A live online talk given on 5 January 2021.
Ardi Imseis:
Thank you.
I have been requested to address the issue of why now is the time for the United Kingdom to recognize the State of Palestine.
My remarks will be divided into three parts: First, I will briefly recount the prevailing political situation in Israel and the occupied Palestinian territory (OPT). Regrettably, this situation is incoherent in so far as the international community erroneously pins the emergence of a free and independent Palestine on negotiation, even as there exists no possibility of a good faith negotiated settlement consistent with international law on the horizon. Second, I will outline why the State of Palestine now qualifies as a State under international law. The juridical status of Palestine as a State is a subject that has been met with controversy in a variety of quarters, but one that doesn’t vitiate the fact that it is now an objective legal reality that must be reckoned with. Third, I will demonstrate why recognition of the State of Palestine is more than symbolic and has practical effects that can help advance a two-state peace at a time in which failure to act decisively will render such a prospect an impossibility.
There seem to me to be three factors that capture the prevailing situation, all of which mitigate in favour of immediate recognition of the State of Palestine if the goal of a two-state settlement is to be saved.
The first is that there is presently no Israeli partner with whom to negotiate the end of Palestine’s occupation in accordance with international law. Would that this were merely a rhetorical claim of the sort often cruelly directed toward the captive Palestinians, I would be happy to be proved wrong. Based on the public record however, including as established by the United Nations, the one constant in Israel’s 53-year “temporary” occupation is that it remains committed to a two-fold objective: namely, the illegal colonization of the OPT on the one hand, coupled with the simultaneous frustration of the emergence of a fully sovereign and independent Palestinian State in that territory on the other.[1] Since 1993 – in violation of the Oslo proviso that nothing be done by either party to prejudge final status negotiations – the Israeli settler population in the OPT has over trebled, with the Israeli Prime Minister himself putting the number of settlers at 650,000 in 2011.[2] This means that at least 23 percent of the population of the West Bank, including East Jerusalem, are Israeli settlers,[3] a number that is certain to expand exponentially given the settler growth rate in the OPT dwarfs that of the yearly average in Israel.[4] Once believed to reside on the political fringe, settlers now include members of every branch of the Israeli government, including the cabinet, the judiciary (including the supreme court), the legislature and the military. Indeed, reflective of the rightward shift in populist led governments the world over, the settler movement is now the most important political block in Israeli politics, and by some distance. If that weren’t enough, some 16 years after being condemned by the International Court of Justice (ICJ) as “contrary to international law” and “tantamount to de facto annexation” for consolidating the illegal settlements, Israel’s wall and associated regime in the OPT continues to expand with devastating impact on Palestinian geographic, economic, and political space, now fragmented into hundreds of disconnected cantons.[5] Unsurprisingly, after over a half-century of openly pursuing its colonization of the OPT, Israel’s settlement policy has introduced a system of government that is systematically engaged in racial discrimination; a state of affairs described by the UN Committee on the Elimination of Racial Discrimination as a policy of “de facto segregation” between settlers and Palestinians in the OPT, bolstered by “two entirely separate legal systems”, and “the hermetic character of the separation of the two groups…concretized by…a complex combination of movement restrictions that only impacts the Palestinian population”.[6] As noted by none other an authority than Archbishop Desmond Tutu, what we have in occupied Palestine today is a situation of full-fledged apartheid.[7]
For the dreamers among us who continue to hope, despite this historical record, that Israel seeks a negotiated peace leading to the establishment of an independent and sovereign Palestinian state alongside it, it bears recalling that Tel Aviv has never formally agreed to the establishment of any such state in the OPT. In return for PLO recognition of Israel and its right ‘to exist in peace and security’ in 1993, Israel has only ever recognized ‘the PLO as the representative of the Palestinian people’.[8] And while recognition of a people perforce implies recognition of its right to self-determination, at best Israel has only ever adopted an emaciated view of the ‘sovereignty’ it would allow the Palestinians, if at all. This Palestinian ‘state’ would be deprived of a military, control over its air space, territorial sea, borders, the Jordan valley, and territorial contiguity.[9] And that is positive side of things. Most importantly, the official platform of the ruling Israeli Likud party continues to reject the establishment of a Palestinian state west of the Jordan river,[10] and Israel’s current Prime Minister, Benjamin Netanyahu, was elected in 2009 on a promise to block the establishment of a Palestinian state.[11] This was reflected in a series of 2017 statements by Netanyahu that no settlement will be uprooted in the West Bank, and that Israel will remain in the territory ‘forever’.[12] These views are shared widely among the Israeli governing elite and have been formally incorporated into the now infamous Trump plan.[13]
