nearly one week ago, Danny Efroni replaced Mandebilt, however it is
fair to assume that Efroni inherited a staff that possesses not-so-subtle traces
of Mandebilt’s positions, ideals and political culture.
The problem with
this outward hostility towards the recognized principles of international law is
that, while Security Council vetoes may prevent full membership, the majority of
states in the UN General Assembly have made clear their intentions to grant the
Palestinian Authority non-member state observer status in the UN.
regardless of what materializes in the UN Security Council, the Palestinian
Authority will soon be a recognized state in the UN General Assembly and fall
under the ICC’s jurisdiction. Consequently, Israel will then be susceptible to
legal action from the Palestinian Authority, and may be caught off guard as they
are marched to court on war crimes charges – which the IDF will consider a
declaration of all-out war. At least, this is what fear-mongers would have the
However, the Palestinian declaration of statehood has the
potential to shift the legal landscape of the Israeli- Palestinian conflict so
radically that all of these concerns will become an afterthought.
fact, it’s quite possible that Israel, at least within the legal landscape, may
actually benefit from the Palestinian statehood bid. There are many examples of
currently disputed legal issues – Israel’s targeted killing of militants in
Gaza, for one, Turkey’s desire to prosecute Israel over the Mavi Marmara
incident, for another – which could potentially shift in Israel’s benefit. For
the sake of brevity, we shall look at only one instance here, that of the highly
controversial Gaza blockade.
ALTHOUGH THE UN Palmer Report recently
declared the blockade to be legal, the document is not a definitive legal
opinion, and has been hotly contested by a raft of UN experts. These experts
claim that the report was more concerned with the nature of the blockade and its
implementation, rather than its controversial nature and whether or not Israel
has a right to blockade Gaza at all.
The entire debate is elegantly
explained here by Dr.
Kevin Jon Heller of Melbourne University.
Heller proposes, Israel is in somewhat of a dilemma
concerning its legal arguments for the blockade: Israel’s case for the legality
of the blockade stems from the London Declaration and from Article 97 of the San
Remo Manual on International Law Applicable to Armed Conflicts at Sea, both of
which allow for naval blockades in times of international armed conflict but
make no provision for blockades in non-international armed conflicts. Therefore,
if the conditions for international armed conflict are not realized in the
Israel-Hamas conflict, then the blockade cannot be considered
Ironically, it is Israel’s own rhetoric concerning Gaza that
undermines its case for the legality of the blockade by insinuating that the
conflict with Hamas in Gaza does not qualify as an international armed conflict.
Although the Israeli Supreme Court ruled in a prior case that Gaza and Israel
were engaged in international armed conflict, this was in reference to events
prior to the 2005 Israeli withdrawal from the Gaza Strip, since which Israel has
insisted that it no longer occupies Gaza. Since Israel no longer occupies Gaza
and Gaza, according to Israel, is not part of a recognized state, then the
conflict cannot be international and the aforementioned statutes don’t
As a result, Gaza remains in legal purgatory, where it is
impossible to reach consensus over the legality of Israel’s actions, largely
because of the rhetoric Israel displays when discussing the conflict. In this
state of flux, Israel is coming under constant attack from many sides that see
the potential weakness in Israel’s arguments and smell the opportunity to put
her in a corner where Israel will be forced to make strategic concessions,
either admitting to the illegality of the blockade or to being an occupying
force in Gaza – both things that Israel fervently denies. However, a Palestinian
State receiving recognition by the UN would solve this dilemma.
Israel would be forced to recognize the West Bank as “occupied territory.”
However, such a development is virtually inevitable, as the “disputed
territories” argument, recently rehashed by Deputy Foreign Minister Danny
Ayalon, holds no legal weight outside of Israel and her most zealous
In return, Israel would gain unequivocal recognition of the
conflict in Gaza – certainly the more problematic of the two Palestinian
territories – as international, rendering Israel’s right to blockade Gaza
undeniable. Such action would make moot Palestinian attempts to prosecute Israel
over the blockade, and would help avoid the “legal war” that Mandebilt was so
afraid of.The writer is an independent journalist and photographer
covering Middle East affairs. He is the communications director for
Friend-a-Soldier and regular contributor to the Israeli Centrism website.