“Palestine Does not Have to Bargain to Obtain its Human Rights”

“Palestine Does not Have to Bargain to Obtain its Human Rights”

Role of Civil Society in Ensuring Adherence to International Law

The United Nations International Meeting on the Question of Palestine took place under the auspices of the Committee on the Inalienable Right of the Palestinian People (‘the committee’) at the UN Office (Palais des Nations) at Geneva on 8 and 9 March 2005. For this conference, the Committee chose the theme: Implementing the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory – The role of Governments, intergovernmental organizations and civil society.

 


Speakers from academic, political and legal practice backgrounds spoke extensively on the content and impact of the historic Advisory Opinion of the International Court of Justice, including Vaughn Lowe, Chichele Professor of International Law at Oxford University: ‘The Advisory Opinion involved legal rights and duties, not merely aspirations and interests.’ Lawyer Anis Kassim affirmed: ‘the Advisory Opinion guides us to apply law in order to provide peace’.

Both in the period leading up to the ICJ’s historic decision and in the months following, there have been numerous reports and UN resolutions emphasising how Israel’s actions continue to violate international law. The Advisory Opinion thus confirmed an existing state of affairs.(1) As with every decision it issues, the conclusions of the International Court of Justice are more than mere rhetoric. They represent the most authoritative statement of the content and applicability of international law.

Challenges for the international community

The challenges we face now, as civil society, as the United Nations or as States committed to a peaceful resolution of the conflict in Israel/Palestine, are of course very different (each fulfils a different role) but they all point in the same direction – we have a common interest that international law be respected.

Professor Dugard, Special Rapporteur of the UN Commission on Human Rights stated in his December 2004 report: ‘Israel’s defiance of international law poses a threat not only to the international legal order but to the international order itself.’ He later emphasised that ‘This is no time for appeasement on the part of the international community.’(2)

September 2004 Conference

In the previous UN Conference organised by the Committee in September 2004, a number of issues were addressed that those of us following events closely have become painfully aware of. The conference revealed a number of equally familiar, depressing paradoxes and emphasised the need for a clear strategy on how to overcome them.

For example, while the importance of international law was reaffirmed, Israel's continuing and belligerent disregard for it was also made clear. There was broad consensus for a need to end the occupation as a pre-requisite towards peace (the stated theme of the conference), yet little indication that Israel was remotely prepared to make such a consensus. Indeed, Israel’s response has been to declare the advisory opinion ‘irrelevant’.(3)

The September conference issued a strong message that a joint strategy was needed and suggested that the answers to overcoming these paradoxes lay in the Advisory Opinion.

Peace must not be at expense of human rights

It is in this context of disregard for international law that talks began to take place in early February 2005 between Sharon and Abbas. Meanwhile, the international community has largely remained silent in the face of Israel’s continued disregard for international law.

From a human rights advocacy perspective, perhaps the most significant aspect of the Advisory Opinion is that respect for human rights and humanitarian law does not depend upon a peace settlement. Indeed, the Court made it abundantly clear that a negotiated solution must be done ‘on the basis of international law’ and that these obligations bind not only Israel, but ‘all States’ to ensure respect for international law.

As such, any suggestion that a peace settlement is needed as a pre-requisite to respect for human rights is in total contradiction to international law. It is therefore essential that future peace initiatives take these factors into consideration.

Involve all parties

It is furthermore crucial that a full-fledged peace process involve all parties to the conflict. The Israeli leadership would be well-advised to take advice from former South African president De Klerk, who famously declared that: ‘it is not possible to choose one’s adversaries’.

As another speaker at the conference suggested, we should be careful not to allow the Wall to destroy the peace process, but ensure that the peace process destroys the Wall. Human rights advocates should not abandon international law even if Israel has. Just as in the case of South Africa, the Advisory Opinion has the capacity to give new, authoritative meaning to human rights advocacy.

Civil society organizations should use every opportunity to raise the Advisory Opinion in articulating political positions to their own national governments, raising awareness amongst the public or in supporting the position of the United Nations to carry out the work for which it was intended and to urge the UN to take concrete action.

How can civil society bring about change?

