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22 July 2009



UNITED NATIONS INTERNATIONAL MEETING ON QUESTION OF PALESTINE DISCUSSES THE COLLECTIVE RESPONSIBILITY OF ALL STATES FOR PALESTINE
Speakers Emphasize that Legally the International Community is Bound to Act
22 July 2009

The United Nations international meeting on the question of Palestine continued this afternoon to discuss the responsibility of Governments and intergovernmental organizations in upholding international law. Later in the meeting, participants held a dialogue on that theme and continued discussion on the topic of this morning’s plenary, which focused on the results of investigations of Israeli conduct during the war in Gaza.

Addressing the international legal issues, a panellist noted the Advisory Opinion of the International Court of Justice had highlighted the obligation of States that once illegality of an action was determined they were no longer able to act in disregard of that illegality. Another panellist observed that, while Israel rejected its responsibility for complying with certain of the non-derogable obligations laid out in the
jus ad bellum – arguing that the law and obligations in question were not de jure applicable to the factual situation – the overwhelming majority of the international community considered them as applicable. Also considered was the importance of establishing Palestinian statehood as a means for securing remedies for civilians subjected to violations of international humanitarian law. In that connection, a panellist made a case that Palestine was and had been a State under international law since 1924.

International law carried the customary obligation that States not recognize as lawful situations resulting from another State’s serious breach of an obligation and that they cooperate in bringing such serious breaches to an end, as well as that they respect and ensure respect for the Geneva Conventions in all circumstances. In that connection, a panellist said that the Middle East was a model of the failure of international collective responsibility for peace. The fact that there was no follow-up to breaches of international humanitarian law by the international community showed the extent of the failure. Another panellist noted that the efforts of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was turning 60 this year, could only alleviate, for a limited time, the absence of a political solution. Gaza continued to suffer from the results of the latest conflict and the closure since January 2007 and even with a complete lifting of the blockade, it would take long time to reconstruct.

In the ensuing discussion, participants asked questions, inter alia, concerning the legal possibility to reverse a country’s commitment to universal jurisdiction; a possible trend to view the Palestinian situation from a mere humanitarian standpoint; the eventual necessity of Palestinians to recognize a Jewish State; possible recourse the Palestinian people had if the international community was unwilling to react; legal implications of attacks on Israeli settlements in Palestine; information on attacks on United Nations compounds.

Panellists in this afternoon’s meeting included, Vera Gowlland-Debbas, Professor of Public International Law Graduate Institute of International Studies Geneva; Charles Shamas, Senior Partner MATTIN Group Ramallah (a voluntary human rights-based partnership in the Occupied Palestinian Territories); John B. Quigley,
Professor of International Law at Moritz College of Law, Ohio State University; Nathalie Tocci, a Senior Fellow with the Istituto Affari Internazionali in Rome; Moufed Mahmoud Shehab, Minister for Legal and Parliamentary Affairs of Egypt; and Mark Brailsford, Senior Protection Coordinator at the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

Participating in the exchange of views following panellists’ statements were representatives of Egypt, Namibia, the Third World Network and the Arab Commission for Human Rights.

When the International Meeting reconvenes tomorrow at 10 a.m. it will hold a third plenary on the role of parliaments and civil society in advocating adherence to international humanitarian and human rights law.

Statements


VERA GOWLLAND-DEBBAS,
Professor of Public International Law at the Graduate Institute of International Studies in Geneva, said that the status of Palestine was regulated by international law. Various rights had to be taken into account, including the right to self-determination; the right to statehood; the right to respect the sovereignty of a State; and the right to claim reparation for loss of resources. The International Court of Justice (ICJ) had in July 2004 in an Advisory Opinion determined the illegality of the occupation. The Gaza Strip constituted an integral part of the territory occupied in 1967 and was part of Palestine. The applicable law during conflict included human rights law. The norms that were applicable, as for example the right to self-determination, were international laws from which no derogation was possible. Having examined its legal status, Palestine had to be deemed to be of direct concern to the United Nations.