The second factor that marks the prevailing situation is the near total inability of the Palestinian leadership to offer a defence against the daily abuse of its people, their land and their rights, in material terms. While the Oslo framework provided some hope that a different future might have transpired by now, the failure to conclude good-faith final status negotiations in 1999 on the basis of international law – by which is meant a complete Israeli withdrawal to the 1967 lines, a shared Jerusalem, a just resolution of the Palestine refugee problem and mutual security guarantees – coupled with the prolongation, effectively by fiat, of what was originally intended to be a five-year interim Palestinian Authority, have only helped sow the inevitable seeds of internal dissent. We have now witnessed over a decade of internecine conflict between Fatah and Hamas which has created a bitterness at every level of the Palestinian polity; and this will be hard, though not impossible, to overcome. With the sovereignty of the Palestinian people indelibly interrupted by a bad-faith and unencumbered occupying Power, enfeebled Palestinian political elites have become consumed with vying for what little scraps have been left them, all the while having to accept their virtually complete subjugation, in material terms, to the external forces holding them down.
The third factor that that marks the prevailing situation is the glaring inability or unwillingness of members of the international community to introduce decisive and practical measures necessary for resetting the conditions for peace between Israel and Palestine consistent with international law. Foremost among these is the need for third states to effectively uphold and protect the accepted international law-based terms of reference underpinning the two-state solution. At bottom, these are: (1) the inadmissibility of the acquisition of territory through threat or use of force; (2) the obligation erga omnes to respect the right of peoples to self-determination; and (3) the requirement that human rights – including of refugees – be respected in any agreement fashioned between the parties. To be sure, much lip service has been paid by third states for the need of the parties to respect these international legal parameters. But absent a willingness by Israel to actually conform to its obligations under international law, and in view of the inability of the Palestinian side to materially compel that result, it necessarily falls to members of the international community to do more in practical terms. This isn’t an unreasonable ask. On the contrary, doing so would merely require third states to abide by their own independent international legal obligations to respect and to ensure respect for international humanitarian law and international human rights law. Instead, third states – including the UK – uniformly hold that the only way to end the occupation of the OPT and allow for a sovereign and independent state of Palestine to emerge is through bilateral negotiations between the parties. It should be readily apparent to all that maintaining what I have called the ‘negotiations condition’ effectively renders the realization of Palestinian self-determination impossible, given that it would be wholly dependent on the non-existent will of an occupying Power operating manifestly in bad faith and publicly vowing to continue to do so without let or hindrance. At any rate, as I have elsewhere argued, because Israel’s occupation is illegal the occupying Power is bound to unilaterally end it forthwith and unconditionally in line with the law of state responsibility. In short, the end of the occupation, ergo the emergence of an independent Palestinian state, cannot legally be made contingent on negotiation.
The cumulative effect of these three factors means that unless decisive and meaningful action is taken now, the two-state framework for the resolution of the question of Palestine will quite possibly forever be lost. In its place will be reified a permanent apartheid reality in which there is no logical reason – judging again by the historical record – to presuppose that enough pressure could ever be brought to bear on Israel to alter course. For the Israelis, under such a scenario, the plea of non-intervention in the internal affairs of state will become an effective rallying cry, the conquest of the whole of mandate Palestine having finally been secured. Thus the imperative of immediate recognition of the State of Palestine.
Before I address what practical impact recognition of the State of Palestine can have in helping the parties arrive at a durable peace in line with international law, it would be useful to outline the preliminary question of why Palestine today qualifies as a State under international law.
There are two prevailing theories under international law on whether an entity may qualify for statehood.
The constitutive theory holds that a State exists only if it is recognized as such by other States. Palestine is today recognized by 139 States, representing a large majority of States in the world (there are 193 Member States of the UN).
