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Israel claims that it is acting in self-defense in Gaza, thereby portraying itself as the victim in the present conflict. President Barack Obama and both houses of the U.S. Congress have endorsed this justification for the use of force. But is it an accurate assessment?
Gaza is not an independent state like Lebanon or Jordan. Israel accepts this but instead sees Gaza as a “hostile entity,” a concept unknown to international law and one that Israel has not sought to explain.
But the status of Gaza is clear. It is an occupied territory — part of the occupied Palestinian territory. In 2005 Israel withdrew its settlers and the Israel Defense Forces from Gaza, but it continues to retain control of it, not only through intermittent incursions into and regular shelling of the territory but also by effectively controlling the land crossings into Gaza, its airspace and territorial waters and its population registry, which determines who may leave and enter.
Effective control is the test for occupation. The International Court of Justice recently confirmed this in a dispute between the Democratic Republic of the Congo and Uganda. The physical presence of Israel in Gaza is not necessary provided it retains effective control and authority over the territory by other means. Modern technology now permits effective control from outside the occupied territory, and this is what Israel has established.
That Gaza remains occupied is accepted by the United Nations and all states except, possibly, Israel.
An illegal occupation
Military or belligerent occupation is a status recognized by international law. According to the terms of the Fourth Geneva Convention of 1949 — to which Israel is a party — a state is allowed to occupy a territory acquired in armed conflict pending a peace settlement. But the occupation must be temporary, and the occupying power is obliged to balance its security needs with the welfare of the occupied people. Collective punishment is strictly prohibited.
The occupation of Gaza is now in its 47th year, and Israel is largely responsible for the failure to reach an agreement on a peaceful settlement. Moreover, Israel is in breach of many of the humanitarian provisions contained in the Fourth Geneva Convention as a result of the siege it has imposed on Gaza since 2007. In short, Gaza is not only an occupied territory; it is also an illegally occupied territory.
The present operation in Gaza — Operation Protective Edge — must therefore not be seen as an act of self-defense by a state subjected to acts of aggression by a foreign state or nonstate actor. Instead, it should be seen as the action of an occupying power aimed at maintaining its occupation — the illegal occupation of Gaza. Israel is not the victim. It is the occupying power that is using force to maintain its illegal occupation.
The rockets fired by Palestinian factions from Gaza must be construed as acts of resistance of an occupied people and an assertion of its recognized right to self-determination.
History is replete with examples of occupying powers using force to maintain their occupations. Apartheid South Africa used force against the people of Namibia; Germany used force against the people of France and the Netherlands during World War II.
The rockets fired by Palestinian factions from Gaza must thus be construed as acts of resistance of an occupied people and an assertion of its recognized right to self-determination.
Before Israel’s physical withdrawal from Gaza in 2005, Palestinian acts of violent resistance were directed at Israeli forces within the territory.This was during the second intifada. Since then, Palestinian militants have been obliged to take their resistance to the occupation and the illegal siege of Gaza to Israel itself. The alternative is to do nothing, a course no occupied people in history has ever taken.
It is unusual for an occupied people to take its resistance outside the occupied territory. But it is also unusual for an occupying power to maintain a brutal occupation from outside the territory. When the occupying power maintains its status through military force within the occupied territory because of these acts of resistance on its own territory, as Israel has done, it acts as the enforcer of an occupation — not as a state acting in self-defense.
Lack of accountability
A state seeking to enforce its occupation, like a state acting in self-defense, must comply with international humanitarian law. This includes respect for the principle of proportionality, respect for civilians and the drawing of a distinction between military and civilian targets, and the prohibition of collective punishment. Both Israel and Palestinian militants are obliged to act within the confines of these rules.
Sadly, Israel is in violation of all three of these basic tenets. Its action is a clear collective punishment of the people of Gaza. The numbers of the dead and wounded and the property damage inflicted on them are completely disproportionate to the few civilians killed and wounded and property damaged in Israel. It is also clear from its bombing of schools, hospitals and private homes that Israel makes little, if any, attempt to distinguish between civilian and military targets.
What is to be done? The United Nations is powerless to act in the face of the U.S. veto. This places a heavy burden on the European states to use their influence to stop the bloodshed.
