By: Professor John Dugard*.
The dispute over Palestine is a political one but it is conducted within a legal framework. From the outset – the notorious Partition Plan contained in General Assembly Resolution 181(II) – international law has played an important role in the dispute. Today, the dispute is probably more characterized by legal argument than at any time before. It is, therefore, appropriate to consider the dispute in legal terms, as we shall be doing in this Conference.
Since the declaration of the state of Israel over sixty years ago Israel has consistently been in violation of international law. Over the years it has violated – and is still violating- some of the most fundamental norms of international law. It has been held to be in violation of international law by the Security Council, the General Assembly, the Human Rights Council, human rights treaty monitoring bodies and the International Court of Justice. In this respect it resembles apartheid South Africa which for over forty years violated international law by practicing racial discrimination, engaging in political repression, manufacturing nuclear weapons and carrying out military offensives against its neighbours. But there the similarity ends.
South Africa was subjected to an arms embargo by the Security Council, to all sorts of sanctions by the General Assembly and by nations states. It was isolated by the international community in trade, sport, education and cultural life. Ultimately it succumbed to international pressure and abandoned apartheid. Israel on the other hand, remains a friend of the West and has been subjected to little pressure to conform to international standards. Why? And what are the consequences? These are some of the things I wish to speak about today.
In approaching this subject I will consider three issues. First, the principal legal norms that have been violated. Secondly, the response of the international community and why Israel is a protected State. Thirdly, what the consequences of the present situation are for world peace in general and human rights in particular.
I. The Principal Legal Norms Violated by Israel
Ethnic cleansing is one of the most heinous of international crimes. It is certainly a crime against humanity and it may constitute genocide. The ethnic cleansing of Palestinians from the newly formed state of Israel in 1948 was originally portrayed by Israel as the “voluntary departure ”of hundreds of thousands of Palestinians to neighbouring states. Today the historical record of the Nakba has been more carefully scrutinized by Ilan Pappe ( The Ethnic Cleansing of Palestine ( 2006)) – and others and there can be no doubt that Israel in a cruel and calculated manner drove some 750,000 Palestinians from their homes by a process of terror and violence. To aggravate matters Israel ignored, and still ignores, General Assembly Resolution 194(III) of 11 December 1948 which declares that refugees should be allowed to return to their homes and compensation should be paid in the case of those not wishing to return. Despite the fact that Israel in its first year of existence had committed crimes against humanity in a systematic manner and refused to comply with the General Assembly’s prescription for the solution to the Palestinian refugee problem, it was admitted to the United Nations as a “peace loving state” that was “able and willing to carry out the obligations contained in the Charter” on 11 May 1949. From the very beginning therefore the international community turned a blind eye to Israel’s crimes and indicated that it was to be protected and promoted however badly it behaved.
Israel’s 1956 Sinai campaign was hailed in Israel (and Britain and France) as a defensive and just war. But, again, recent studies with full access to the historical materials have reached a different conclusion. The Israeli historian, Avi Shlaim, argues that Israel, Britain and France engaged in a “tripartite aggression” that had disastrous political consequences (The Iron Wall (2000) p 184). What is striking about this failed adventure is that Britain, despite its reservations about the creation of the state of Israel in 1948/49 was prepared to involve Israel as an ally in an aggressive war.
Time does not permit me to enter into the debate of whether Israel acted in self-defence or whether it was the aggressor in the 1967 Six Day War. Suffice it to say that after the war the Security Council passed resolution 242 in which it affirmed that the principles of the UN Charter required “the withdrawal of Israel armed forces from territories occupied in the recent conflict”. Israel has refused to heed this call and has instead formally annexed East Jerusalem and the Golan Heights and refused to withdraw from the West Bank and Gaza. To date no state has recognized Israel’s annexation of East Jerusalem and the Golan Heights which demonstrates the degree of international consensus on the illegality of Israel’s annexations. Israel has sought to justify its failure to withdraw from the territories that it occupied in 1967 except Sinai on the specious ground that the resolution does not require Israel to withdraw from ‘”all” territories occupied and therefore permits Israel to annex portions of the West Bank. Careful studies on this subject , that examine the historical record, again show that Israel’s arguments are simply wrong. (See John McHugo “Resolution 242: A Legal Reappraisal”(2002) 51 International and Comparative Law Quarterly 851.)