The ICJ had in its Advisory Opinion highlighted the obligation of other States to perform certain obligations: once illegality was determined, States were no longer able to act in disregard of that illegality. Israel had undertaken a sanctions policy that was in violation of international law, including the limiting of access to potable water and the sewerage system. Under international law, the Occupying Power was under the obligation to provide such basic services to the occupied people. Israel had committed serious breaches of international law and other States had the duty to react to such breaches. Breaches included, among others, aid or assistance for the perpetration of wrongful acts, such as training, arming, financing, issuing of export licenses for weapons. Every single State had the duty to cooperate to reach the cessation of the breach and no State should recognize as lawful the situation created by the breach. Further, the responsibility for actions of private companies could be attributed to a State if it had backed the companies’ projects, such as for example the exploitation of Gaza’s natural resources. Of course, States could invoke the breaches before national Courts and also reparation for the losses suffered by the occupied people. Regarding the role of the International Criminal Court, Ms. Gowlland-Debbas said that the issue of Palestine was in conformity with the jurisdiction of the Statute of the International Criminal Court, which included the aim to end impunity for war crimes.

CHARLES SHAMAS, a
Senior Partner with the MATTIN Group (a voluntary human rights-based partnership in the Occupied Palestinian Territories) said that he wanted responsibility to be delivered and that responsibility existed factually. The international law to be upheld was the international law of occupation and jus ad bellum. Israel rejected its responsibility for complying with certain of the non-derogable obligations laid out in that law, arguing that the law and obligations in question were not de jure applicable to the factual situation, while the overwhelming majority of the international community considered them as applicable. The International Court of Justice and the United Nations Security Council had also fixed responsibility with Israel.

The highly consensual foundation of international law was reflected in the persisting failure to establish a rule of law at the international level; States did not have to submit to the jurisdiction of the International Court of Justice and the International Criminal Court. International law also relied heavily on States creating municipal legislation that at least enabled, and ideally ensured, implementation of their international responsibilities. The core obligations comprising “third-State responsibility” were: the customary obligation not to recognize as lawful the situation resulting from another State’s serious breach of an obligation or to aid or assist in maintaining it; the customary obligation to cooperate to bring such serious breaches to an end; and the duty to set out Article 1 of the four Geneva Conventions to “respect and ensure respect for [these] Conventions in all circumstances”. Several examples were given drawn from the European Union-Israel relationship to illustrate how the readiness of European Union judicial authorities to uphold the proper implementation of European Union municipal legislation could give substance to the duty of “non-recognition”. In conclusion, Mr. Shamas observed that it was not helpful to lecture States on their responsibilities if they could not challenge their own failure to perform them.

JOHN B. QUIGLEY
, Professor of International Law at Moritz College of Law, Ohio State University, said that the war in Gaza in late 2008 and early 2009 had brought into focus the importance of Palestinian statehood – States were in a stronger position than non-States in securing remedies when their civilians were subjected to atrocities in violation of international humanitarian law. Individual Governments and the United Nations could make a significant contribution to protecting civilians in Palestine by taking measures, individually and collectively, to make it clear that Palestine was a State. The International Criminal Court only had jurisdiction if a crime was committed within the territory of the State Parties to the Rome Statute, which Palestine was not. While Palestine had sought to give the Court jurisdiction by declaring its acceptance of that jurisdiction, as a State Palestine would be entitled to do so.

