Home Archive for category "Palestine" (Page 5)

Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Published on September 6, 2012        Author: 

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank.  On 9 July 2012, the Commission’s report was released.  The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation.  It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel.  Indeed, they are well-worn, tired, and have been thoroughly discredited in the past.  They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law.  The Report states:

“Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.”

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ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

Published on April 5, 2012        Author: 

On Tuesday, the Office of the Prosecutor at the International Criminal Court issued a statement denying the Prosecutor’s competence to decide on Palestine’s acceptance of ICC jurisdiction. The ICC Prosecutor indicated in his statement that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. The declaration by the Palestinian Authority was made under Article 12(3) of the ICC Statute. That provision allows States that are not party to the ICC Statute to accept the jurisdiction of the Court over crimes committed on the territory of that State or by its nationals. If the Palestinian declaration were accepted as a basis for ICC jurisdiction, it would grant the ICC jurisdiction over all ICC crimes (genocide, war crimes and crimes against humanity) committed on Palestinian territory since July 2002. Crucially, the declaration would give the Court jurisdiction not only over acts of Palestinians but also over acts by Israeli officials and nationals in Gaza and the West Bank. The key question with regard to the Palestinian declaration is whether Palestine is a State, since only States may make declarations under Article 12(3) of the ICC Statute. In his one and a half page statement, the Prosecutor has decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In short, it has taken the Prosecutor over three years to decide that it is not up to him to decide the question of the statehood of Palestine. The Prosecutor’s decision that it is up to the organs of the UN or to the Assembly of State Parties to the ICC Statute to decide on the statehood of Palestine, even in the context of decisions relating to the ICC is reasonable, both from the political and legal points of view. To the extent that the Prosecutor is asking throwing this explosive decision back to States, the Prosecutor is seeking to safeguard himself and his office from allegations that he is taking political decisions. However, there are questions as to whether this reasonable decision is legally correct. Oddly, an important factor, ignored by the Prosecutor is Palestine’s admission to UNESCO (see previous EJIL:Talk! post on that issue here). At first glance, the admission of Palestine to UNESCO seems most unrelated to questions to do with the jurisdiction of the ICC. However, as explained below, and by Bill Schabas on his blog last year, UNESCO’s decision may be highly relevant.

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Palestine, Statehood and the Challenges of Representation

Published on December 19, 2011        Author: 

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

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UNESCO Approves Palestinian Membership Bid – A Case for US Countermeasures Against the Organization?

Published on November 8, 2011        Author: 

Christiane Ahlborn is Ph.D. Candidate at the Amsterdam Center for International Law and member of the project on Shared Responsibility in International Law (SHARES)

On 31 October 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) approved the bid of Palestine for full membership with the necessary two-thirds majority. Although 107 UNESCO States voted in favor of Palestinian membership, the approval also faced notable opposition by 14 States. The overall number of 173 votes cast included 52 abstentions. Among the States voting against the bid were the United States, Canada and several EU member States, including Germany and the Netherlands. While the diverging positions of EU member States thus reveals once again the lack of unanimity in EU external relations policy, the US disapproval of the Palestinian UNESCO membership may have more serious consequences at the level of US-UNESCO relations. For after the approval of Palestine’s membership bid, the US immediately announced that it would cut off its funds to UNESCO, which amount to 60 million USD annually. This decision is based on several US laws that prohibit the US government to provide funds to any United Nations agency or affiliated organization that “accords the Palestine Liberation Organization the same standing as member states” (see P.L. 101-246, Title IV [1990] and P.L. 103-236, Title IV [1994]).

International Responsibility for Withholding Membership Dues

Since the US is the largest contributor to the UNESCO budget with a share of 22 percent, its decision to withhold its contributions will most likely impede the effective functioning of the organization. As the Director-General of UNESCO stated on 2 November 2011, the continued withholding of dues may severely affect UNESCO’s activities in a variety of areas. UNESCO already felt the repercussions of the lack of US funding after 1984 when the United States withdrew from UNESCO due to the increasing politicization of the Organization, rejoining only in 2003 (for a discussion of the reasons for the withdrawal see Hans N. Weiler, ‘Withdrawing from UNESCO: A Decision in Search of an Argument’ (1986) Comparative Education Review 132).

Considering the potentially detrimental effects of US withholdings, this contribution seeks to examine whether the US could be held internationally responsible for its acts under the law of international responsibility. After all, Article IX of the constituent instrument of UNESCO (the UNESCO Constitution) states that member States of the organization have a “financial responsibility” towards the Organization, i.e. an obligation to provide the Organization with the necessary financial resources, as decided by the General Conference of UNESCO. Although this obligation arguably could have been formulated in more concrete terms, it is suggested that the United States would breach its obligations under the UNESCO Constitution by withholding its membership dues, and accordingly be under a secondary obligation to make reparation either in kind and/or by means of compensation.

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Palestine’s Application for UN Membership

Published on October 1, 2011        Author: 

The official application submitted by Palestine for UN membership is now available here, UN Doc. S/2011/592 (h/t Diane Marie Amann). It is of interest not the least because it has been carefully drafted and with the benefit of substantial legal advice. Note, first, how Mahmoud Abbas is not titled President of the Palestinian National Authority, but as President of the State of Palestine (he was appointed as such some years ago by the PLO). Note also how for good reason the letter does not say when exactly Palestine became a state, nor does it declare Palestine’s independence anew; rather, it refers to the 15 November 1988 DoI.

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The Birth of Israel and Palestine – The Ifs of History, Then and Now

Published on September 26, 2011        Author: 

Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Read the rest of this entry…

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Ronen and Pellet on the ICC and Gaza

Published on March 11, 2010        Author: 

I’d like to commend to our readers’ attention an excellent article by Yael Ronen in the most recent issue of the JICJ on the declaration lodged by Palestine accepting the jurisdiction of the ICC with respect to Gaza, raising the issue whether Palestine qualifies as a state in the sense of the Article 12(3) of the Rome Statute – final version here, SSRN draft here. Here’s an abstract:

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. It argues that there is no justification for such a purposive interpretation, as the ICC Statute already contains an adequate mechanism to deal with exceptional situations such as that of the Gaza Strip. Finally, the article examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition. It argues that taking on the Palestine case would open up a Pandora’s Box and risk turning the ICC into a political playing field for aspirant entities in search of international status.

For what it’s worth, I am personally in broad agreement with Yael’s argument, even if I don’t think that it is in principle objectionable for the ICC or for its prosecutor to address issues of statehood purely as preliminary questions. For a different take than Yael’s, Alain Pellet has prepared a legal opinion arguing that the term ‘state’ in Article 12(3) should be interpreted purposefully so as to allow the Palestinian declaration, even if Palestine is not a state as a matter of general international law – see more here on Bill Schabas’ blog. We’ll see, of course, what the Court ultimately makes of the whole thing.

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Goldstone Report on Gaza: A Question of Trust

Published on September 16, 2009        Author: 

I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.

Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.

And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.

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