The international community is united in its belief that the Fourth Geneva Convention of 1949 is binding on Israel in respect of its treatment of the West Bank, East Jerusalem and Gaza. This belief is founded on sound legal principle and the interpretation of the Convention. But , again, Israel has raised specious legal arguments to justify its refusal to apply the Convention in the occupied territories, claiming that the occupation did not result in the occupation of territory of a sovereign state and this renders the Fourth Geneva Convention inapplicable. Despite the unanimity of the international community on this subject, the Israeli government refuses to budge. Not even the 2004 Advisory Opinion of the International Court of Justice on the Wall (2004 ICJ Reports 131) – unanimous on this subject – has persuaded Israel to accept the rules of international law. Which is not surprising as Israel’s promotion of settlements in the West Bank (and previously Gaza) is premised on the non-binding force of the Fourth Geneva Convention.
Israel’s refusal to stop the construction of settlements is a clear violation of Article 49(6) of the Fourth Geneva Convention. The international community is agreed on this. There is no support for Israel’s ridiculous interpretations of the provision; and not even the Israeli Supreme Court, usually prepared to give support to government positions, has endorsed the governments position. But this, the international community has failed to take meaningful action, despite the fact that the continued construction of settlements makes a two-state solution increasingly non-viable.
Israel is in violation of many other provisions of the Fourth Geneva Convention, ranging from the violation of collective punishment (Article 33) to the destruction of property and demolition of homes not justified by military necessity (Article 53). What is often forgotten is that the Convention and customary international law require Israel to ensure the health and educational needs of the occupied people and to provide adequate food and medicines for them (Articles 50, 55 and 56). Israel completely fails to comply with these obligations and instead relies on the international donor community and tunnel smugglers to fulfil its obligations. Of course the donor community is in an awkward situation: on the one hand, it knows that it is protecting Israel but on the other hand it knows that if it does nothing the Palestinian people will suffer.
Sometime in the 1970s Israel, together with apartheid South Africa, started to develop and manufacture nuclear weapons. In the early 1990s South Africa destroyed its nuclear arsenal. But Israel has retained its nuclear weapons. Unlike Iran, Israel is not a party to the Nuclear Non-Proliferation Treaty (NPT). So, unlike Iran it cannot be accused of being in violation of its obligations under this treaty. The law governing possession of nuclear weapons is unclear but there can be little doubt that customary international law prohibits the undisclosed manufacture of nuclear weapons. The attitude of the West towards Israel and Iran in this respect reveals just how far the double standard has gone. Sanctions are imposed on Iran for , perhaps, taking steps to develop nuclear weapons and failing to comply with its obligations under the NPT; but nothing happens to Israel which has nuclear weapons and fails to account for its possession of such weapons (unlike India and Pakistan).
Israel` violation of human rights treaties requires special mention. Israel is a party to the two International Covenants, the Convention on the Elimination of All Forms of Discrimination, the Convention on the Rights of the Child and the Torture
Convention. Its claims that these conventions do not govern its conduct in the occupied Palestinian territory have been rejected by both the monitoring bodies of these treaties and by the International Court of Justice. Israel’s violations of these treaties have been affirmed and documented by both monitoring bodies and the International Court of Justice.
The violation of the prohibitions on discrimination, torture and the right to life are particularly important.
Discrimination is condemned by all international human rights conventions. Israel actively discriminates against Palestinians in many fields, particularly in respect of freedom of movement. Checkpoints can be compared to the hated the pass system of apartheid South Africa, but the separate roads for settlers and Palestinians find no precedent in apartheid South Africa. Considerations of this kind explain why South Africans, black and white, who visit Palestine, routinely declare that the situation in Palestine is worse than it was in apartheid South Africa.
Today the prohibition on torture is seen as a cardinal principle of international law, one that enjoys the status of jus cogens and constitutes a crime against humanity. States that practice torture are widely castigated. But not Israel, despite the fact that there is substantial evidence that its security forces routinely and systematically engage in torture of Palestinian detainees. So too Israel’s practice of murdering political opponents, euphemistically described as targeted killings. If any other state resorted to such practices against their political opponents there would be international outrage. But it the case of Israel it is accepted and states continue to supply Israel with sophisticated weaponry to allow it to continue with this practice.
The Wall. I have seen many sections of the Wall. As Special Rapporteur on Human Rights in the Occupied Palestinian Territory I made a special point of visiting the Wall and speaking to farmers and communities affected by the Wall. I have no doubt that the primary purpose of the Wall is the de facto annexation of Palestinian land in order to include eighty per cent of the settler population within Israel and to promote the “Judaization” of Jerusalem. Israel’s initial claim that it is a ‘’security fence’’ was from the outset difficult to reconcile with the construction of the Wall within Palestinian territory instead of along the Green Line. But in recent times even Israel has dropped this argument and today unashamedly admits that its main purpose is to redraw the boundaries of Israel to include most settlements. The International Court of Justice has held the Wall to be illegal on the ground that it violates both the Fourth Geneva Convention and human rights conventions and called on Israel to dismantle the wall and to pay compensation to those whose land has been seized: Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004ICJ Report 131. The international community’s response has been weak – timid- to put it kindly. No attempt has been made to enforce the Opinion. I will say more about this shortly.