However, although the international community could and should do more to solidify international acceptance of Palestine, it had already done more than enough to establish Palestine as a State. Indeed, Palestine had been a State since 1924. Herbert Samuel, the first High Commissioner for Britain of Palestine, had said that Palestine was a State, as had Norman Bentwich, Palestine’s then-Attorney General. History had very well established that Palestine was a State. Israel’s occupation of Gaza and the West Bank beginning in 1967 had not extinguished Palestinian statehood. Israel had taken control subject to the existing statehood of Palestine. Other evidence was that various United Nations bodies had admitted Palestine to membership, regarding Palestine as a State. The manner in which Palestine had been regarded and treated by the international community had been consistent from the time of the Treaty of Lausanne to the present. The international community had regarded Palestine as a State, even though it had not, to date, had its own administrative apparatus. As to the current lack of full administrative control due to Israel’s belligerent occupancy, it was widely conceded that belligerent occupancy did not affect sovereignty. Mr. Quigley also said that Palestine should be accepted as party to additional multilateral treaties, in particular to those that were of vital significance to it, like the Geneva Conventions and the human rights treaties. In that regard, the Government of Switzerland as depositary for the Geneva Conventions had declined Palestine’s ratification in 1989 on the rationale that the status of Palestine was being resolved at the United Nations, and that the matter should not fall to a single State because it happened to be depositary on particular treaties.

NATHALIE TOCCI, a
Senior Fellow with the Istituto Affari Internazionali in Rome, speaking on the European Union’s policy during and in the aftermath of the War in Gaza, said that European Union member States had to show respect for international humanitarian law and ensure that was being respected by others. The European Union could also resort to negative measures, such as sanctions, trade sanctions, flight bans and others in cases of human rights violations. But during the events in Gaza, the European Union had failed to respect its obligations and had acquiesced in the events. The European Union had further fuelled the dynamics of the conflicts by further acquiescing to international humanitarian law and human rights violations during the conflict. There was an inconsistency between the aims and actions of the European Union, as it was still pursuing a two-State solution as part of its policy.

Ms. Tocci said that the European Union had to rethink its policy objectives. That could lead to an abandonment of a two-State solution in theory, but that was impossible in reality. The European Union could also not abandon its goal for respect of international humanitarian law and human rights. The only way for the European Union to achieve internal coherence was for it to rethink its policy. Above all that would entail working together with the United Nations in supporting the findings of the Board of Inquiry. The European Union had also to continue to press Israel to open other access points to the Gaza Strip besides the Rafah crossing.

MOUFED MAHMOUD SHEHAB,
Minister for Legal and Parliamentary Affairs of Egypt, observed that States had a dual obligation to act individually and collectively. Shared responsibility was one form of collective responsibility which was applied in international trade and environmental law. Concerning international human rights law, the interest by the public in human rights situations all over the world showed that human rights were no longer considered as being an internal matter. However, the Middle East was a model of the failure of international collective responsibility for peace. It was a collective responsibility to have international humanitarian law respected by everyone. The fact that there was no follow-up to breaches of international humanitarian law by the international community showed the extent of the failure.

It was intolerable but also inevitable that every time the situation of Palestine was discussed in the United Nations there was a cleavage and interminable political divergences. To avoid a dialogue of the deaf within the United Nations was possible, if they could shake of politicization in all United Nations bodies. If the international community could not take on its obligation to collective responsibility in the present, it was nonetheless feasible to leave possibilities for the future. At the least, the international community had to be able to draw up a list of the damages done to international humanitarian law. The excesses on the Israeli side were obvious, as various reports, including those of the Special Rapporteur of the Human Rights Council, had shown. In conclusion, Mr. Shehab said that all positive reforms had to move into the direction of strengthening the implementation of the collective responsibility of States.

MARK BRAILSFORD,
Senior Protection Coordinator at the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), said that, on 8 December 2009, UNRWA would be 60 years old. Nobody would have imagined, 60 years ago, that they would still be needed today. The anniversary was not reason for celebration. With regard to UNRWA’s mandate, as a subsidiary body of the General Assembly, it had to respect human rights and other best practices that had been identified. The Agency’s commitment to protection was included in its main strategic plan. UNRWA did everything to advance the rights of Palestinians and refugees.

