The Association of the Palestinian Community in the UK The Centre for Islamic and Middle Eastern Law and The Sir Joseph Hotung Programme The Israel- Palestine Conflict, the Case of the War on Gaza: Where Do The Legalities Lie? Sunday 1 March 2009 10.00am – 5.00pm Brunei Gallery Lecture Theatre, SOAS Programme 10.00-10.30: Doors open. Tea and coffee will be available 10.30-11.15 Panel I: Introduction and Welcome Welcome : HH Eugene Cotran (SOAS), Michel Massih QC (Tooks) and Ian Edge (SOAS) Introduction : Elias Khoury (senior advocate, Jerusalem). Mr Khoury will outline how the recent conflict unfolded from the perspective of Israel and the West Bank, and the legal responses to it. Break: 11.15-11.30 11.30-12.30 Panel II on the Use of Force (jus ad bellum) This panel will examine claims of self defence, etc given at the beginning of the conflict in the light of international law. Chair: Prof Lynn Welchman (SOAS) Panel members: Prof Iain Scobbie (SOAS), Prof Rob Cryer (Birmingham) Lunch: 12.30-13.30 (kindly provided by the Association of the Palestinian Community in the UK) 13.30-15.00 Panel III on Humanitarian Law Issues (jus in bello) This would examine issues in relation to the conduct of the conflict. Chair: Dr Rosemary Hollis (City) Panel members: Prof Françoise Hampson (Essex), Prof Steven Haines (Geneva Centre for Security Policy, by telephone), Dr Aeyal Gross (Tel Aviv University) Break 15.00-15.15 15.15-16.45 Panel IV on Post Conflict Issues To address post conflict issues such as fact-finding, war crimes investigations and trials. Chair: Sir Geoffrey Bindman Panel members: Michel Massih QC (Tooks), Stephen Kay QC (9 Bedford Row), Prof Rob Cryer (Birmingham) 16.45-17.30 Closing remarks and thanks Panel II on the Use of Force (jus ad bellum) Below are some possible lines of discussion and questions that have been suggested to the panel: The issue of the resort to force What is the applicable law? Was Israel correct to assert that its right to self defence under Article 51 applied? Was Jordan correct to assert that the Israeli was an act of aggression? What level of response is justifiable under the law of self defence? The issue of the ceasefire What status do ceasefires have under international law? Would the fact there had been one be enough to justify Israel invoking its Article 51 right of self defence? Is the siege an act of war or a form of collective punishment? What is the law relating to belligerent reprisals? Could this justify the military action taken by either side? Shimon Peres’ statement clearly indicated Israel’s intention to impose the action in part as a form of collective punishment on the people of Gaza. This is not justifiable under the laws relating to the conduct of hostilities or under the laws relating to occupied territory. Is it justifiable under rules relating to the resort of force? The issue of the status of the territory The Palestinian letter asserts that Gaza is occupied. Is this correct? Is it important to know what the status of Gaza is in relation to the laws relating to the use of force? What are the legal implications flowing from this? If Gaza is occupied, Article 6 of the Fourth Geneva Convention states that “In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.” The applicability of article 6 was upheld by the ICJ in the Wall Opinion. Does it have any effect in this situation? Panel III on Humanitarian Law Issues (jus in bello) Below are some possible lines of discussion and questions that have been suggested to the panel: The applicable law What is the applicable law? What are the fundamental principles which should govern the conduct of an armed conflict? Is it relevant whether the conflict is classified as international or non-international? Is Hamas bound by international law? Do different rules apply to each party? Are the armed forces under any armed duty to protect the civilian population during an armed conflict such as to provide safe havens? The principle of proportionality What is a “legitimate military objective?” What does the requirement that an operation be “proportionate” actually mean? Issues relating to distinction and targeting Is it enough for a party to simply assert they targeted a military objective or that they made efforts to distinguish between combatants and civilians? What precautions, if any, should be taken in an attack? Should the safety of armed forced have greater priority in an attack than the lives of the civilian population? What are human shields? Does their presence make a target immune from attack? Issues related to weaponry Is it legitimate to target built up areas Does the indiscriminate nature of Hams’ rockets delegitimize their use in all circumstances? Is it illegitimate to use weapons such as white phosphorous and flechettes in built up areas inhabited by civilians? There have been allegations that weaponry was being tested during this conflict. Is that lawful? Other issues There were reports in Haaretz that both Hamas and the IDF were posing as members of the opposing armed forces. Does this beach the laws of armed conflict? 