Israel is determined to change the character of Jerusalem and to transform it from the centre of Palestinian life into a Jewish city. Houses are unlawfully demolished, the Wall is constructed through Jerusalem’s neighbourhoods dividing families in the process, and access to religious sites is seriously curtailed. Even the Holy City is not exempt from Israel’s illegal land grab.
Finally, in this superficial and inadequate litany of Israel’s sins, there are its military incursions into Gaza and the West Bank since 2000, into Lebanon in 2006 and, above all, its assault on Gaza in 2008/2009 in Operation Cast Lead. As Chair of the Arab League Independent Fact Finding Committee on Gaza (IFFC), which visited Gaza in February 2009, I had occasion to see the destruction caused by the IDF and to speak to victims. The IFFC had no hesitation in finding that Israel had committed war crimes and crimes against humanity in Operation Cast Lead. It considered the question of genocide, as on the face of it, genocide appeared to have been committed.
But we found that the purpose of the offensive was collective punishment and that Israel lacked the special intent to destroy a people required for the crime of genocide.
Other investigations conducted by Human Rights Watch, Amnesty International, Physicians for Human Rights, B’Tselem, the Martin Commission appointed by the UN Secretary-General to investigate IDF attacks on UN premises in Gaza, and , above all, the Goldstone Mission appointed by the Human Rights Council , have all reached similar conclusions. Israel has not seriously challenged the substance of any of these reports. Instead it has criticized the messengers and the Human Rights Council. Most recently it has suggested changing the laws of war to allow Israel to commit crimes in the name of the so-called war against terror. This seems to be a clear indication that Israel admits that it did commit crimes in Gaza ! The evidence is abundantly clear: Israel committed serious violations of international humanitarian law and human rights law in the course of Operation Cast Lead; and its political and military leaders committed war crimes and crimes against humanity in the Operation.
How does one categorize Israel?
In the first place, its denial of the right of self-determination of the Palestinian people , its exploitation of Palestinian resources (particularly water), its subjugation of the Palestinian people and its settlement practices and policies require that it be seen as a colonial state in a world which has outlawed colonialism. Secondly, as a study conducted by the South African Human Sciences Research Council (about which Professor Iain Scobbie will speak) convincingly shows, Israel’s discriminatory and repressive practices fall within the prohibitions contained in the 1973 Convention on the Prohibition and Suppression of the Crime of Apartheid and resemble, but go beyond, apartheid South Africa. Thirdly, Israel is a state with a criminal record. The International Law Commission in its Draft Articles on the Responsibility of States for Internationally Wrongful Acts of 2001 refrained from dealing with question of international crimes with the result that the notion of state criminal responsibility is uncertain. But how does one describe a state that practises colonialism and apartheid and is guilty of serious war crimes and crimes against humanity. Surely it must be seen as a criminal state?
II. The Response of the International Community with Special Reference to the West
Time does not permit me to examine the practice of the entire international community to Israel’s conduct. The developing world is united in its hostility to Israel, as is reflected in voting on Israel in the Human Rights Council. But this is not a high priority and most countries of Asia, Africa and Latin America are unwilling to risk the advantages of good relations with the West by espousing the Palestinian cause too vigorously. I do not sufficiently understand the politics of the Arab world to pronounce on the Arab response. Suffice it to say that while Arabs on the street are desperately concerned about Israel’s actions , this mood is not reflected in government actions. Clearly Arab states could do more, much more, to help Palestinians both politically and materially. One suspects that many leaders are unwilling to risk their relationship with Washington for the sake of the Palestinians.
To aggravate matters, the Palestinians provide no leadership. The division between Fatah and Hamas and the failure of the Palestinian Authority to give a coherent lead, as crudely illustrated by Abbas’s recent performance over the Goldstone Mission Report, make it difficult for Arab states to know what Palestinians want. In these circumstances I shall focus on the response of the West.
The West, and particularly Western Europe, is acutely aware of the sufferings of the Palestinian people and the injustices of the situation. European missions in Ramallah and East Jerusalem report accurately to their governments on the situation as do many European-based NGOs. These governments show their concern by funding humanitarian projects in Palestine on a large scale. European public opinion is also largely sympathetic to the Palestinian cause and support NGOs working on humanitarian programmes in the region. Without this assistance Palestine would not survive. But it is at the political level, in the United Nations, particularly the Quartet, Security Council, General Assembly and Human Rights Council, that their performance must be judged.
