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U.S. and international law

Violation of law.

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Violations of U.S. laws

The following selections summarize pertinent areas of U.S. laws that govern the sale and proper uses for U.S. military aid. Each summary also cites objections to Israel’s violations of these laws by prominent individuals and human rights organizations.

Arms Export Control Act, Section 2754 - Purposes for which military sales by the United States are authorized [1]

“Defense articles and defense services shall be sold or leased by the United States Government under this chapter to friendly countries solely for

  • internal security
  • legitimate self-defense
  • preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons
  • to permit the recipient country to participate in regional or collective arrangements or measures consistent with the Charter of the United Nations
  • to permit the recipient country to participate in collective measures requested by the United Nations for the purpose of maintaining or restoring international peace and security
  • for the purpose of enabling foreign military forces in less developed friendly countries to construct public works and to engage in other activities helpful to the economic and social development of such friendly countries”

Examples:

[N]o nation is immune from the legal conditions placed on the receipt of U.S. military assistance. I believe that with the current escalation of violence in Gaza, a legal threshold has been reached, warranting a Presidential examination and report to Congress… While neither the AECA nor the Foreign Assistance Act of 1961 (FAA) define “internal security” and “legitimate self-defense,” I believe that Israel’s most recent attacks neither further internal security nor do they constitute “legitimate” acts of self-defense. They do, however, “increase the possibility of an outbreak or escalation of conflict,” because they are a vastly disproportionate response to the provocation, and because the Palestinian population is suffering from those military attacks in numbers far exceeding Israeli losses in life and property. [2]

—Dennis J. Kucinich, Member of Congress

The National Lawyers Guild Emergency Delegation to Gaza, February, 2009, found evidence that Israel violated the AECA during Operation Cast Lead…

Israel’s attack-in international waters-on the Gaza Freedom Flotilla [May 31, 2010], which was composed of six ships attempting to deliver 10,000 tons of humanitarian aid to the blockaded Palestinian Gaza Strip, resulted in the deaths of at least nine humanitarian activists, with dozens more injured. More than 600 activists were taken against their will to Israel for detention and/or deportation. We are particularly concerned about reports that in the course of its attack on the flotilla, Israel may have beaten two U.S. citizens: Huwaida Arraf, Esquire, of Washington, D.C., and Dr. Paul Larudee, of El Cerrito, California.

Given these circumstances, we [National Lawyers Guild International Committee] are asking the State Department to determine whether Israel’s act of aggression on the high seas against the Gaza Freedom Flotilla constituted “internal security” or “legitimate self-defense” according to the terms of usage for U.S. weapons as defined in the Arms Export Control Act…

The United States has provided the Israeli navy and air force with weapons through Foreign Military Financing (FMF) budget allocations that were, or may have been used, in this attack on the Gaza Freedom Flotilla. According to the Jerusalem Post, the Israel Air Force used three Sikorsky UH-60 Black Hawk helicopters to transport its commandos to the ships. The Israel Air Force is reported to have 49 of these combat helicopters.

In addition, the United States has transferred additional weapons to the Israeli Navy that may have been used in violation of the Arms Export Control Act during its attack on the Gaza Freedom Flotilla. In July 2008, the Defense Security Cooperation Agency (DCSA) notified Congress of a possible Foreign Military Sale (FMS) to Israel of four littoral combat ships (LCS-I variant), associated equipment, and services valued at up to $1.9 billion. The Israeli Navy is also reported to have three Sa’ar 5-class corvettes built in the United States.

In addition, press reports indicate that Israel may have used U.S. guns, ammunition, night vision goggles, and crowd dispersal weapons in its attack on the Gaza Freedom Flotilla.

Once again, we [National Lawyers Guild International Committee] request the State Department to investigate whether Israel’s attack upon the Gaza Freedom Flotilla violated the Arms Export Control Act, and which U.S. weapons Israel may have been misused in this attack.

As a country that values the rule of law, we have an obligation to ensure that the United States applies and enforces its laws on an equal basis. This holds true even more so in the case of our friends who purport to share common values of democracy and human rights with the United States. In this regard, Israel’s actions must conform to the same standards that we expect from any other country receiving U.S. weapons under the terms of the Arms Export Control Act. To exempt Israel’s actions from this investigatory process required by the law would be to hold our ally Israel to an unfair standard and single it out for special treatment.