'If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries.” (comment by Colonel (res.) Daniel Reisner, reported in Haaretz, Feb 5th 2009) What are the panel’s reactions to this comment? Panel IV on Post Conflict Issues Below are some possible lines of discussion and questions that have been suggested to the panel: Issues relating to breaches of IHL and war crimes What is the difference between a breach of the LoAC and a war crime? Are there different legal implications flowing from each? Does it make a difference whether the conflict is classified as international or noninternational, or the territory classified as occupied? Where and by whom could war crimes be prosecuted? What are the procedural issues which would have to be met in prosecuting any war crimes? What are the evidential issues? Does the ICC have a role to play? Issues regarding fact finding investigations Is there a requirement to investigate every alleged war crime in order to establish that one has happened? What is the function of fact finding investigations? What are the pre-requisites for fact finding investigations? Who can undertake fact-finding? Is there a legal duty for parties to a conflict to cooperate with fact-finding investigations? Humanitarian issues What are the humanitarian duties placed on the parties to the conflict and also of third parties? Does international law place any other significant duties on third parties to a conflict? Panelists’ Biographies Sir Geoffrey Bindman Sir Geoffrey founded Bindmans in 1974 which remains a leading firm for civil liberties work in the United Kingdom. Throughout his distinguished legal career, Sir Geoffrey has specialised in civil liberty and human rights issues. He is a Visiting Professor of Law at University College London and at London South Bank University, an Honorary Fellow in Civil Legal Process at the University of Kent, and a Fellow of the Society of Advanced Legal Studies. He has represented the International Commission of Jurists, the International Bar Association, Amnesty International, and other bodies in human rights missions worldwide including Namibia, Malaysia, Israel and the Occupied Territories, and Northern Ireland. In 1988 he was a member of a UK mission monitoring the constitutional referendum in Chile and in 1994 was a United Nations Observer at the first democratic elections in South Africa. (www.bindmans.com) Eugene Cotran HH Eugene Cotran was born in Jerusalem, Palestine in 1938 during the time of the British Mandate. He was educated at Victoria College in Alexandria and went to the universities of Leeds and Cambridge. He has been associated with SOAS since 1960; first in the field of African law and thereafter in the fields of Middle Eastern law. He practiced at the Bar, mainly in the Privy Council and the Commonwealth and was a High Court Judge in Kenya for 5 years. Thereafter he practiced again at the Bar and from 1992 until 2007 he was a circuit judge in England. He is a visiting Professor at SOAS and is the Chairman of CIMEL. He now does consultancy work in the Middle East and the Arabian Gulf. Judge Cotran did a lot of work in Palestine in the years after the Oslo Agreements in relation to the Basic Law, the unification of the laws of Gaza and the West Bank and he is a member of the board of the Palestinian Human Rights Commission. Rob Cryer Professor Cryer obtained his undergraduate law degree in Cardiff Law School, then moved to the School of Law in Nottingham where he obtained his LLM and PhD degrees in 1996 and 2000 respectively. He was a lecturer in the University of Manchester from 1999-2001 before returning to the School of Law, University of Nottingham in September 2001. He moved to Birmingham in April 2007. His major teaching and research interests are in international law and criminal law. In addition to a number of articles and book chapters he is the author of Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: CUP, 2005) and co-author (with Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst) of An Introduction to International Criminal Law and Procedure (Cambridge: CUP, 2007). He has recently finished writing a book on The Tokyo International Military Tribunal for Oxford University Press. He is book review editor of the Journal of Conflict and Security Law. (http://www.law.bham.ac.uk/staff/profiles/cryer.shtml) Ian Edge Ian Edge is a founding Directo and present Director, of the Centre of Islamic and Middle East Law (CIMEL) at the School of Oriental and African Studies in the University of London where teaches on Islamic and Middle East Law and writes academic articles on these subjects. As a barrister at 3 Paper Buildings, Temple, Ian regularly advises on Middle East law, particularly in the fields of civil and commercial law, banking law (including Islamic banking and finance issues), estate planning (including Islamic compliant trusts and succession issues) and the conflict of laws. Aeyal Gross Dr. Aeyal Gross is on sabbatical from 2007 - 2009 at the University of London, as a research fellow at the Institute of Advanced Legal Studies and teaching as a visitor at the School of Oriental and African Studies (SOAS), from Tel Aviv Law School where he has taught since 1996. He received his LL.B. in 1990 from TAU (magna cum laude) and his S.J.D. in Harvard Law School in 1996. In 1998 he was awarded the Diploma in Human Rights from the Academy of European Law, European University Institute, Florence. In 1995 he was intern with the European Commission on Human Rights in Strasbourg. Dr. Gross is a member of the Board of the Association for Civil Rights in Israel. He was a fellow with the Stellenbosch Institute for Advanced Studies in South Africa and is a board member of the Concord Center for the Interplay between International Norms and Israeli Law and member of the Academic Committee of the Minerva Center for Human Rights in Tel-Aviv University. In 2003-2006 he taught in the summer term in Columbia University’s School of International and Public Affairs. (http://www.law.tau.ac.il/Eng/?CategoryID=242&ArticleID=181) Steven Haines Professor Steven Haines is Head of the Security and Law Programme at the Geneva Centre for Security Policy (GCSP) which he joined in October 2008 from Royal Holloway College , University of London , where he was Professor of Strategy and the Law of Military Operations in the