August 10, 2009 Lorent D Espinoza Prof. Cecilia D. Selbrede, J.D.
International Law 306
Traditional International Law focuses on the behavior of legal recognized states before the International Community. Its provide those with rights but also obligations. Although states are the main actors in the international system, there are other entities known as non-state players that also take part as actors the system. These non-state actors had within the years gained rights and recognition within the statutes of International Law. However, of the three kind of armed non-states actors that pose a threat to established governments, only two of them are recognized by the law. They are insurgency and belligerency. Within the framework of customary International Law, Justice Joseph Story formulated the basic policy on the recognition of belligerency in 1818.1 To qualify for the status of belligerency, three criteria must be met: rebellion must be organized around a government, the revolt must extend a local uprising, and a substantial area must be under the de facto control of antigovernment forces.2
Hezbollah, the Lebanese Shiite Muslim group, which emerged in the 1980s as an Islamic resistance group determined to remove the Israelis, who has occupied the South of Lebanon since 1978, by force;3 and the radical Palestinian organization Hamas, founded in 1988. Which under their covenant pursue a very clear objective, to drive off Israel out of Palestinian territory;
James H. Wolfe, International Law pp.58 (2002) Gerhard Von Glahn, Law among Nations pp. 72-73 (1996) Deen Shariff Sharp, Lebanon’s Main Political Groups, pp. 11 (2009)
this objective is stated in Hamas’ Covenant Article 9.4 Both armed non-state actors (ANSAs) have been classified as Foreign Terrorist Organizations (FTOs) in a list released by The Offices of the Coordinator for Counterterrorism in April 30, 2007. Although both organizations are documented as Terrorist by the U.S. Government, The European Nations, and Israel; the curious case is that they also met International Law criteria to be qualified as belligerent groups.
As stated before by Wolfe, In order for an organization to gain the belligerent status, they must meet the three criteria’s. First, there must be the existence of an armed conflict. In fact, there is an armed conflict that has been going on for more than fifty years between Lebanon, Palestine, and Israel. Second, insurgents must occupy a substantial part of a state territory. Effectively, Hezbollah has control of Lebanon territory not only as a militia but also by popular vote; they are legally recognized as members of one of the main political allegiance in Lebanon, they run 14 seats in the Lebanese parliament and another 34 on manor bloc. They have a dominant geographical control in areas such as South Beirut, Northern Beqaa, Jbeil, and Southern Lebanon.5 Regarding the control of Hamas, On January 25th 2006, candidates of the Change and Reform, a party associated with Hamas won a majority in the Palestinian Legislative Council (PA) election, defeating Fatah. Consequently, Hamas have legislative control over the territory in dispute.
The implications of legal standing for these terrorists’ organizations are based on International Law, to be specific under the United Nations Security Council resolution 242 adopted on November 22, 19676. This resolution call for Israel withdraws from the occupied territories
Hamas, The Covenant of the Islamic Resistance Movement, pp. 5 (1988) Sharp, pp. 11 (2009) U.N security Council Resolution, 442 (1967)
during the June 1967 war. This includes the Palestinian territories of the West Bank, The Gaza Strip, and East Jerusalem.7 On May 2000, after 18 years of Israeli occupation in South Lebanon, Israel completely withdraws from the Lebanese territory. The U.N. Security Council certified Israel’s withdrawal on June 2000, in accordance with U.N. Resolution 425 of 1978. Lebanon and Syria government maintain that the process is not complete since it does not include the still disputed Shib’a Farms territory.8 Israel argues that Shib’a Farm where part of the territory acquired from Syria, the Golan Heights. Although the method that Hezbollah practices terrorizing and killing Israeli’s population, the dispute will continue until a resolution and the enforcement of the same one takes place under International Law. Hezbollah has no legal standing at the present time. The attack perpetrated to Israel on 2006, is a violation of the territorial integrity of a country and is a serious infringement of the International Law; ironically Israel does the same on Palestinian territory.
Hamas is a totally different case; Israel has occupied Palestinian territory since 1967. The U.N. and The International Court of Justice have adopted many resolutions and judicial reviews in this regard. Israel as state that has obligations under International Law as well as rights, but it seems that Israel violates International Law in a daily basis. Over the years the list of its violations is extending, It infringe the preamble of the United Nations Charter, 39 Security Council Resolutions on Israel; International legislation resulting from the Peace Conference of Hague in 1899 and 1907, Human Rights as set out in the Geneva Convention, especially the fourth; the many treaties and declarations concerning Universal Human Rights, the treaties against torture, the treaties on the right of the child; and the advisory opinion on existing international law of the International court of Justice, July 9, 2004 regarding the wall.9 This only
Wijemberg, pp. 22 (2008) Jeremy M. Sharp, Lebanon: The Israel- Hezbollah-Hamas Conflict, pp. 39 (2006) Jan Wijemberg, Key to Peace in the Middle East, pp. 6 (2008)
shows that Israel has a great disdain for the International Law, and provides also Hamas with the argument to stand legally against Israel, supported by the tenets of the Law of War. Hamas as combatant under the Law of Belligerent has the right to participate directly in hostilities, according to AP1, Art. 43.2.10 Since Israel has kept its occupation over the Palestinian territories on dispute against the ruling of The U.N. Security Council of 1967, Hamas is also entitled to fight against that occupation under Art. 2. Para. 2. of the Geneva Convention.
In conclusion, It can be stated that International Law not only focuses on the rights and obligations of States; the implication goes beyond States, at the same time it is complicated to understand how the law side sometimes with organizations that posses a potential threat to global security. From this observation it can be concluded also the existence of one undeniable fact, “When a state fails to fulfill its obligations according International Law, that State is the only responsible on creating opportunities for such organizations to rise and gain status of protection under International Law statutes”. At the same time this statement do not justify the terrorist acts committed by Hezbollah and Hamas; but it will be helpful to understand this conflict more in dept if some attention is pay to the external factors playing a part in the dispute. Syria and specially the Iranian ambition of becoming the major influence to exercise geographical control on Middle East, and also the position of the United States toward the only ally in the zone, Israel. Finally, this case proves what Wolfe has stated, International Law is not a true law. Observance of the law is voluntary, for no superior political authority exists to compel obedience.11
The Law of Armed Conflicts Wolfe, pp. 1 (2002)
Sharp, Deen H.: The Lebanon’s Main Political Groups (2009) <http://www.scribd.com/doc/13460784/the-main-lebanese-politicalparties> 10 august, 2009 Sharp, Jeremy M.: Lebanon: The Israel-Hezbollah-Hamas Conflict. C.R.S. Report for Congress, The Library of Congress (2006) <http://www.scribd-theisraelhamashezbollahconlfict/doc/633143> 11 August, 2009 “The Covenant of the Islamic Resistance Movement.” The Avalon Project. 18 August 1988. Hamas. < http://avalon.law.yale.edu/20th_century/hamas.asp>10 August 11, 2009. “The Four Geneva Convention” U.N.T.S. No. 973, Vol. 75, P. 278, 12 August, 1949 http://www.jewishvirtuallibrary.org/jsource/History/Human_rights/geneval.html “The U.N. Security Council Resolution 242” (1967) <http://daccessdds.un.org/doc/Resolution/Gen/NRD/240/94/IMG/NRO24094.pdf?OpenE lement> Von Glahn, Gerhard: Law among Nations: An Introduction to Public international Law, 7th Ed. (1996) Wijemberg, Jan: Key to Peace in the Middle East, Civis Mundi: Journal for Political Philosophy and culture, Vol. 47, issue 4 (2008) Wolfe, James H.: Modern International Law, (2002)