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"As is" reference - not a United Nations document

Source: Sweden
12 April 2005

Speech by Ms Laila Freivalds, Minister for Foreign Affairs at the Conference "International law in the shadow of the Israeli occupation

First, let me express my gratitude and thanks to the organisers for inviting me to this important event. The issues you have discussed today are pertinent and difficult.

I have been following the Arab-Israeli conflict since I was a young law student back in the late 1960s. Most of the time, political developments have been frustrating. As a lawyer, I have taken a special interest in the legal aspects. The 1947 UN Resolution 181 on the partition of Palestine marked the beginning of a legal discussion that is still ongoing. Then, as now, the law of occupation, the question of Jerusalem, the Fourth Geneva Conventions applicability and human rights were crucial issues.

For Sweden, as for the entire international community, the Israeli-Palestinian conflict has for decades been one of the most important international issues. As an active proponent of the principles of international law, peaceful settlement of disputes, human rights and the rule of law, it is only natural for Sweden to engage in the work of promoting peace between Israelis and Palestinians. And furthermore, when violations of the fundamental principles of international law occur, there is an obligation to act.

At the same time, the Israeli-Palestinian conflict contains hopes, dreams and aspirations that can never be analysed from a strictly legal point of view. It is a conflict in which everyone has an opinion of what is wrong and what is right and who is wrong and who is right.

At its root, this is a conflict over territory and self-determination.

As such it is a conflict in which it should be possible to take recourse to international law and to gain the acceptance of the parties to do so in good faith as they agree to embark on negotiations. Today, international law covers a vast area but excludes, most notably, the complex issue of the definition of terrorism. In this discussion we must recognise that the Israeli government has the right and indeed the obligation to protect its citizens against terrorist acts but it has to do so within the framework of international law. Terrorism against civilians can never be accepted.

Let me now turn to the Swedish Governments views on the legal aspects of the Israeli-Palestinian conflict.

Any solution to the conflict must be based on international law, including UN Resolutions 242, 338 and 1397. Only mutual agreement between the parties can justify divergences from this principle. Measures taken without the consent of the other party will not be conducive to a lasting and viable solution of the conflict nor to a renewed peace process.

Therefore, Sweden cannot accept the Israeli settlements as "realities on the ground", as something inevitable that must be taken into account when agreeing on the basis for negotiations. The Israeli withdrawal from Gaza cannot be anything but a step towards the end of the Israeli occupation, and an agreement on final status.

Sweden recognises that Prime Minister Sharon has taken a risk with his Gaza initiative. But "Gaza only" will not bring a sustainable peaceful solution closer. As Prime Minister Persson stressed during his recent visit to Israel and the Palestinian territories, the Gaza withdrawal cannot be a one-off event.

Once we all agree that we want to reach a viable solution, international law is the most important tool at our disposal. But in the absence of the necessary political will of the international community and an effective international central authority, the question remains: how can the principles of international law be enforced?

The honest answer is that they cant. We can urge and cajole the parties to accept and respect international law, but we cannot enforce this. We can encourage the parties to a certain degree and offer, but not impose on them our good offices. We can and must react, but we have all seen that even loud condemnations from the international community have had little impact on the parties and on the situation on the ground. Some have suggested that we use our trade relations with the parties in order to emphatically encourage change. Needless to say, all our relations, including trade, would benefit greatly from a peaceful solution of the conflict. However, as we have seen in many other conflicts, the use of sanctions seldom leads to the desired result. This is therefore a path that we should contemplate only if all other measures have failed.

International law can serve as a guide to the worlds policy-makers. I believe, however, that it should be more than that. The precepts of international law, including international humanitarian law and human rights, cannot be disregarded at will. They should lie at the heart of international efforts to create a more secure world for all. Our particular role is to remind our partners of this. And to encourage them to form their policies in accordance with these principles, in line with our pursuit to build an international society based on the rule of law.

At perhaps no other time during the last sixty or so years of Arab-Israeli conflict has this been more important than today. While the conflict has gone through periods of calm and hope, as well as periods of extreme violence and profound mistrust, there has always been an international consensus around the idea that a peaceful solution to this conflict could only be found through international law.

Today, I detect a dangerous shift away from this consensus.

The withdrawal from Gaza cannot be allowed to lead to a stronger Israeli presence in the West Bank. Unfortunately, the withdrawal from Gaza seems to have made the international community less inclined to focus on the situation in the West Bank and the fundamental issue the Israeli occupation.