The declarative theory holds that for a State to exist four objective criteria must be met as codified in the 1933 Montevideo Convention on the Rights and Duties of States. The entity must have: “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”[14] Because this theory is the one that is followed most closely in UN admissions practice, one prerequisite of which is that only states may be members, this practice should serve as the normative standard of relevance in considering whether to recognize Palestine.
Most importantly, the Montevideo criteria have historically been interpreted in a liberal, flexible and permissive manner in UN admissions practice.
Thus, in respect of the population criterion, UN admissions practice indicates that there is no minimum or maximum required, as demonstrated by the existence of the so-called microstates, such as Monaco and Lichtenstein. Likewise there is no minimum tenure or homogeneity of the population that is required, as demonstrated by states such as Australia, Canada, New Zealand, South Africa, and the US.
Applying this to Palestine, it is clear that it possesses a permanent population of at least 4.5 million people that has been rooted in the land for millennia. Palestine therefore satisfies the population criterion of Montvideo.
As for the defined territorycriterion, UN admissions practice likewise demonstrates that there is no minimum requirement of the size a territory must be. The previously mentioned microstates are good evidence of this. Nor is there a need for borders to be precise; the best example of this is ironically Israel, whose borders are still not settled despite itself being a state. The test is so flexibly applied that even competing territorial claims have been found not to be relevant. Thus, for example, neither Iraq’s claims on Kuwait, nor Morocco’s on Mauritania have been enough to vitiate Kuwaiti or Mauritanian statehood. To quote the ICJ in North Sea Continental Shelf: “[t]here is…no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not.”[15]
Applying this to Palestine, it is clear that it has sufficiently defined territory as per UN practice on the OPT. The borders of what is today the OPT were originally set by UN mediated armistice negotiations in 1949,[16] and since 1988 have been accepted within UN, including by the UK, as delimiting the territorial unit within which the Palestinian people are entitled to exercise their right to self-determination to the exclusion of all others.[17] Although the borders still need to be finalized through some form of peace negotiation, the fact that they are unsettled does not render them insufficiently clear under the Montevideo test.
Moving on to theGovernmentcriterion, UN admissions practice demonstrates this has traditionally been bound up with notions of effectiveness and independence, although neither have been strictly applied. Thus, for example, the Congo was admitted to the UN in 1960 at a time when it was undergoing a civil war and when government was split between two warring parties. Likewise Rwanda and Burundi were both admitted to the UN in 1962 when Belgium, their colonial power, remained in the country post-independence. Finally, each of India, Belorussia, Ukraine, and the Philippines were all founding members of UN despite being dependent territories in 1945.
Applying this to Palestine, it is of note that its governmental functions have been deemed sufficient for the functioning of a State according to World Bank, the IMF and the AHLC.[18] Palestine, at least formally, boasts a constitutional parliamentary democratic system, with executive, legislative and judicial branches of government.[19] Its ministries cover education, finance, foreign affairs, health, interior, justice, labour, planning, and social affairs, among other portfolios.[20] Its civil service now numbers in the tens of thousands, and includes security and police services. Importantly, split governmental control over the OPT does not mean there is no effective government sufficient under the Montevideo test. All this to say, that while the split between Fatah and Hamas goes to internal domestic legitimacy, based on UN admissions practice it is not enough to vitiate a characterization of Palestine’s government as sufficiently “effective” under Montevideo. In this regard, it is important to refrain from confusing recognition of government with recognition of state. Finally, the fact of Israel’s occupation impeding independent government is not a factor that can be used to Palestine’s detriment. This is because as an occupying Power, Israel has no legitimate international legal claim to sovereignty over any portion of the OPT. Ex injuria jus non oritur (illegal acts do not give rise to legal rights).
Finally, as for the foreign relations criterion, UN admissions practice indicates that this does not have to be exclusively performed by the State in question. Thus, for example, the foreign relations of original Member States Belorussia and Ukraine were effectively controlled by the Soviet Union in 1945. Likewise, Monaco’s foreign relations are effectively governed by France, and the foreign policies of the Federated States of Micronesia and the Marshall Islands are directed by the US.
Applying this to Palestine, it is clear that far from delegating it to others, Palestine’sforeign relations have always been conducted by the Palestine Liberation Organization, as affirmed by decades of UN practice going back to 1974.[21] Indeed, although Oslo stated that the Palestinian Authority did not have “powers and responsibilities in the sphere of foreign relations”, it also expressly provided that those powers would be conducted by the PLO on the PA’s behalf.[22] It is to be recalled that since 1988, the designation “Palestine” has been used in place of the PLO at the UN. Today Palestine is a non-Member Observer State of the UN and is recognized by 139 States.