This request for a Department of State investigation into Israel’s possible violation of the Arms Export Control Act during its attack upon the Gaza Freedom Flotilla should take place in conjunction with, and not serve as a replacement for, the Obama Administration’s support within the UN Security Council for a “prompt, impartial, credible and transparent investigation conforming to international standards” of Israel’s attack on the Gaza Freedom Flotilla. [3]

—Peter G. Bourne, M.D., Former UN Assistant Secretary General, on the attack on the Gaza Freedom Flotilla in 2010

Foreign Operations Appropriations Bill for Fiscal Year 1998 – Section 563 (“Leahy Amendment”)

“None of the funds made available by this Act may be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights, unless the Secretary determines and reports to the Committees on Appropriations that the government of such country is taking effective measures to bring the responsible members of the security forces unit to justice.”

Examples:

[T]he barrier’s path and operating arrangements violate the freedom of movement of Palestinians, endangering their access to food, water, education, and medical services. With every mile the barrier cuts into the West Bank, towns, villages, and residents become separated from their lands, crops, services, water, and jobs. According to the World Bank, some 150,000 Palestinians will be harmed by the first phase of the barrier, which has already been completed. Other phases were likely to affect at least 150,000 more. . . . Human Rights Watch recognizes that the Israeli government has a duty to protect its civilians, but notes that Israel is obliged to make sure that its security measures do not violate international human rights and humanitarian law. [4]

—Human Rights Watch, September 2003

The fact that the Separation Barrier cuts into the West Bank was and remains the main cause of human rights violations of Palestinians living near the Barrier. Israel contends that the Barrier’s route is based solely on security considerations. This report disputes that contention and proves that one of the primary reasons for choosing the route of many sections of the Barrier was to place certain areas intended for settlement expansion on the “Israeli” side of the Barrier. In some of the cases, for all intents and purposes the expansion constituted the establishment of a new settlement. [5]

—B’Tselem [The Israeli Information Center for Human Rights in the Occupied Territories] and Bimkom [Planners for Planning Rights], December 2005

U.S. Foreign Assistance Act of 1961, Sec. 502B

“No assistance may be provided under this part to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or de-grading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.”

Examples:

Since the beginning of the al-Aqsa intifada, Israel has employed a policy of house demolition, uprooting of orchards, and destruction of farmland in the Gaza Strip. . . . . The destruction of many hundreds of acres of agricultural land based on the claim that Palestinians fired from these lands, and the demolition of entire residential neighborhoods on the charge that some of them contained tunnels, constitute excessive injury to the civilian population. This action is illegal. Israel’s policy, which is carried out against people whom Israel does not contend were involved in attacks on Israeli civilians or security forces, constitutes collective punishment. Despite these violations of international humanitarian law, Israel refuses to compensate Palestinians whose property was damaged in these actions. [6]

—B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, September 2010

“From 1967 the Israeli security services have routinely tortured Palestinian political suspects in the Occupied Territories – and from 1987 the use of torture was effectively legal. [7]

—Amnesty International

[U]unjustified killings by undercover units are not aberrations; rather they constitute a pattern that could only continue with the complicity of the Israeli government. . . . Israeli soldiers who participate in the search for “wanted” and masked activists routinely violate both international norms governing the use of lethal force as well as the rules of engagement that the Israeli army professes to apply in the occupied territories. In fact, a parallel, officially denied set of open-fire regulations seems to have come into being that gives these soldiers permission to kill with virtual impunity. [8]

—Human Rights Watch, August 1993

[A]dministrative detention has been used often in the OT [Occupied Territories] not to counter terrorist attacks, but rather as a means of political control. The human rights organization B’Tselem has several reports on the way it was used to round up political activists during the first intifada and to imprison people who incited against the peace process during the Oslo years. More recently, there have been cases where administrative detention was used to imprison organizers of protests against the Separation Barrier. [9]

—Association for Civil Rights in Israel, April 2008

From the beginning of the intifada on 29 September 2000, until 31 December 2007, 4,332 Palestinians were killed in the Occupied Territories. Among them were 865 minors (under the age of 18). At least 2,050 of those killed were not participating in the fighting at the time of death, and 225 were objects of targeted killing. Thousands more were wounded. [10]

—B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, September 2010

Violations of international laws.

The following selections summarize pertinent areas of international law relating to the responsibility of an occupying power. Each summary also cites objections to Israel’s violations of these laws by prominent international organizations.