Bringing about change in a country that persistently refuses to abide by international law (such as South Africa during apartheid) is not an easy task, but it is by no means insurmountable. As veteran Dutch human rights advocate Adri Nieuwhof has noted, bringing about this change rests on four fundamental factors:

1. A situation of deep crisis
2. Diplomatic pressure
3. Economic pressure
4. Well organized civic structures

These factors present a framework for future action on the part of civil society, and are worth examining more closely.

Firstly – Interpreting the Crisis

While it can easily be argued that a situation of deep crisis exists, misinformation abounds in interpreting the crisis. The media obviously plays a central role in this. Both TV and print media have been prone to bias and misreporting. Examples of this are legion, covering everything from a failure to use the word ‘occupation’ (in describing the presence of Israel’s military in Palestine) to a gross misuse of the word ‘response/retaliation’ (in explaining Israel’s military aggression).

The challenge to civil society in interpreting this crisis is to reflect the ‘Facts on the Ground’, which some organisations, including Christian Aid(4) have mostly managed to do successfully, but there is much more work to do.

Secondly – Increasing diplomatic pressure

While some diplomatic pressure has been exercised by individual states and parties to the ‘quartet’, there has not been nearly enough. In particular, the Security Council’s permanent members, and particularly the USA, have consistently obstructed efforts to take concrete steps against Israel.

Here there is little that civil society can concretely do. However, supported by the language of the Advisory Opinion, civil society organisations can continually lobby their governments to take an uncompromising stance, insisting that the terms of the ICJ Advisory Opinion be respected and implemented and warning that a failure to do so may well mean further diplomatic and possibly economic isolation. Civil society must also insist that its government’s commitment to respect for human rights be backed up by concrete actions. When things look bleak, it is important to remember that a strategic campaign can have long-term, cumulative consequences.

Thirdly – Stepping up economic pressure

Beyond modest efforts exercised by the European Union, there has been little in the way of economic pressure by states or official bodies against Israel. The USA continues to subsidize the Israeli economy with several billion dollars per year. The EU, meanwhile, maintains generous trade relations with Israel, amounting to several hundred million dollars per year. The EU is Israel’s most significant trading partner.

Efforts by civil society organizations to insist that the European Union correctly apply the Association Agreement have largely proved fruitless. Indeed, there is now even talk of the EU including Israel as part of its ‘European Neighbourhood Policy’. With a considerable amount of trade at stake, it is possible that organizations have seriously underestimated this factor. However, at the UN Conference in September 2004, some activists urged a clearer message be articulated, abandoning the ‘proper implementation’ argument and calling for Israel's suspension from the agreement. This stance was later echoed at a conference in London in December 2004.

In short, there is a growing view amongst civil society organizations that the only realistic way to address Israel’s impunity and to stimulate a tougher line on the part of the international community is through citizen actions: divestment and consumer boycotts. Initiatives have been undertaken in Netherlands, Denmark and elsewhere. The Presbyterian Church of the USA has gone a step further and voted to divest themselves of any economic association with Israel. Others will soon follow.

Finally – Supporting and activating civic structures

The final factor outlined by Nieuwhof is a complex one in the context of Palestine. During the first intifada, civic structures were effective in a range of mobilizing efforts, from boycotting Israeli products (for example by growing their own vegetables) to staging well-organized and prolonged peaceful protests, which brought considerable international attention to the plight of Palestinians.

Following the Oslo Accords, the Palestinian Authority was established, replacing many of the pre-existing civic structures with local government structures. Added to this, Israel's increasing stranglehold over the occupied territories has stifled what little existed of these civic structures. Abroad, Palestinians have faced numerous obstacles in finding safe refuge and the community remains deeply fragmented.

One positive initiative funded by the European Union is designed to engage Palestine civic structures, both in refugee camps and in other exiled communities. Known as Civitas, the project is consulting with Palestinians all over the world.

Drawing inspiration from other solidarity movements(5)

Omar Barghouti has argued that, while ‘not identical…a sufficient family resemblance between Israel and South Africa exists to grant advocating South Africa style remedies’.(6) Barghouti has reflected on the ‘insurmountable hurdles’ that South Africans faced throughout the anti-apartheid struggle and argued that the ‘militaristic establishment’ of Israel would eventually weaken, if it were systematically challenged, just as it was in South Africa.

Archbishop Desmond Tutu said in 1989, while the apartheid regime was still choking the South African people, ‘I am a black South African, and if I were to change the names, a description of what is happening in the Gaza Strip and the West Bank could describe events in South Africa.’

