The Roundtable then reviewed the legal status of Palestinian prisoners and detainees in international law as well as the measures to improve their situation. The possible applicability of the prisoner of war status to future Palestinian prisoners was discussed including the conditions to be recognized “combatant” as set forth in the Third Geneva Convention. The conditions were described as offering limited opportunities taking into account the Palestinian context. It was also noted that the recognition of the “combatant” status would mean that Palestinian prisoners could be held in detention until “the end of hostilities” without trial, raising the question of the definition of the cessation of hostilities.
The question of the prosecution of hundred thousands of civilians before Israeli military courts was also addressed. The authority of such courts in the Occupied Palestinian Territory was questioned in light of the Fourth Geneva Convention, presented as inapplicable to protracted situations of occupation. The main shortcomings of these courts included their lack of independence and impartiality, as well as their incapacity of providing a due process. It was claimed that such courts were of political nature, as they were, structurally, prevented from providing a fair trial, in contradiction to the Fourth Geneva Convention and in violation of Common Article 3.
It was said that United Nations procedures and mechanisms should bear a clear focus on international humanitarian law regarding the rights of Palestinian detainees and the duties of the occupying Power. The submission of human rights reports to the General Assembly and Human Rights Council constituted an important and authoritative body of source. Furthermore, it was noted that General Assembly and Human Rights Council resolutions were key instruments to reflect the high consensus of the United Nations on human rights issues in the Occupied Palestinian Territory. Human rights treaty bodies, special procedures as well as universal periodic reviews by Member States at the Human Rights Council also played an important role to expose Israel’s violations and make recommendations.
Palestinian experts recalled recent comments made by Special Rapporteurs on the situation of human rights in the Palestinian territories occupied since 1967 concerning the legality of prolonged occupation. The latter was directly connected to the Palestinian prisoners’ issues and therefore should nurture national strategies and support the efforts of the Ministry of Prisoners Affairs to internationalize the problem. They called for more accountability with regard to Israeli military courts, suggesting that the State of Palestine should ratify the Rome Statute, set up a Special Court to address older crimes, and apply the principle of universal jurisdiction.
Further discussing the Palestinian prisoners’ issue, several participants insisted on the fact that the diptych “end the occupation/self-determination” was the cornerstone of the problem. They also called for an advisory opinion of the International Court of Justice though some experts expressed that such approach was cumbersome. They also questioned the relevance as well as the political advantage of submitting a question whose answer could be too obvious from a legal perspective.
The Roundtable also reviewed the available legal mechanisms aimed at ensuring compliance with international law and addressed Third Party responsibility. After examining the conditions governing the beginning of an occupation and the extent of the occupant’s authority over an occupied territory, it was highlighted that The Hague and Geneva Conventions envisaged that an occupation would only be of short duration. The concept of “prolonged occupation” was absent from governing international instruments.
Therefore, to maintain the unity of international law, it was noted that international humanitarian law was not precluding the application of human rights law in time of armed conflict. The International Court of Justice provided limited guidance on this relationship but it corroborated the idea that a State, when acting beyond its jurisdiction, should apply human rights standards. In addition, the recent accession of the State of Palestine to the Fourth Geneva Convention put an end to Israel’s attempts to elude its rights and obligations as Occupying Power.
In broad terms, Israel’s responsibilities as occupant under international humanitarian law lied in ensuring that its armed forces respect the Fourth Geneva Convention and Section III of the Hague regulations relative to “military authority over the territory of the hostile State”. Israel was under a duty to investigate and prosecute those responsible for grave breaches of the Fourth Geneva Convention or war crimes committed in the Occupied Palestinian Territory. Israel was also responsible for compensating any damage caused.
Concerning the actions by States Parties to the Geneva Conventions to ensure and promote compliance by Israel, their guiding principles were clearly formulated by the advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In its opinion, the Court declared that all States must respect the United Nations Charter and international law. However the Court did not elaborate on the measures States could take to ensure this respect.
Building on the European Union Guidelines on promoting compliance with international humanitarian law, potential measures could include: political dialogue, the internalization of norms, public statements, non-public demarches, unilateral restriction, countermeasures, the conditionality of trade and assistance, individual responsibility and the fight against impunity, the evocation of State responsibility, international dispute settlements and international cooperation. Some of these tools were more formal than others; hence the importance to strive for an appropriate mix of their use, although many still depended on the political will of governments.
The legacy of the advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory continued to offer a guiding framework. It reaffirmed the wide competence of the General Assembly in peace maintenance and bolstered its competence in requesting an advisory opinion. It confirmed that human rights instruments continued to apply in armed conflict situations and that they were in certain situations complementary with international humanitarian law. It also concluded on the ground of Security Council resolutions that “Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) violated Article 49, paragraph 6, of the Fourth Geneva Convention.”
