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The United Kingdom Supreme Court heard arguments this week in two critical cases concerning the UK’s role in the United States’ rendition, detention, and interrogation efforts in the years after 9/11. In both cases, the UK government is arguing that the claims cannot be considered by English courts. If the government succeeds, one potential practical implication would be to limit the extent to which individuals could seek redress for wrongs done against them, including torture, where the alleged wrongs involve other States. The first case, Belhaj & another v. Straw & others, involves one of the most controversial claims of rendition involving the UK. The government has appealed against the lower court’s ruling, which found against the government for its alleged role in the 2004 abduction of Libyan national, Abdul-Hakim Belhaj, and his wife, and their subsequent rendition to Libya and mistreatment at the hands of US and other foreign officials. In December 2013, the High Court dismissed a civil suit brought by Belhaj on the basis that it lacked jurisdiction because of the act of state doctrine (a rule of English law which prevents courts from considering claims where the court would have to examine the acts of a foreign state). But in October 2014, the UK Court of Appeal ruled that the act of state doctrine did not preclude Belhaj’s claim against the British government, citing, among other reasons, the universal condemnation of torture and the “stark reality” that these allegations would escape judicial investigation unless the English courts were able to exercise jurisdiction over the case.

Specifically, the Court found that: [T]he present case falls within the established limitation on the act of state doctrine imposed by considerations of public policy on grounds of violations of human rights and international law and that there are compelling reasons requiring the exercise of jurisdiction. The Court of Appeal also rejected the government’s controversial attempt to invoke the domestic law on immunity of foreign states from domestic proceedings as a bar to any claim against the UK government whenever the conduct of foreign states may be called into question, a concept known as the doctrine of indirect impleader in state immunity.

The government’s appeal against the Court of Appeal’s decision in Belhaj is being heard jointly with the appeal in another case, Ministry of Defense and the Foreign and Commonwealth Office v. Yunus Rahmatullah, involving a Pakistani citizen captured by British forces in Iraq. In 2004, Rahmatullah was transferred from UK to US custody in Iraq and thereafter rendered to Bagram air base in Afghanistan, with UK knowledge and in breach of Article 45 and Article 49 of the Fourth Geneva Convention. Held by the US without trial for more than a decade, Rahmatullah was denied access to a lawyer and subjected to numerous acts of torture and mistreatment before being repatriated to Pakistan and released without charge in May 2014. He now seeks to sue the British government for damages. The main thrust of the UK government’s argument, in both cases, is that the litigation will most likely damage the UK’s relationship with the United States. If accepted by the Supreme Court, this argument may lead the Court to find that it lacks jurisdiction to hear the claims. The far-reaching implications of such a ruling would be to protect individual states and their institutions from the scrutiny of British courts in cases where it is alleged that they acted in concert with other states, even if their actions were unlawful. Such an expansive interpretation of a “but they did it too” excuse would constitute a notable limitation on British courts’ jurisdiction in the context of events arising from the so-called global war on terror. Since Belhaj and Rahmatullah, and others like them, are unlikely to secure redress directly in a US court, a ruling in favor of the government would essentially preclude them from securing redress in any forum. You can find the full Court of Appeal judgment here and below.   Belhaj v. Straw – Court of Appeal Judgment (30 Oct 2014) by Just Security

Meretz Party head, Israeli Member of Knesset (MK) Zehava Gal-On, stated Saturday that the theory of Prime Minister Benjamin Netanyahu of running the conflict has failed, and added that the only solution is ending this conflict through a political solution. “Israel cannot just ignore the Quartet Committee report,” Gal-On said, “Israel must understand that the only solution to stopping the attacks and the escalation is reaching a political soliton to the conflict, and ending this occupation.” “The conflict is running us; the recent attacks and threats have proven that the calm we’ve seen was temporary,” the Israeli official said, “Netanyahu’s theory of running the conflict has completely collapsed, and now this conflict is running us.” The Israeli MK also said that what several politicians are proposing is the use of more military force, and iron fist policies that only kill hope. “What they are suggesting is not different than witchcraft and deception,” she added, “It’s like placing a small bandage on a severed hand.”