So what are the practical implications of recognition of the State of Palestine? The first place to begin is to note that recognition, as such, is a political act, not a legal one. As a result, it is easy to hold the view that recognition as an act offers little more than symbolic value. With respect, this approach would be mistaken.
Once political prerogatives are exercised and an entity is recognized as a state, concrete legal consequences flow on both the domestic and international planes. I shall take each in turn.
On the domestic plane, recognition of a foreign state triggers the application of a host of legal rights and obligations that thereafter govern the new state-to-state relationship. These most commonly include mutual extension of foreign sovereign immunities. They also include exchange of diplomatic envoys, who benefit from a number of privileges and immunities in support of their functions in the receiving state. Diplomatic functions of course lead to all manner of cooperation in a wide variety of subject areas deemed to be mutually beneficial, including political, cultural, economic, security and scientific, to name but a few.
Perhaps more importantly, on the international plane, statehood bolsters the application of a number of international legal principles that, by definition, can only apply to states and which are therefore the bedrock of the modern international legal order. The first among these is the principle of the sovereign equality of states, with its corollaries that the territorial integrity and political independence of the state is inviolable, and that its internal affairs are not to be interfered with save in very limited circumstances allowed under the UN Charter. While it is true that the OPT already enjoys a certain level of international legal protection from sovereignty claims by the occupying Power, this protection derives from the discreet negative proscriptions against acquisition of territory through war. Recognition of Palestine as a State will only bolster the level of protection the OPT already enjoys as an occupied territory by affirming the positive right of Palestine, as an occupied State, to enjoy the right of non-interference in its domestic affairs, in furtherance of its right to territorial integrity and political independence. Because occupation is meant to be temporary, these higher order norms introduced by recognition of Palestine statehood will help the international community argue that Israel’s continued presence in it is in and of itself illegal. This will, in turn, make it more difficult for third states to extend legitimacy to Israeli actions in the OPT that are counter-productive to peace and which, although already illegal, are often presented as residing in a grey zone. One concrete example of this is the granting of preferential access to settlement products in markets of third states, with concern limited to product labelling as opposed whether those products should enjoy privileged access at all. Such policies would not survive scrutiny – or at least not as easily – if the higher order framework of state to state relations was in place through recognition of the State of Palestine.
Just as important, statehood bolsters the ability of the recognized state to engage in international activities that can help it seek redress for violations of it people’s rights and at the very least serve as a deterrent to those who would continue such violations thereby disrupting the prospects for peace. Membership in international organizations and multilateral treaties are the obvious examples of this. Since 29 November 2012 Palestine has acceded to over 40 multilateral treaties, including the major international human rights,[23] humanitarian law,[24] and criminal law conventions,[25] as well as treaties of more general purpose.[26] Likewise, Palestine has become a member of a number of international organizations, including INTERPOL and the International Criminal Court.[27] Palestine also has also brought proceedings in a case currently pending before the ICJ.
The importance of recognition of Palestine’s statehood is underscored by the current proceedings at both the ICC and the ICJ. These judicial bodies are only open to states. Their object and purpose is broadly aimed at upholding the international rule of law, one criminal and the other general. And although Palestine has properly filed cases in both of these judicial fora, claims have been made by a number of interlocutors that they have no right to do so on the basis that Palestine is not a state. In my respectful view, these claims are without merit and have been made with the sole aim not only of limiting options available for Palestine to seek access to justice, but also for it to leverage such options to encourage a positive change of behaviour in the policies of the occupying Power leading to conditions more amenable to peace. The best evidence of this is the great expenditure of effort the occupying Power has deployed to block Palestine’s access to these judicial fora. Pacific means of dispute settlement is a foundational principle of the UN Charter system for a reason. Recognition of the state of Palestine can only help bolster efforts now being made in furtherance of this end.
