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