Moreover, it was pointed out that the Court underlined the continuing and special responsibility of the United Nations to enforce the provisions of its advisory opinion. However, the United Nations showed a disappointing record with series of watered down resolutions, including the late establishment of the United Nations Register of Damage. The United Nations also failed to utilize on the Palestinian issue multilateral mechanisms that had been used in similar cases and situations: economic sanctions and divestment policies (South Africa, Portuguese territories), financial and diplomatic sanctions (Israel concerning Golan Heights), establishment of a mixed internal/international tribunal (Cambodia), etc. The United States also prevented robust action by the Security Council through the repeated use of its veto power, preventing attempts to persuade the Israeli Government to engage in a genuine peace process based on UN international standards.
On Third Party responsibility, it was stressed that the Court declared in its advisory opinion that all States were under an obligation “not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.” Such duty of non-recognition on the part of States was also found in Security Council resolutions concerning the change of status of the Occupied Palestinian Territory. Third Party responsibility could also be established through complicity, failure to react to international law breaches or through the activities of a private company. On the latter, the current trend was to consider that private corporations were directly responsible for crimes under international law, as recently expressed by the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.
Taking the above into consideration, any new advisory opinion should bear a more holistic approach to view the consequences (not the Statehood which was by now an acquis) of the General Assembly resolution 67/19.
While reviewing the general legal implications stemming from the status of non-Member Observer State, the Roundtable participants agreed that General Assembly resolution 67/19 did not indicate the emergence of a State. It rather bestowed an extensive body of facts, developed through Palestinian practice in international relations and showing an ability to activate an existing State status.
The State of Palestine’s submission of letters of accession to 21 treaties and conventions on 1 April 2014 was largely discussed. Depending on their category, human rights, diplomatic, governance, humanitarian law and international criminal law, it was underscored that such treaties and conventions also entailed rights and obligations for the State of Palestine to meet international standards. Concerning the particular case of the Four Geneva Conventions, their accession confirmed the international character of the Israeli-Palestinian conflict and offered clear options to challenge the occupation and its corollary, the settlements.
Several participants referred to State dispute settlement clauses in international agreements, specifying that Israel made reservations in all of them besides the Convention on the Prevention and Punishment of the Crime of Genocide. Despite this fact, it was mentioned that it could be challenged, arguing that such exceptions were contrary to the essence of the treaties. It was particularly relevant for the case of international human rights instruments, though States were rather reluctant to lodge complaints against other States.
Regarding possible new membership of the State of Palestine in United Nations Specialized Agencies and other global organizations, it was demonstrated that the problem was essentially of political nature (preemptive financial pressures exerted by the United States). Presented were diverse application procedures (some friendlier than others) with different types of majority. It was suggested that the State of Palestine should join the International Fund for Agricultural Development, the United Nations Industrial Development Organization and the World Intellectual Property Organization as these organizations were neither receiving funds from the United States nor requiring a vote.
During the last session of the Roundtable, it was specified that General Assembly resolution 67/19 did not change the relationship of the State of Palestine with the International Court of Justice with respect to advisory opinions. It however opened the possibility to join the Court, but the risk of a veto from the United States was likely since the Security Council was the decisive organ concerning the Court membership. A mere declaration to accept compulsory jurisdiction as per article 35 paragraph 2 of the Statute of the Court was described as posing limited perspectives, but could still be regarded as an option.
Concerning the accession to the Rome Statute of the International Criminal Court, some experts argued that the State of Palestine should lodge a new declaration to accept the exercise of the jurisdiction by the Court as per its article 12 paragraph 3. This presented the sole option for retroactivity. Nevertheless, a new declaration could be seen as recognition that the State of Palestine only existed since resolution 67/19, thus endorsing the 2012 decision of the office of the Prosecutor of the International Criminal Court, which rejected the 2009 declaration of the Palestinian Authority on the premise it was an “Observer” and not a “Non-Member State” of the General Assembly. This led some experts to consider that the 2009 declaration of the Palestinian Authority was still valid and should merely be reconfirmed, along with a formal ratification of the Rome Statute.
Ratification as such was not presenting legal obstacles, but in this case the Court would exercise its jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute. Furthermore, some experts warned that the limitation of jurisdiction embedded in the Oslo Accords could impact the jurisdiction of the International Criminal Court if the Palestinian Authority ratified the Statute. They also insisted on the importance of properly analysing the cases of continuous crimes such as settlement constructions and population transfers.
The Palestinian Minister of Prisoners Affairs, in his concluding remarks as the representative of the State of Palestine, stressed the great benefit of the Roundtable. He reiterated the commitment of the State of Palestine to negotiations, peace and justice and concluded with a quote from Marwan Barghouti: “the last day at the age of occupation is the first day of peace in the region.”
Closing the Seminar, the Chairman of the Committee noted that the acceleration of the search for peace needed to go hand in hand with greater accountability, political will and respect for international law and human rights principles. He reiterated the support of the Committee towards these objectives and ascertained that it would invest greater efforts to advance the rule of law.
***Note: This Summary attempts to provide an overall picture of the deliberations of the Seminar, without singling out individual expert presentations in the plenary sessions. A detailed report summarizing each statement and presentation will be published by the Division for Palestinian Rights in due course.