Bereft of any comprehensive analysis and subject to little if any sustained debate, the tangential location of the prohibition of propaganda for war in the discourse of international law has resulted in a situation where state conduct in this area too often appears to be acting in a legal vacuum. In proposing a more robust role for international law in responding to what is a matter of widespread public concern, the book analyses the context in which international law first came to be concerned with propaganda for war in the years following the First World War. With the establishment of the United Nations and the corresponding development of international human rights law, the issue of the prohibition of propaganda for war in both human rights law and international criminal law became a highly significant, yet frequently divisive matter during the Cold War.

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The Human Sciences Research Council of South Africa commissioned this study to test the hypothesis posed by Professor John Dugard in the report he presented to the UN Human Rights Council in January 2007, in his capacity as UN Special Rapporteur on the human rights situation in the Palestinian territories occupied by Israel (namely, the West Bank, including East Jerusalem, and Gaza). Professor Dugard posed the question: ‘Israel is clearly in military occupation of the OPT. At the same time, elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the Occupying Power and third States?’ In order to consider these consequences, this study set out to examine legally the premises of Professor Dugard’s question: is Israel the occupant of the OPT, and, if so, do elements of its occupation of these territories amount to colonialism or apartheid?

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Having reference to the emergence of a ‘lawfare’ narrative in response to Palestinian engagement with the international legal framework over the past decade, this paper considers how and why international law has shifted from being a site of resistance to the occupation of Palestinian territory, to an actual site of conflict between Israel and Palestine. In particular it will focus upon the threat posed to the fundamental principles of international humanitarian law by Israeli efforts to adapt the application and interpretation of the fundamental principles of distinction and proportionality.

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This essay seeks to reflect on the sudden emergence in the international law discourse of a sustained debate on the question of statehood since, after all, the question of Palestinian statehood has been an issue of concern even before 1947. Since the beginning of the second intifada in 2000, the emphasis in legal analysis of the conflict has moved from one primarily focused on individual violations of international human rights and humanitarian law to consideration of broader questions of public international law. This paper aims to reflect, generally, on this development, by touching upon why a legal analysis fitted into a framework largely restricted to human rights and humanitarian law in the Palestinian territory occupied since 1967, is being expanded temporally and normatively to engage with the overarching politico-legal questions around statehood, colonialism, and self-determination that have for the most part remained in the background of legal analysis since Palestine’s first encounters with the international legal framework under the aegis of the League of Nations. 

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Bearing in mind that the treatment of propaganda by international criminal tribunals has to date been patchy and often convoluted, even if propaganda has been a consistent presence in the jurisprudence, the aim of this essay is to reflect upon some of the key methods and means by which the ICTY has addressed propaganda in its jurisprudence.

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A striking feature of the Summary of Submissions published by the Office of the Prosecutor of the International Criminal Court in May 2010 is the dichotomy of approaches taken by the various authors. Four of the eight papers apply a rigid and strict interpretation of the 1933 Montevideo Convention to conclude that Palestine is not a state and therefore the declaration must be rejected. The remaining papers conclude that the declaration can and should be accepted as valid by the Prosecutor. To these authors the Montevideo Convention is of limited, if any, significance, with the emphasis placed instead on the Palestinian right to self-determination and their sole sovereignty over the occupied Palestinian territory, as well as widespread implicit and explicit recognition of Palestine either as a state, or as an international legal personality that in relevant ways is the equivalent of a state. The crucial element to this approach is that the question for the Prosecutor and for the Court is not one of determining whether Palestine is a state per se and for every purpose, but rather to determine whether in light of the Rome Statute, Palestine as an entity with the capacity to enter into relations with states and international organizations, and with jurisdiction over the crimes set forth in the Rome Statute, has the capacity to validly transfer that jurisdiction to the Court.

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