Wednesday, October 27, 2010

Noura Erekat Tries Her Hand at Lawfare

Huffington Post blogger Noura Erekat is back again, this time using the tactic of lawfare to go after Israel's blockade of the Gaza Strip. Egypt, of course, is not mentioned even once in the article, but we are used to that at this point. Anyway, you can tell right from the title that she has made up her mind: "Collective Punishment or Not, Gaza Blockade Illegal" As we can tell, her misuse of the term "collective punishment" seems to indicate a less-than-perfect track record vis a vis international law. So even though I am not a law professor myself, let's go through the article and see where Ms. Erekat trips up. 


She begins with a huge and faulty assumption:
"Israel's blockade of Gaza is illegal irrespective of the manner in which it is imposed because a blockade is an act of war and an occupying power cannot declare war upon the territory it occupies."
A large portion of Ms. Erekat's argument hinges on us accepting her point of view here, so I'm going to take a minute and explain why it is wrong. First of all, the claim that Gaza is occupied by Israel is not an accepted fact by any measure. CNN has a multi-page report discussing the intricacies of it, and Elder of Ziyon explains why under the legal definitions Israel is not exercising "control" over the territory and therefore is not occupying it. Of course the anti-Zionists immediately began splitting hairs over exactly what "control" means but rather than range too far off topic I will just point out that Ms. Erekat is building an argument upon a faulty assumption that is not backed up in international law.

Secondly, she is leaving out an important part of the history of the Gaza blockade. It didn't simply show up from nowhere. As you can read about in this BBC report, the Quarter powers (which included the UN) decided to embargo Gaza after Hamas took power there in 2007, which "had a devastating impact on the Palestinian economy." So please explain this to me: If the blockade is illegal now, why wasn't it illegal in 2007? And if the United Nations can just make international law every time it makes a decision, why is the blockade again considered illegal now but not three years ago? Perhaps Ms. Erekat can explain that to me. 


Moving on, she then talks about collective punishment and how Israel is responsible for the care of the Gazans as an Occupying Power. Again, this is based on false assumptions, we have been over it a million times already. Does Ms. Erekat have anything new to say?
Okay, so skimming the article: Ms. Erekat references the opinions of groups that don't make international law but tries to pretend they do...she claims that Israel doesn't have the right to self-defense under her imaginary scenario in which Gaza is still occupied....okay, here's something. She finally points out (in the middle of her article!) under what circumstances a territory is considered occupied, even though she has been acting on that assumption so far:
"The "effective control" test does not require the military presence of the Occupier throughout the territory but rather "the extent to which the Occupying Power, through its military presence, is exerting effective control over the territory and limiting the right of self-determination of the occupied population." The controlling element is whether a belligerent has established its authority and has the ability to exercise it.""
 So Ms. Erekat is saying that even though Israeli soldiers are not in Gaza (which would fit most peoples definitions of 'occupation') they can be considered occupiers anyway, if they can "exert effective control" and limit the right of self-determination. Ms. Erekat wisely does not try and claim that Israel is limiting the right of self-determination of the Gazans; probably because she knows that that is an argument that she cannot win. So instead she goes after "effective control:"
"Since 2005, Israel has conducted several military operations in the Strip in the name of such self-defense. Consider also that Israel has maintained control of its air space, its seaports, its telecommunications network, its electromagnetic sphere, its tax revenue distribution, and its population registry. Finally, Israel has complete control of Palestinian movement as it controls its five border crossings with Gaza and therefore the ingress and egress of all its goods and people."
It all sounds very nice, but does it meet the legal definition? Let's take a look at one of Ms. Erekat's sources for the answer:
"The end of occupation rests essentially on the termination of the military control of the Occupying Power over the government affairs of the occupied population that limits the people’s right of self-determination."
Ms. Erekat might have something there with the tax revenue distribution and the population registry, but I don't think most people would disagree that Hamas is the government in Gaza for all intents and purposes. Certainly not the people of Gaza. Nor does the "military operations," the most common anti-Zionist argument, really work either. America could invade Cuba at any time. They blockaded it as well. That never made Cuba "occupied territory" by America. 

Ms. Erekat concludes her article by attacking the strawman argument of "how can Israel occupy territory and defend itself from attacks from that territory at the same time?" As I have mentioned before, her argument's whole premise is faulty, so there is no point in arguing about it. But let's conclude with one simple, declarative statement:
"Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."-United Nations Charter
 Why is it that for every nation but Israel, it is just that simple?

1 comment:

  1. Anti-Semites deny not only Jewish nationhood, they deny the corollary, which is the Jews' right to defend themselves.

    Lawfare is but a means to make sure the Jews are deprived of both.

    Noura Erekat isn't being completely honest but then again most anti-Zios aren't.

    ReplyDelete

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