International Law Department, between 2003-06. He is also Visiting Professor of Law, Strategy and Military Operations at Cranfield University (Shrivenham). He obtained his first degree in International Relations with Public International Law from the University of Aberdeen, from where he also obtained his PhD for a thesis about the legal framework for the conduct of peacetime military operations within the UK 's zones of maritime jurisdiction. He also holds a University of London LLM degree after reading International Law at both the London School of Economics and University College London Steven Haines served for over thirty years in the British Royal Navy. His operational service with the Royal Navy included Mozambique, Northern Ireland, Pristina (Kosovo) and Freetown (Sierra Leone). He served a total of eight years in the UK Ministry of Defence, on both the Naval Staff and the Central Policy Staff, and was the author of the 2nd Edition of the UK 's strategic doctrine ( British Defence Doctrine , 2001). Between 1999-2003 he chaired the Editorial Board of the UK 's official Manual of the Law of Armed Conflict (Oxford University Press, 2004) and compiled the Handbook on the Law of Maritime Operations promulgated for use during operations against Iraq in 2003. (http://www.gcsp.ch/e/about/staff/Faculty/haines.htm) More recently he has provided legal advice concerning Guantanamo Bay, the assassination of Rafik Hariri in Lebanon and matters relating to the Darfur situation currently before the International Criminal Court. Francoise Hampson Professor Francoise Hampson was an independent expert member of the UN SubCommission on the Promotion and Protection of Human Rights from 1998-2007. She previously taught at the University of Dundee. She has acted as a consultant on humanitarian law to the International Committee of the Red Cross and taught at Staff Colleges or equivalents in the UK, USA, Canada & Ghana. She represented Oxfam and SCF (UK) at the Preparatory Committee and first session of the Review Conference for the Certain Conventional Weapons Convention. Professor Hampson has successfully litigated many cases before the European Court of Human Rights in Strasbourg and, in recognition of her contribution to the development of law in this area, was awarded Human Rights Lawyer of the Year jointly with her colleague from the Centre, Professor Kevin Boyle. She has taught, researched and published widely in the fields of armed conflict, international humanitarian law and on the European Convention on Human Rights. She is currently working on international law issues relating to private military/security companies and is a member of the independent panel appointed by the ICJ to examine the conduct of the parties to the conflict in Lebanon in 2006. (http://www2.essex.ac.uk/human_rights_centre/people/staff/hampson.shtm) Rosemary Hollis Dr Rosemary Hollis is Director of the Olive Tree Scholarship Programme at City University, London. The Programme enables talented young Palestinians and Israelis to take degrees at City University and while doing so develop a greater understanding of each other and a commitment to finding a shared future for the peoples of the region. She took up this post in March 2008 having completed three years as Director of Research at Chatham House (the Royal Institute of International Affairs) in London. The focus of her own research and writing is foreign policy and security issues in the Middle East, particularly European, EU, UK and US relations with the region and Transatlantic differences over the issues. From 1995 to 2005 Rosemary Hollis was Head of the Middle East Programme at Chatham House, having spent five years in a similar post at the Royal United Services Institute for Defence Studies. During the 1980s she was a lecturer in Political Science and International Affairs at George Washington University in Washington, DC, where she gained a Ph.D. in Political Science. She also holds a BA in History and an MA in War Studies from the University of London, King’s College. (http://www.arct.cam.ac.uk/conflictincities/CV-rosemary_hollis.html) Steven Kay QC Steven Kay was appointed QC in 1997 and is a leading practitioner in international criminal law. He has appeared before the International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR). He was Defence Counsel in Prosecutor v Tadic which was the first case prosecuted before the ICTY and the first war crimes trial held since Nuremberg and Tokyo. He acted in the trial of the former Serbian President Slobodan Milosevic first as Amicus Curiae and subsequently as assigned Defence Counsel. He was Lead Defence Counsel in Prosecutor v Alfred Musema (ICTR). He is a member of the International Criminal Law Bureau (www.internationalcriminallawbureau.com) and a member of chambers at 9 Bedford Row (www. 9Bedfordrow.co.uk). Elias Khoury Elias Khoury is a Jerusalem-based Arab-Israeli lawyer practicing in corporate and commercial, land and administrative laws. He has represented clients at all Israeli court levels, including the Supreme Court of Israel, in cases challenging acts of the military and civil authorities in the Occupied Territories and acts of the different branches of the Israeli government concerning, inter alia; settlements, house demolitions, decisions of the Planning and Building Commissions in Israel and the Occupied Territories, land expropriations, acts of the Custodian of the Absentee Property, residency cases, banking, and water allocations. Michel Massih QC Michel Massih was appointed QC in 1999 and practices in criminal law and international criminal law. He is a leading expert in the defence of those prosecuted for terrorist offences in England. He has advised the