It is also incumbent on the International Criminal Court to act. Palestine, recognized as a state by the U.N. General Assembly in 2012, has accepted the jurisdiction of the International Criminal Court. Under pressure from the U.S. and Europe, the prosecutor of the International Criminal Court refuses to hold Israel accountable for its crimes. History will surely judge unkindly both the prosecutor and the institution that she serves if nothing is done.
John Dugard is emeritus professor of international law at the University of Leiden in the Netherlands and former U.N. special rapporteur on human rights in the occupied Palestinian territory.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy. Operation in Gaza is aimed at maintaining its illegal occupation
July 31, 2014 6:00AM ET
by John Dugard
Sunday, August 3, 2014
A new study focused on sexual violence perpetrated by the Khmer Rouge in Cambodia in the 1970s has found that women from the country’s Cham Muslim minority were intentionally targeted.
The rule of the ultra-Maoist group, which seized control in 1975 and controlled the country for four years, saw around 1.7 million people killed through execution, starvation and overwork. Under the Khmer Rouge regime, all religion - the main faith being Buddhism - was banned, and places of worship and religious documents destroyed.
There were about 200,000 Cham Muslims - originally believed to have come to Cambodia from the ancient kingdom of Champa in what is now Vietnam centuries before - when the Khmer Rouge took over. At least a third of them were killed during the regime, according to Minority Rights Group International.
There is a population of about 400,000 Cham Muslims living in Cambodia today.
A United Nations-backed war crimes court in Phnom Penh is currently trying the surviving leaders of the regime for crimes against humanity, but charges of genocide relate specifically to the minority ethnic Vietnamese and Cham Muslims—many of whom have testified as civil parties, or witnesses.
“Religion was reviled by the Khmer Rouge. Muslim communities were particularly targeted because of their different language, food customs, clothing and prayer,” the new study, produced by local legal aid group The Cambodian Defenders Project (CDP) and based on interviews with 105 survivors and witnesses, reads.
“Within this xenophobic environment, sexual violence appears to have been another method by which the Khmer Rouge persecuted minorities,” it continues.
“Respondents reported that sexual abuse and rape of Cham women were commonplace at worksites and cooperatives,” the study says, referring to the large worker co-ops established in the Khmer Rouge’s failed attempt to create an agrarian utopia.
“Further, Cham victims were silenced by their offenders with threats... or were raped before execution.”
A recent book by Cham Muslim academic Farina So titled “The Hijab of Cambodia: Memories of Cham Muslim Women After the Khmer Rouge,” also details cases of Cham women being forced to marry Khmer husbands for the purpose of breaking up the specific ethnic groups.
Interviewed for the study about forced marriage, one unnamed Muslim respondent said: "I was forced to make a commitment [to marry]... I was very small. I was just over 10 years old... How could I protest?”
Another respondent added that after marriage: ”We were spied [upon to see] if we had sexual intercourse.”
One Khmer Muslim recounted the brutal gang rape of a Cham woman, saying a Khmer Rouge cadre "wanted her when he saw that she was very beautiful. Her husband was taken to be killed. Four men had sex with her... and she was [then] taken to be killed.”
In yet another tale, a respondent detailed how some Khmer Muslim women were forced into sexual slavery, being made to provide nightly sex to groups of young militiamen.
“About ten beautiful [Khmer and Khmer Islam] women were kept for rape.... After three to seven days of rape, they were killed,” she said.
Few people who experienced sexual violence under the regime spoke of it for fear of retribution and even those who witnessed such incidents were careful to remain silent, according to the study.
“She was raped by three men... one Khmer asked if I knew the Cham woman who was killed and if that one is my relative. I said that I did not know her. During that time, if we said we know [a victim], they will kill us altogether.”
Asked by the researcher if she did in fact know the victim, the respondent answered: “Yes... she was my aunt.”
The study, which was funded in part by the German government, is focused on minority groups - the Cham, the Ethnic Vietnamese and another group known as the Khmer Krom—but it stresses that it is important to note that many other ordinary Khmer women faced the same sexual suffering at the hands of the Khmer Rouge.
However, as one Muslim respondent put it: “They hated the Khmer Muslim. They just had to rape them... They persecuted the Khmer Muslim.”
“Efforts to extinguish Cham culture and ethnicity [including though mass executions] would have created an ideal environment for sexual violence to flourish,” the study says.
Wednesday, July 30, 2014