In its July 1st report, the Quartet Committee (UN, Russia, EU and USA) reiterated the need for a negotiated two-state solution as the only way to reach a lasting peace agreement that ensures Israel’s security and the meets the Palestinian aspirations of independence and sovereignty, by ending the occupation that began in 1967, and resolving all permanent status issues. It also denounced the “ongoing construction and expansion of Israeli settlements in the occupied Palestinian territories”, and the Palestinian Authority’s “lack of control in Gaza, and called on both Israel and the Palestinian Authority to resume meaningful negotiations that resolve all final status issues.” The Quartet Committee also called on the Israelis and Palestinians to “independently demonstrate, through policies and actions, a genuine commitment to the two-state solution and refrain from unilateral steps that prejudge the outcome of final status negotiation.”

Resolution 487 (1981) Adopted by the Security Council at its 2288th meeting on 19 June 1981 The Security Council, Having considered the agenda contained in document S/Agenda/2280, Having noted the contents of the telegram dated 8 June 1981 from the Foreign Minister of Iraq (S/14509), Having heard the statements made to the Council on the subject at its 2280th through 2288th meetings, Taking note of the statement made by the Director-General of the International Atomic Emergency Agency (IAEA) to the Agency's Board of Governors on the subject on 9 June 1981 and his statement to the Council at its 2288th meeting on 19 June 1981,

Further taking note of the resolution adopted by the Board of Governors of the IAEA on 12 June 1981 on the "military attack on the Iraq nuclear research centre and its implications for the Agency" (S/14532), Fully aware of the fact that Iraq has been a party to the Treaty on the Non-Proliferation of Nuclear Weapons since it came into force in 1970, that in accordance with that Treaty Iraq has accepted IAEA safeguards on all its nuclear activities, and that the Agency has testified that these safeguards have been satisfactorily applied to date, Noting furthermore that Israel has not adhered to the non-proliferation Treaty, Deeply concerned about the danger to international peace and security created by the premeditated Israeli air attack on Iraqi nuclear installations on 7 June 1981, which could at any time explode the situation in the area, with grave consequences for the vital interests of all States,

Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations", 1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct; 2. Calls upon Israel to refrain in the future from any such acts or threats thereof; 3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;

On the fourth day of Israel's most recent onslaught against Gaza's Palestinian population, President Barack Obama declared, “No country on Earth would tolerate missiles raining down on its citizens from outside its borders.” In an echo of Israeli officials, he sought to frame Israel's aerial missile strikes against the 360-square kilometer Strip as the just use of armed force against a foreign country. Israel's ability to frame its assault against territory it occupies as a right of self-defense turns international law on its head.  A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law. 

Admittedly, the enforceability of international law largely depends on voluntary state consent and compliance. Absent the political will to make state behavior comport with the law, violations are the norm rather than the exception. Nevertheless, examining what international law says with regard to an occupant’s right to use force is worthwhile in light of Israel's deliberate attempts since 1967 to reinterpret and transform the laws applicable to occupied territory. These efforts have expanded significantly since the eruption of the Palestinian uprising in 2000, and if successful, Israel’s reinterpretation would cast the law as an instrument that protects colonial authority at the expense of the rights of civilian non-combatants.  

International Law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility.  The extent and breadth of force constitutes the distinction between the right to self-defense and the right to police. Police authority is restricted to the least amount of force necessary to restore order and subdue violence. In such a context, the use of lethal force is legitimate only as a measure of last resort. Even where military force is considered necessary to maintain law and order, such force is circumscribed by concern for the civilian non-combatant population. The law of self-defense, invoked by states against other states, however, affords a broader spectrum of military force. Both are legitimate pursuant to the law of armed conflict and therefore distinguished from the peacetime legal regime regulated by human rights law. 

