Is There a Court for Gaza? A Test Bench for International Justice
“This volume asks: ‘Is There a Court for Gaza?’ The answer is a resounding yes. Indeed, there are at least two courts capable of addressing the armed conflict in Gaza that took place in December 2008 and January 2009: the International Court of Justice an
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Chantal Meloni Gianni Tognoni •
Editors
Is There a Court for Gaza? A Test Bench for International Justice
123
Chantal Meloni Criminal Law Department Cesare Beccaria Law Faculty University of Milan Via Festa del Perdono 7 20122 Milan Italy
ISBN 978-90-6704-819-4 DOI 10.1007/978-90-6704-820-0
Gianni Tognoni International Section Lelio Basso Foundation Via Della Dogana Vecchia 5 00186 Roma Italy
e-ISBN 978-90-6704-820-0
Library of Congress Control Number: 2011943565 T.M.C. ASSER
PRESS,
The Hague, The Netherlands, and the authors/editors 2012
Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
Foreword
Palestine first surfaced as a subject of international litigation in the second contentious case before the Permanent Court of International Justice. The matter concerned certain legal consequences of the British mandate and was not unrelated to London’s encouragement of the establishment of a Jewish state in Palestine, although the precise dispute is far from issues of contemporary concern.1 Indeed, for about eighty years subsequent to the Permanent Court’s decision, in 1924, the Palestine issue remained far from the docket of international courts and tribunals. Only very recently there has been any serious prospect of the Israeli occupation and its consequences being addressed through the mechanisms of international justice and international courts. To some extent this is because the institutions themselves did not previously exist or were not available. But it is also the result of an increasingly robust use of international law as a means to deal with international disputes. Some have dismissed this as ‘lawfare’. Recently, the term has been used to attack the Advisory Opinion of the International Court of Justice on the Wall and the Report of the Fact-Finding Mission presided over by Richard Goldstone. ‘Lawfare’ was apparently coined by General Charles Dunlap, an American military lawyer, in a lecture at Harvard University in November 2001. He said it was a practice whereby ‘the rule of law is … hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as well as the law itself’. Dunlap said ‘th