Ultimately the political policies of the West towards Israel are determined by Washington, and the policies of Washington are determined by the Israel lobby, comprising both American Jewish organizations (notably AIPAC and the Anti-Defamation League) and Christian evangelicals. The European Union and most European states follow Washington’s lead blindly. Feelings of Holocaust guilt probably play a role in European decision making, but essentially Europe follows the United States.
The West is determined to avoid the kind of show- down that it had in the case of South Africa with Israel. In the Security Council, the United States uses its veto to protect Israel, with or without the assistance of France and Britain. In the Quartet established informally by the Security Council to promote the peace process in the Middle East, comprising the UN, the US, EU and Russian Federation, Washington takes the lead and ensures that no strong action is taken against Israel. This starkly illustrated by the attitude of the Quartet towards the Wall Opinion. The UN, EU and Russian Federation all gave their approval to the Court’s Opinion in the General Assembly in 2004, but the Quartet has failed to even mention the Wall Opinion in its regular three monthly statements let alone take action to persuade or compel Israel to comply with its findings. The reason for this is clear. The United States has consistently opposed the Opinion and is determined not to give effect to it. The UN , led by a Secretary-General unable to stand up to Washington, the EU and the Russian Federation are unwilling to challenge Washington, despite any commitment they may have to the Rule of Law and human rights.
Few believe that the Goldstone Mission report will be approved by the Security Council, despite its approval by the Human Rights Council. The United States, France and UK have already indicated their opposition to the Report and the Russian Federation and China have announced that they too will oppose any such move. In short Israel can probably count on three vetoes and two abstentions on the part of the Permanent Five! The General Assembly may make pronouncements on the subject but it has no power to refer the Goldstone report to the International Criminal Court and although, in theory, it could recommend sanctions of the kind recommended against apartheid South Africa, it is unlikely to do so. The Prosecutor of the International Criminal Court could himself initiate investigations into crimes committed in Gaza in response to the request from the Palestinian Authority under Article 12(3) of the Rome Statute, but it will take an act of real courage for him to do so in the face of the West’s determination to protect Israel.
III. The Consequences of the West’s Failure to Act against Israel
No immediate consequences outside Palestine will follow from the West’s failure to take action against Israel. The situation in Palestine itself will continue as it does today. The Quartet will continue to promote its defunct Road Map, which means appealing to Israel to stop building settlements and to behave well, and to Palestine to take tougher action against “terrorists”, without any threat of sanction. The Security Council will continue to debate the issue without threat of sanction. This will allow Israel to increase its settler population in the West Bank, intensify its stranglehold on the Jordan Valley, complete the “Judaization” of Jerusalem, finish construction of the Wall and its annexation of some thirteen per cent of Palestinian land, and maintain its blockade of Gaza, supported by regular military incursions.
The long term consequences are more serious. If Israel is allowed to proceed as it is at present, a Two-State solution will become impossible and the West will have to confront the only viable alternative: a Single State with a Palestinian majority. Then it will have to decide whether to support an apartheid state solution in which the Jewish minority has power over a Palestinian majority or to insist on majority rule in a democratic state. While this process is underway public opinion in Arab states will intensify and ”moderate” Arab governments will be replaced by more radical regimes. Relations between the West and the Moslem world will further deteriorate as a result of the West’s perceived support for Israel. And human rights will lose credibility as a result of the West’s continued protection of Israel and it failure to hold Israel accountable for its actions. Already the double standard displayed by the West in its protection of Israel has had consequences: the developing world refuses to police its own human rights violators in the face of the West determination to shield Israel from criticism for its human rights violations. This, essentially, is what is happening in the Human Rights Council: the developing world uses the Council as a vehicle to condemn Israel; and protects its own human rights offenders from scrutiny because of the West’s protection of Israel.
But the West appears to be undeterred by these consequences. For it, protection of the Jewish state is paramount whatever the cost. The Two-State solution, improved relations with the Moslem world and the universality of human rights are all sacrificial lambs that may be slaughtered and offered on the alter of appeasement of Israel.
* John Dugard is a South-African professor of international law. He has served as Judge ad hoc on the International Court of Justice and as a Special Rapporteur for both the former United Nations Commission on Human Rights and the International Law Commission
This paper was originally presented at al-Zaytouna conference “Israel & the International Law” in 2009. We, in al-Zaytouna Centre, found this paper is still of importance and interest to researchers and scholars, who are following the situation in Gaza Strip.
Al-Zaytouna Centre for Studies and Consultations
Last Update: 5/8/2014