It is appropriate to conclude by recalling the words of Dame Karen Pierce, the former UK Permanent Representative to the UN. In April 2019, she stated the following before the UN Security Council: “Like other Governments, the United Kingdom continues to encourage a just resolution to the Israeli-Palestinian conflict, in line with international law and the relevant Security Council resolutions. Our understanding, shared by most Council members, continues to be that sustainable peace requires a safe and secure Israel, living alongside a viable and sovereign Palestinian State, based on the 1967 borders. […] Just as we fully support and are proud of our role in the creation of the modern State of Israel as a Jewish homeland, so we fully support the objective of a viable and sovereign Palestinian State. There are two halves of the Balfour Declaration, the second half of which has not been fulfilled. […] To that extent, it remains unfinished business.” [28]
I have today attempted to explain how this unfinished business of Her Majesty’s Government can be fulfilled, at least in part, by extending UK recognition to the State of Palestine. From a legal perspective, such an act would add to the growing majority of the international community who have already extended recognition to Palestine. Further, it would politically bolster the encouraging resort to various diplomatic and judicial means of dispute resolution employed by the Palestinians, all of which is aimed at forcing a shift in the policies of the occupying Power where the international community has thus far failed. On this rationale alone, the case for recognition of Palestine seems to be obvious to me, when one considers previous avenues explored. If a two-state solution is the declared goal of the international community, and because final status issues have never included the statehood of Palestine as such, it is high time for third countries, including the UK, to put their money with their mouth is on recognition of Palestine.
Something else should be obvious, however. Recognition is not an end in and of itself; it would surely not in itself bring peace between Israel and Palestine. It would, however, serve as a holding operation of sorts. As I have noted, the historical record is very clear: any and all measures must be taken to halt the ongoing colonization by the occupying Power of the OPT. If this colonization continues unencumbered, it will end any notion of the two-state vision of which Dame Pierce so longingly spoke. In its place will be crystalized a single apartheid state in which continued conflict and bloodshed will almost certainly prevail. Having done away with the last vestiges of collective Palestinian national rights – including to peoplehood, self-determination, sovereignty and political independence – the occupying Power will be left unchecked to pursue its goal of conquering the whole of Mandate Palestine once and for all. In this reality, in which the indigenous Palestinians will be subsumed as an “internal affair” in Israel and therefore effectively beyond the reach of the international community, it will be even more difficult than it is now for third states to compel Israel to respect its international legal obligations and to arrive at peaceful resolution of the conflict in line with international law.
With that, I would like to say, thank you. That concludes my remarks. I would like to invite questions from the audience. Thank you.
Diana Safieh:
Thank you, Ardi. That was so fascinating. And obviously with your background, working with the UN on this issue, there really isn’t a better person to talk to us about this. The first question comes from one of your fellow Canadians. His name is Michael Dan. He’s a former neurosurgeon who created the Paloma Foundation, which works with the marginalised people in the Toronto area. And he is a friend of the Balfour Project. He says, ‘given that it’s been over eight decades since the international community first proposed a two-state solution for Palestine, and not withstanding three major attempts to bring one about, it still hasn’t materialised. Is there any sort of one state solution that you think the Palestinian people would or should be willing to accept? Incidentally, I would ask the same question to the Jewish people who at present makeup only 50% of the people living between the river and the sea.
Ardi:
Thank you very much for that question. That’s an extremely important question. It’s on the minds clearly of many onlookers, students and those concerned with Israel/Palestine. Because the question focuses on what the Palestinians would accept vis a vis a one state solution – incidentally, I can’t speak on behalf of the whole of the Palestinian people; I only speak on behalf of myself – it’s important to recall that the original position of the indigenous Arab people of Palestine was that Palestine as a whole in 1947, when it was before the United Nations General Assembly, should not be partitioned against the express wishes of the majority of its population. Then two thirds of the majority, the Palestinian Arab population argued for independence of the whole of Palestine in one single territorial unit, including the Jewish population who lived there; they believed that a single, democratic state should exist.
