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Continuing with Gaza, I’d invite the readers to read two posts by Dapo Akande and Marko Milanovic on the issue on EJIL Talk. Both the authors discuss the crisis from a strictly legal point of view explaining as to why it is an internationally wrongful act on the part of Israel and its claim of self- defense being unsustainable.
Both the authors identify and analyse the issue of proportionality in this context and attempt tp define the nature of the conflict in Gaza. Dapo writes;
So, to start from the beginning, the first question is what sort of armed conflict is going on in Gaza. Prior to the Israeli withdrawal from Gaza this was clearly an international armed conflict. The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza? This requires one to answer the question whether there is still an occupation in Gaza. If Israel is still the occupying power then the conflict is still international law. Comments are welcome on whether, as a legal matter, the occupation is still continuing.
On the issue of proportionality, Marko Milanovic writes,
“But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine. In other words, no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force. Article 2(4) does not apply, and consequently Article 51 and the self-defense notion of proportionality do not apply either, unless one is willing to argue that Palestine (Gaza included) already is a state in international law – a position that is in my view untenable.”
Readers may read the full article in the links provided above.
” Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the accused.”
The above is part of the judgment of the Supreme Court in SD Kohli v. State of Maharashtra. In the case two dying declarations were recorded but however, the one recorded infront of the magistrate was not produced before the Court and withheld by the prosecution. Holding that this defies the very idea of a fair trial in criminal law, the Court acquitted the accused who was sentenced to life imprisonment by the lower court.
In criminal law, the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. Along with this the Court has now stated explicitly that the prosecution must disclose all the material in its possession to the accused so as to give him a fair trial. Idon’t think that this is the first time this principle has been enunciated by the Court and surely it should have existed as a principle in criminal procedure. But at the same time, this judgment is a first in that it has granted an acquittal from a life sentence on the application of this principle.
Another principle coming out of the judgment is that if there is evidence that convicts the accused and another evidence that supports him, the one that supports him shall be taken into consideration. In this case, it was the dying declaration that was earlier not presented before the Court. Both these points are valid and emphasise on the importance of a fair trial in criminal law.
Note : Judgement dtd . 18/12/2008 . CRIMINAL APPEAL NO. 637 OF 2006 . available on Judis.