Israeli settlement activities in the West Bank have not ceased. Some, but far from all, illegal outposts have been dismantled after considerable international pressure. The Israeli government recently announced the expansion of the Maale Adumim settlement, with the express purpose of connecting it to Jerusalem proper. At the same time other settlements are growing quietly but rapidly. The construction of the separation barrier continues, still largely on occupied territory, despite some minor adjustments. Israel claims that the barrier is a temporary security measure, and not a political border. The construction of elaborate infrastructure around the barrier and the settlements suggest otherwise.

All this is very alarming, both from a political and legal standpoint. But developments on the ground are now aggravated by the fact that Israel considers that the basic reference point for future negotiations will not be the 1967 borders. Israel instead refers to the understanding between Prime Minister Sharon and President Bush from April of last year. It is very hard to escape the impression that Israel will only accept final status negotiations with the new realities on the ground as the starting-point.

Some used to say that there was no Palestinian partner for negotiations. I did not agree then. Today, we are in a situation where free and fair presidential elections have been held and the legitimacy of Mahmoud Abbas is indisputable. The de facto cease-fire announced by all Palestinian factions is another positive and crucial step.

Although not a prerequisite for negotiations, the internal reform underway on the Palestinian side gives evidence of the new leaderships endeavours to build a society based on good governance and democracy. This reform is progressing, slowly but surely. President Abbas now has to tackle corruption in the Palestinian administration in an unequivocal manner. Further steps to ensure civilian control over the security forces have to be taken.

The slow progress of reform, coupled with continued settlement expansion and construction of the barrier, tend to strengthen support for radical groups. This fact may be reflected in the parliamentary elections in July, as we have already seen in the local elections. Thus a new political landscape may emerge, with potential ramifications for efforts to re-start the peace process.

But this also offers an opportunity to Hamas and other organisations of the same ilk. Given Hamas record, they must realise that we have serious doubts that they are ready to abandon their terrorist activities. But it is time for them to choose; if they honestly engage in a political process, with all its implications, and play according to the rules, we are prepared to see them as future partners on the road to peace. But as I said, it is time for them to make up their minds! And to join those of us who want to see two independent and democratic states living side by side in peace and security.

And to those in the West Bank, Gaza and countries in the region who support terrorist activities, they, too, need to make up their minds!

Terrorism can never be accepted. It is a clear violation of the fundamentals of human rights and international law.

Now, let me turn to the obligations of the international community.

Through the Quartet in particular, the international community has a crucial role to play in supporting and encouraging the parties to show courage and political will.

The February Sharm el Sheik summit was followed by the first high-level Quartet meeting in almost a year. This was positive. But it was not enough. We, the international community, must do more if we want to continue to be a trustworthy steward of the Road Map for peace that is accepted by the parties. We also have to strongly encourage and support other initiatives aiming at a peaceful solution. One important such initiative was the 2002 Beirut Declaration in which the Arab League members, for the first time in unanimity, offered Israel full recognition in return for a total withdrawal to the 1967 borders.

It is my firm view that the international community cannot play a role in this conflict, if it, or parts of it, abandon its insistence on the primacy of international law. Whatever assurances Israel has received in this regard, the international community must continue to demand that a solution to the conflict be based on the relevant UN resolutions.

In practical terms, this means that the international community, including all of the Quartet members, must uphold the following principles:

- Any solution to the issue of Palestinian refugees that has not been agreed upon by the parties concerned in direct negotiations will not be acceptable.

- Any change in the status of Jerusalem that has not been agreed upon by the parties concerned in direct negotiations will not be acceptable.

And finally:
- Any changes to the pre-1967 borders that have not been agreed upon by the parties concerned in direct negotiations will not be acceptable.

To abandon these fundamental principles would have serious consequences for international law. It would constitute a departure from the primacy of international law as the basis for conflict resolution, and a tacit recognition of a right to acquire territory by force.

Legal damage would be matched by political damage. It is highly likely that a settlement of this conflict that is not based on international law would be neither just, nor lasting, but only temporary and illusive. It would have much smaller chances of meeting with the approval of the Israelis and Palestinians, the peoples of the Middle East, or international public opinion.

That is why the future of this conflict, as well as the Middle East as a whole, depends on how we and the parties decide to use the instruments offered by international law.

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