The role of UNRWA as a humanitarian and development agency was to ensure that the rights of Palestinians were ensured, but the primary responsibility for that lay with the government and the Occupying Power. The Occupying Power, the local government – Hamas at this time – and the international community had to ensure respect for the provisions of international humanitarian law and human rights. Every day, thousands of UNRWA teachers, social workers and nurses went to work to provide help to the Palestinian refugees. However, due to the lack of resources, the Agency also struggled every day to meet those needs. Moreover, all those efforts could only alleviate, for a limited time, the absence of a political solution. Gaza continued to suffer from the results of the latest conflict and the closure since January 2007. Even with a complete lifting of the blockade, it would take long time to reconstruct. UNRWA had constantly called for the reopening of access points.

In the ensuing discussion, Egypt said that the fact that the issue of Palestine had been with them for a long time was no reason for inaction. International law should be the driving force in the resolution of the issue. No matter what the politics were, international law should always be at the center as international law was clear. If the international community was unable or unwilling to stop the occupation, what recourse did the Palestinian people have? Could the idea of the responsibility to protect be implemented if there was such a big political abyss?

Namibia said that it was disheartening to see that Palestine was still on the agenda of the United Nations. Namibia asked whether the Experts saw a certain trend to turn the issue into a mere humanitarian problem. The non-governmental organization, Third World Network, asked Experts for their view on the use of certain weapons, such as the use of depleted uranium. Further, as Spain wanted to reverse its laws on universal jurisdiction, the Network asked whether once universal jurisdiction had been introduced if that could be reversed.

Responding to questions put, panellists said, regarding what could be done to enforce international law, that one had to accept that the international community lacked the will to enforce it, in the case of the question of Palestine. Why did they not have a presentation from the United Nations inquiry in the damage to the United Nations compound during the Gaza conflict? The report of the inquiry, which accused Israel, had only been partially released by the Secretary-General. That showed that the international community lacked the will to do something; it was a question of political will by states.

A panellist agreed with the observation that there was an apparent contradiction in the willingness of States to provide humanitarian aid, but in the absence of a solution they still needed to care for the people on the ground. One could not celebrate 60 years of the United Nations Relief and Works Agency; only its hard work could be celebrated. The fact that UNRWA still existed was a sign of the world’s failure.

Another panellist said that the absence of political will existed because the world relied on a system of international law that accommodated the will of the strong against that of the weak. One could not change political will by calling for a change in it. One had to show a reason for change to the actors.

A speaker asked about the follow-up on the report by the Independent Fact-Finding Committee on Gaza of the League of Arab States. As to the difficulty of obtaining balanced evidence, a Speaker wondered why that kind of balance had to appear in United Nations documents, despite the reality of the one-sided facts on the ground. Another speaker asked about the legal implications of Hamas attacks on Israeli settlements on Palestinian land. Turning to equalizing parties and ending the conflict, participants were concerned that they were not hearing about the obligations of the Occupier. Speakers raised the fact that the whole of the report of the Board of Inquiry on attacks on United Nations compounds had not been released. In that connection, a participant observed that if there was political will in the General Assembly, it could certainly compel the release of the report.

In the second round of answers, panellists said that, on the right of resistance of Palestinians, it was generally accepted today that international humanitarian law applied to both State and non-state actors. Thus, Palestinian fighters firing rockets into Israel were committing crimes.

One panellist noted that since the conflict they had seen a number of reports and all of them were reaching the same kinds of conclusions. It would be a disaster if nobody would act on them. One panellist hoped that the League of Arab States would bring this up at the upcoming General Assembly.

Another panellist noted that the right of resistance was still conditioned by international law. It gave the right to use military force, but it had to be used in consistence with international law. A panellist said that one could invoke the Convention on Privileges and Immunities, with regard to the bad treatment that had been experienced by the Special Rapporteur Richard Falk when he tried to enter Israel. The General Assembly could also constitute a similar body to the United Nations Compensation Commission for Palestine.


For use of the information media; not an official record



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