Fourth Geneva Convention: Article 49. “The Occupying Power shall not transfer parts of its own civilian population into territories it occupies.” [11]

Example:

The building of Israeli settlements in the Occupied Territories began shortly after the 1967 War.  Since the beginning of the Oslo Peace process in 1993 the number of settlers has nearly doubled. B’Tselem’s report released on July 6, 2010, “By Hook and by Crook : Israel’s Settlement Policy in the West Bank,” says “Some half a million Israelis are now living over the Green Line: more than 300,000 in 121 settlements and about one hundred outposts, which control 42 percent of the land area of the West Bank, and the rest in twelve neighborhoods that Israel established on land it annexed to the Jerusalem Municipality…”  This report then notes “the following examples of how this settlement enterprise has caused continuing, cumulative infringement of the Palestinian human rights:

—the right of property, by seizing control of extensive stretches of West Bank land in favor of the settlements;

—the right to equality and due process, by establishing separate legal systems, in which the person’s rights are based on his national origin, the settlers being subject to Israel’s legal system, which is based on human rights and democratic values, while the Palestinians are subject to the military legal system, which systematically deprives them of their rights;

—the right to an adequate standard of living, since the settlements were intentionally established in a way that prevents urban development of Palestinian communities, and Israel’s control of the water sources prevents the development of Palestinian agriculture;

—the right to freedom of movement, by means of the checkpoints and other obstructions on Palestinian movement in the West Bank, which are intended to protect the settlements and the settler’s traffic arteries;

—the right to self-determination, by severing Palestinian territorial contiguity and creating dozens of enclaves that prevent the establishment of an independent and viable Palestinian state. [12]

—B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, September 2010

International Court of Justice ruling on the Separation Wall

In its July 9, 2004 opinion the International Court of Justice ruled that “Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective all legislative and regulatory acts relating thereto.” [13]

Example:

One of the many consequences of the Wall has been restricted access to health care for Palestinians: the six hospitals in East Jerusalem are the main providers of specialized care to the population of the Occupied Territories.  The United Nations Office for the Coordination of Humanitarian Affairs occupied Palestinian territory said in its special focus study, The Impact of the Barrier on Health: “Since 2007, with the completion of much of the Barrier in the Jerusalem area, the possibilities for those without permits to access the city for medical care are significantly reduced; for those with permits, access is channeled through designated Barrier checkpoints only … The checking procedures are arduous and queues can be long … (p. 10)  Because of the Security Barrier, here is also restricted access to these hospitals for medical staff and students. [14]

—Source: UN World Health Organization, July 2010

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[1] U.S. Department of State. Directorate of Defense Trade Controls. Accessed on September 16, 2010

[2] Kucinich, Dennis. Israel May Be in Violation of Arms Export Control Act. Huffington Post, January 6, 2009.  Accessed on September 14, 2010

[3] Bourne, Peter. Did Israel Violate Arms Export Control Act? National Lawyers Guild International Committee. Accessed on September 14, 2010.

[4] Human Rights Watch. Israel: West Bank Barrier Endangers Basic Rights: U.S. Should Deduct Costs from Loan Guarantees, HRW Press Release, September 30, 2003. Accessed on September 17, 2010.

[5] B’Tselem [The Israeli Information Center for Human Rights in the Occupied Territories] and Bimkom [Planners for Planning Rights], Under the Guise of Security: Routing the Separation Barrier to Enable the Expansion of Israeli Settlements in the West Bank, B’Tselem and Bimkom Position Paper, December 2005. Accessed on September 17, 2010

[6] B’Tselem [The Israeli Information Center for Human Rights in the Occupied Territories], Demolition for Alleged Military Purposes. As accessed on September 17, 2010

[7] Amnesty International. “Combating Torture: A Manual for Action,” Section 2.2, AI Report, June 25, 2003.  Accessed on September 17 

[8] Human Rights Watch. A License to Kill: Israeli Operations Against ‘Wanted’ and Masked Palestinians, HRW Publications, August, 1993.  Accessed on September 17, 2010 

[9] Association for Civil Rights in Israel [ACRI].Administrative Detention in Israel and the Occupied Territories,” ACRI Position Paper [lecture presented at Yale Law School], April 2008. Accessed on September 17, 2010

[10] B’Tselem [The Israeli Information Center for Human Rights in the Occupied Territories], Use of Firearms – Data Summary. As accessed on September 17, 2010

[11] International Committee of the Red Cross. Website. International Humanitarian Law: Treaties and Documents. Accessed on September 16, 2010

[12] Hareuveni, Eyal. By Hook and by Crook: Israeli Settlement Policy in the West Bank. B’Tselem [The Israeli Information Center for Human Rights in the Occupied Territories] and Bimkom [Planners for Planning Rights], July 2010. Accessed on September 16, 2010

[13] International Court of Justice. Accessed on September 16, 2010

[14] UN World Health Organization, The Impact of the Barrier on Health: Special Focus. July 2010. Accessed on September 16 at