Years later South Africans that were involved in the anti-apartheid struggle paid visits to the occupied Palestinian territories. They remarked that the situation in Palestine was in many respects far worse than what they faced during apartheid.

Those who have experienced oppression make the most relevant comparisons between South Africa and Palestine/Israel. Many of these issues were heard about at the conference: the denial of basic human rights, forceful territorial occupation, systematic socio-economic marginalisation, planned assassinations, disregard for the rule of law and confrontation with an overwhelming police and military force.

The importance of perspective

Of course, this is not to say that there are not significant distinctions to be made. The key to drawing relevantly on the experiences of previous liberation movements is choosing the proper perspective. The perspective of most Israelis is fundamentally different from that of most Palestinians, as the perspective of most white South Africans was fundamentally different from that of black South Africans under apartheid. The key to finding a successful political settlement may involve understanding the true nature of the divide and to use understanding that find bases for compromise on both sides.

As Dennis Brutus, former anti-apartheid campaigner and now professor in the USA, declared at the European Social Forum in London in 2004:

“Various campaigns against the apartheid regime had contributed to creating a climate of international awareness of the nature of the racist and oppressive system of apartheid and had led to general outrage and a demand for its international isolation. Something similar should happen in the case of the Palestinian struggle.”

Conclusion: More is needed

The authoritative views of the International Court of Justice reinforce what Palestinians have long been advocating – respect for human rights and in particular recognition of their right to self-determination.

NGOs, social movements and other civic structures have a golden opportunity to build on what is arguably the single most important legal development in the history of the conflict.

As Professor Lowe rightly stated at the conference, ‘Palestine does not have to “bargain” in order to obtain its human rights’.

Jeff Handmaker is a Lawyer and Independent Consultant (Rea Hamba Advice, The Hague) and PhD Researcher, Netherlands Institute of Human Rights, Utrecht University, The Netherlands and member of Badil’s Legal Support Network. This article is an edited version of a presentation to the UN Meeting on the Question of Palestine, 8-9 March 2005, Geneva. Parts of this article originally appeared in The Electronic Intifada, including ‘Beyond the Advisory Opinion: Possible Future Strategies’, Jeff Handmaker, The Electronic Intifada, 20 Sept 2004, http://electronicintifada.net/v2/article3105.shtml

Notes

(1) See Akram and Quigley, A Reading of the International Court of Justice Advisory Opinion on the Legality of Israel’s Wall in the Occupied Palestinian Territories, July 2004. Available at: http://www.palestinecenter.org/cpap/pubs/update_on_wall_072004.pdf
(2) United Nations, Economic and Social Council, “Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine, Report of the Special Rapporteur of the commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967”, 7 December 2004, E/CN.4/2005/29.
(3) In addition, Israel even ignored its own High Court’s order that certain sections of the Wall be re-rerouted and dismantled and continued the Wall’s construction regardless. Reflecting on this, Dugard (Ibid) expressed hope that more respect would be taken towards the Supreme Court decision.
(4) Christian Aid, ‘Facts on the Ground: End of the two-state solution?’, October 2004.
(5) Drawn from: “Amandla Ngawethu! South Africa and Palestine compared”, Jeff Handmaker, Bangani Ngeleza and Adri Nieuwhof, The Electronic Intifada, 8 February 2005, http://electronicintifada.net/v2/article3604.shtml
(6) “Boycott as Resistance: The Moral Dimension”, Omar Barghouti, The Electronic Intifada, 28 December 2004.


New Issue of BADIL's Arabic Magazine! Haq al-Awda, Issue No. 9 (February 2005)

UNRWA: Challenges and Fate
Includes: interview with Mr. Peter Hansen, UNRWA Commissioner-General
Related articles, reports, documents

World Social Forum, Brazil, January 2005
Interview with the Palestinian ambassador in Brazil, Mr. Musa Omar Udah
World Social Forum: When the Nations Meet, by Nihad Boqai'
Statements from the World Social Forum

Field Reports
Khan Younis refugee camp (Gaza) and Shatila refugee camp (Lebanon)

Additional Articles
Between the Place and its Settlement, by Nabih Bashir
The Naqab: Fight Against the Land and People, by Raja Za'atri
A Letter by a Palestinian Refugee to His Brother Abu Mazen, by Dr. Abdallah al-Hourani