Syrian Government on legal issues concerning the investigation into the assassination of Rafik Hariri and is currently instructed concerning matters related to the Darfur situation currently before the International Criminal Court. He pioneered the concept of putting on trial senior Israeli officials in the United Kingdom Courts for war crimes. This has included acting on behalf of ex officers of the British Palestine Police seeking a warrant for the arrest of Israeli Prime Minister Yitzhak Shamir and a case brought against General Shaul Mofaz. In that case he was instructed on behalf of the family of Tom Hurndal, the British photographer murdered by an Israeli soldier in Gaza. He was recently awarded the prestigious outstanding criminal lawyer of the year award. He is a member of Tooks Chambers (www.tooks.co.uk) and a founding member of the Association of the Palestinian Community in the UK. Iain Scobbie Professor Scobbie is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East. He studied at the Universities of Edinburgh and Cambridge, and at the Australian National University and his doctoral dissertation examined legal reasoning and the judicial function in the International Court. Professor Scobbie maintains a special interest in international humanitarian law; international adjudication, particularly the role of the International Court of Justice; and in the theory of international law. He is a member of the Executive Board of the European Society of International Law, and of its International Legal Theory interest group; of the Governing Board of the Scottish Centre for War Studies, which is based in the University of Glasgow; of the Lieber Society on the Law of Armed Conflict; and of the International Advisory Council of Diakonia's International Humanitarian Law Programme, which is based in Jerusalem. He is also a member of the Scientific Advisory Board of the European Journal of International Law, and of the Commissioning Panel of the AHRB/ESRC Religion and Society programme. (http://www.soas.ac.uk/staff/staff31777.php) Ian is a graduate of Cambridge University having studied with Prof Derek Bowett for his LLM in International Law. Before coming to SOAS he taught International Law with Prof Michael Akehurst at Keele University. Al-Haq vs. UK Government Al Haq in conjunction with Phil Shiner of Public Interest Lawyers and support from Human Rights Legal Aid Trust filed a claim for judicial review on Tuesday 24th February 2009 against the UK Government over its failure to comply with its obligations under the Geneva Convention vis-a-vis Israel’s activities in the Occupied Palestinian Territories. As a High Contracting Party to the Geneva Conventions, the UK has obligations under international law regarding Israel’s actions in the OPT, both pre and post “Operation Cast Lead.” The ICJ in its Advisory Opinion concerning the legal consequences of the construction of a wall inside the Occupied Palestinian Territories, reminded States that "all the States parties to the Fourth Geneva Convention, while respecting the Charter and international law, are under an obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention." Article 1 and Article 146 of the Fourth Geneva Convention oblige High Contracting Parties to "ensure respect" for the Convention, and to search for and prosecute perpetrators of grave breaches of the Convention respectively. In its application for Judicial Review, Al-Haq is calling for the UK Government to: a. Denounce publicly Israel’s actions in Gaza and in connection with the continuing construction of the Wall. b. Suspend with immediate effect it’s arms related export licensing approval system so that no more UK companies can export arms related products until Israel complies with its human rights obligations. c. Insist that the EU suspend the preferential trading agreement with Israel until it demonstrates full respect for its human rights obligations. d. Suspend all UK Government financial, military or ministerial assistance either directly to Israel or to UK companies exporting military technology or goods to Israel. e. Place before the police any evidence of war crimes committed by Israel’s agents intending to enter UK jurisdiction For more information www.alhaq.org www.publicinterestlawyers.co.uk www.hrlegalaid.com You are invited to the public presentation of a year-long study: Occupation, Colonialism, Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian territories under international law 16 May, Brunei Gallery, SOAS This study considers whether Israeli practices in the OPT are consistent with colonialism and apartheid according to definitions provided by international law and the consequent implications for international action and responsibility, including prospects for bringing the question to the International Court of Justice. Research was conducted by an international team of experts in human rights law and international humanitarian law, including Michelle Burgis, Shane Darcy, Max du Plessis, Fatmeh El-Ajou, Hassan Jabareen, Victor Kattan, Michael Kearney, Stephanie Koury, Godfrey Musila, John Reynolds, Rina Rosenberg, Iain Scobbie, Michael Sfard, Virginia Tilley, and Mays Warrad. The study was supported by the Middle East Project (MEP), a project of the Democracy and Governance Programme of the Human Sciences Research Council (HSRC), South Africa. This event is co-hosted by the HSRC Middle East Project and the Sir Joseph Hotung Research Project in Law, Human Rights and Peace Building in the Middle East, SOAS. For more information, contact: the MEP at +27-21-466-7924, firstname.lastname@example.org, or the Hotung Research Project at email@example.com.
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