Israeli Major-General Giora Eiland has urged that all food and water be cut off to Gaza’s nearly 1.8 million Palestinian residents – a major war crime and precisely the “starve or surrender” policy which the United States has condemned when used in Syria. Eiland, the Israeli government’s former national security advisor, argues that Gaza should be considered an enemy “state.” “Since Gaza is in fact a state in a military confrontation with us, the proper way to put pressure on them is to bring to a full stop the supplies from Israel to Gaza, not only of electricity and fuel, but also of food and water,” he wrote in a Hebrew-language op-ed on Mako, a website affiliated with Israel’s Channel 2 television. “A state cannot simultaneously attack and feed the enemy, while he is shooting at you, because this gives the other country a breathing space – and again I am referring to Gaza as a country, because the regime there is supported by its people,” Eiland adds.

Eiland appears to believe that the fiction that Gaza is a sovereign “state” would somehow lessen culpability for what would amount to massive war crimes and crimes against humanity. Under Article 55 of the Fourth Geneva Convention, “the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” Under international law, Israel’s 2005 “disengagement” from Gaza has not ended its military occupation of the territory because Gaza remains under the “effective control” of Israel. Yet Israel has long violated its obligation by deliberately restricting the basic needs of Gaza’s population and deliberately destroying their food sources including agricultural land, poultry and dairy farms.

Israel’s deliberate attacks on Gaza’s civilian infrastructure have created a “water disaster,” already depriving every single person of access to a safe and secure supply of water. Israel’s brutal siege is precisely what the Palestinian resistance in Gaza is currently fighting to end.

Kyung-wha Kang, Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator, stated that at least 18 medical facilities, including five UNRWA health clinics, had been hit by airstrikes and shelling since the beginning of the fighting.  The seven-year blockade had destroyed Gaza’s economy, with high unemployment rates and growing dependence on international assistance.  The United Nations was feeding 67 per cent of the population.  The international community and the parties to the conflict had to live up to their obligations.  Lance Bartholomeusz, Director of Legal Affairs of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, said that by yesterday evening, 22 July, approximately 118,000 Palestinians had sought refuge in 77 UNRWA schools.  That was about 6 per cent of the population of Gaza and double the peak in UNRWA shelters during the 2008 to 2009 conflict.  The conflict had not spared UNRWA premises.  Makarim Wibisono, Special Rapporteur for the situation of human rights in the Occupied Palestinian Territory, speaking on behalf of the Coordination Committee of the Special Procedures of the Human Rights Council, said in addition to at least 599 Palestinians killed, the destruction of numerous houses had left several thousand families homeless.  At the same time, the right of the Palestinian people to resist occupation could not justify the launching of thousands of rockets and mortars directed against Israeli civilians. 

NAVI PILLAY, United Nations High Commissioner for Human Rights, said since Israel announced its military operation “Protective Edge” on 7 July, Gaza had been subjected to daily intensive bombardment from the air, land and sea, employing well over 2,100 air strikes alone.  The hostilities had resulted in the deaths of more than 600 Palestinians, including at least 147 children and 74 women.  As in the two previous crises in 2009 and 2012, it was innocent civilians in the Gaza Strip, including children, women, the elderly and persons with disabilities, who suffered the most.  According to preliminary United Nations figures, around 74 per cent of those killed so far were civilians, and thousands more had been injured.  Hundreds of homes and other civilian buildings, such as schools, had been destroyed or severely damaged in Gaza, and more than 140,000 Palestinians had been displaced.  Two Israeli civilians had also lost their lives and between 17 and 32 others had been reported injured as a result of rockets and other projectiles fired from Gaza, and 27 Israeli soldiers had been killed during military operations in Gaza.  The indiscriminate firing by Hamas and other armed groups of more than 2,900 rockets and mortars from Gaza continued to endanger the lives of civilians in Israel, and Ms. Pillay once again condemned such indiscriminate attacks.  It was unacceptable to locate military assets in densely populated areas or to launch attacks from such areas.  However, international law was clear - the actions of one party did not absolve the other party of the need to respect its obligations under international law.

he also warned that the current situation in Gaza overshadowed the backdrop of heightened tensions in the occupied West Bank, including East Jerusalem and expressed concern about a significant rise in incitement to violence against Palestinians, including through social media.  Only those responsible for criminal acts could legitimately be punished, she said, individuals should not be subject to collective penalties.