Itay Epshtain Profile picture
Apr 10 12 tweets 4 min read Twitter logo Read on Twitter
Grateful that @UN_HRC expert on occupied #Palestinian territory, Dr. @FranceskAlbs raised the question of self defense claimed by an occupying power, #Israel. My own thoughts follow: Image
Self defense is understood as the inherent right of a State to use of force in response to an armed attack on it. It is one of the exceptions to the prohibition against use of force under article 2(4) of the @UN Charter and customary international law.
#Israeli claims of measures in self- defense, are disconcerting. There is no controversy about the prohibition breached by deliberate or indiscriminate attacks against civilians in Israel, but that does not absolve it from observing distinction, proportionality, and precaution.
The @CIJ_ICJ in the Wall opinion noted that while the UN Charter recognizes the existence of a right of self-defense in the case of armed attack by one State against another, Israel does not claim that the attacks against it are imputable to a foreign State.
The @CIJ_ICJ also noted that Israel exercises control in the #oPt, and the threat which it regards originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 and 1373.
Therefore Israel could not, in any event, invoke those resolutions in support of its claim to be exercising a right of self-defense. Consequently, the Court concluded that Article 51 of the Charter has no relevance in the case of the Wall.
Likewise, statements that give the impression that Israeli self-defense somehow precludes wrongfulness of indiscriminate and disproportionate Israeli attacks could not be accepted.
Any claims for derogation made by Israel on the basis of the necessity to safeguard an essential interest against a grave and imminent peril should be dismissed.
Ultimately - as the Court suggested in 2004, "the fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens (...)
The measures taken are bound nonetheless to remain in conformity with applicable international law."
Claiming self-defense is not a benign political statement, but has far-reaching legal consequences that may undermine IHL compliance and put civilians at aggravated risk. When Israel claims that the Law of Armed Conflict somehow does not apply in full to its actions.
Israel must abide by IHL, with no exceptions, and that the argument of self-defense is entirely irrelevant to the lawful conduct of hostilities or to the lawful administration of occupied territory, including law enforcement operations when and where it is subdued.

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More from @EpshtainItay

Apr 13
Would #Israel, claiming to offer refuge to survivors of WW II atrocities - among them my grandparents - oppose the prevention and punishment of crimes against humanity?

This is what took place at the @UN Sixth Committee (Legal) this week: Image
Delegates considered concluding a new convention on crimes against humanity, debating whether it would close gaps in the current international legal framework, based on the draft articles of the International Law Commission, and the @IntlCrimCourt Statute. #Israel pushed back. Image
Reiterating an earlier statement (2019), the #Israeli delegate insisted on the (contentious) primacy of internal jurisdiction over international justice, and on introducing stringent limitations on universal jurisdiction to prosecute the gravest international crimes. Shameful. Image
Read 6 tweets
Apr 11
This is member of #Israeli parliament Ariel Kallner (Likud). According to his web page, he "works to promote reforms in the Israeli legal system to remove barriers and regulations," setting as hit top priority "the issue of sovereignty throughout the entire Land of Israel." Image
In February, Kallner tabled a draft bill to amend the income tax ordinance to impose a tax of 65 percent on financial support from third-states and intergovernmental organizations (@EUCouncil @EU_Commission) to #Israeli and #Palestinian humanitarians and human rights defenders. Image
In March, he tabled a draft bill to amend the courts' law, so that Israeli, Palestinian, and international human rights defenders - supported by third states - could not effectively, independently, and impartially approach Israel's top court: Image
Read 4 tweets
Apr 8
"You Vote It; You Got It!" The #Smotrich -#BenGvir #Israeli government took out an ad this weekend, enumerating its accomplishments in the first 100 days. The judicial overhaul receives minor attention, while they highlight the following: Image
* Annulling the disengagement law (2005 withdrawal of settlements in the northern West Bank) and formalization of 9 settlement outposts (the most territorially disruptive and known hubs of violent extremism - IE)
* Promoting plans to formalize all (147) settlement outposts.
* Approving the construction of 10,000 settlement housing units in the Judea and Samaria (according to the #Israeli Central Bureau of Statistics, transferring circa 47,000 additional settlers to occupied #Palestinian territory - IE).
* Dramatic increase of settlements budget.
Read 7 tweets
Apr 1
#Israel's coalition government sequenced its constitutional overhaul back in December 2022, and has since followed diligently on the legislative, policy, and political measures outlined to extinguish #Palestinian self-determination. A reminder thread: Image
The preamble to the policy platform of #Israel's 37th Government reads: the Jewish people has an exclusive and irrefutable sovereign right to all of the land of Israel (historic Palestine). The government will promote and develop settlements in Judea and Samaria (West Bank). Image
1. To execute said policy, the government will promote legislative amendments, particularly to the balance between the legislator, executive, and judiciary, and the appointment of justices. The legislative overhaul will take absolute and complete precedence over all legislation.2 Image
Read 6 tweets
Feb 24
Purported annexation of occupied #Palestinian territory would was decreed yesterday by #Israel, subsuming functions of its military government into the metropolitan government and applying its internal law and institutions to occupied territory.

Following are the details: Image
Recent changes to #Israel’s Basic Law: The Government created a ministry within the Ministry of Defense responsible for the military government of occupied Palestinian territory. Handed to Religious Zionism leader, Bezalel Smotrich, it gives effect to the coalition agreement...
1. All “civilian affairs” in the West Bank will come under the authority of the Minister (Smotrich), and be delegated to the Deputy Heads of the Israeli Civil Administration (Deputy ICA), a non-uniformed political appointee of the Minister, from within his political base.
Read 13 tweets
Jan 2
#Palestinian territory, occupied or not according to #Israel? There are not one but two arguments, presented in the alternative by the Government of Israel. This is key for @CIJ_ICJ deliberations:
When the Government of #Israel comes before the Israeli High Court, it consistently argues that #Palestinian territory is under belligerent occupation, where Israeli metropolitan law does not apply, and where the Israeli Military Government is the supreme legislator and executive
That, in turn, allowed the #Israeli military commander to undertake excessive and inadmissible legislative changes and actions in disregard of #Palestinian rights and interests under int'l law #IHL - with the Court's approval - purportedly shielding it from criticism.
Read 16 tweets

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