And they struggled for this end. The PLO did so for decades and struggled against the grain. And so difficult was that struggle that by 1988, when the PLO took a strategic decision to engage in what it called the historic compromise, if you like, to recognise Israel in 78% of mandate Palestine in favour of the establishment of a Palestinian state in the remaining 22%, being the West Bank, East Jerusalem and Gaza Strip, that doors began to open for the Palestinians, that the international community began to press ostensibly for a two-state solution and so forth. In view of the inability of the parties to reach a two-state solution, largely in my respectful view, through the violations of international law undertaken by the occupying power over its 53 year “temporary” occupation – it’s very clearly intending on remaining in the territory and asserting its sovereignty there – people are now talking about a one-state reality, and I don’t think you would have a hard time convincing Palestinians of the usefulness of that and the idealism behind it. I think the idea of democracy – one person, one vote – is a very important thing and useful. I think the real problem, the sticking point, would be for the Zionist colleagues on the other side, who still view as important the need for a Jewish state. I paraphrase Benny Morris here in his 1948 and After (Oxford University Press): the fundamental question for the Zionist movement is how to establish and maintain a Jewish state in a place full of non-Jews? You necessarily have to deal with that demographic reality, which is why we have the Palestinian refugee problem, why the ethnic cleansing [of the Palestinians] took place in 1947 and so forth.
So the only way you’ll have a one-state solution where people are actually free – Jew, Palestinian, Christian, Muslim, et cetera – are if you relinquish any notion of exclusivity of one over the other in that land. The burden of that question falls definitively on the Israeli side, not the Palestinian side. They [i.e. the Palestinians] have long desired a democratic state in the country. And in fact, the two-state solution was/is their attempt, in my reading, to establish some modicum of rights in a world that has been so horribly cruel in respect of their situation.
Diana:
Thanks for that. The next question is an interesting one from Heather Formaini. ‘The question which I feel needs to be addressed is whether the Balfour Declaration can be challenged legally retrospectively.’
Ardi:
I’ve had that question put to me before. You begin with the first question, was the Balfour Declaration a legal instrument as such, see Thomas and Sally Mallison on that question. They did wonderful work in the 1980s on it. There are debates about that. What is I think more important and really gives one a critique or invites a critique of public international law as a tool of subjugation, and I write about this in a book that I’m doing now on the United Nations and the question of Palestine, is the fact that the terms of the Balfour Declaration were actually incorporated by the League of Nations into an international instrument, if you like, the mandate for Palestine. The moment that that happened in 1922, 23 is the moment that legal rights are given to a settler colonial movement, the Zionist movement, in international law, including the right to settle the territory, right to establish the Jewish homeland and eventually a state [in Palestine], to the detriment of the indigenous people of Palestine, being the Palestinian Arabs.
Can you challenge it? You might be able to do so academically. Can you do so effectively and legally today? That would all turn on what relevant jurisdiction you try and challenge it under; British jurisdiction, Palestinian jurisdiction. I think it would be very, very difficult to do so.
Diana:
Thanks again for that. From Peter Buckley, ‘how do you see the new US administration affecting the situation?’
Ardi:
Good question. On everybody’s minds. The pendulum has swung so far to the right with Trump’s moves to, among other things, recognise the legality of Israel’s settlements in the occupied Palestinian territory, recognise Israeli sovereignty in Jerusalem, recognise Israeli sovereignty in occupied Syria (i.e. the Golan Heights), and to attack UNRWA, in particular the very existence of Palestine refugees as a category in law, the pendulum is swung so far to the right by the Trump administration, that I do think that the Biden administration in the best of times is going to have a hard time swinging it back somewhere in the centre. From discussions that I’ve had with members of the State Department, I understand that the United States will likely begin funding UNRWA again, to what extent we do not know, we don’t know if it will be a return to previous funding [levels] of UNRWA, but it will likely happen.
But Biden will not be able to, say, remove the United States decision on Jerusalem and may not be willing to deal with the settlement issue at State. Looking historically, let’s recall Joe Biden is an avowed friend and a supporter of Israel. The historical record there is very, very clear on that. Israel is a bipartisan issue in the United States. So the short answer to the question is, at best, it’ll be a return to an Obama-type era plus a bit more to the right in view of what Trump has done. So the US will not be able in any real sense to perform an honest broker role. And he won’t even attempt to try, I think, openly to do so. Unfortunately that’s where we are with US.
Diana:
Right. Well, that’s quite depressing, isn’t it? I’ve got a question from Sir Vincent Fean who as you all know, is our chair of the Balfour Project trustees. He asks, ‘where does Ardi think the Palestinian call for the ICC to examine alleged Israeli breaches of international law will go? Is lawfare a fair description of this? And is it valid?’
Ardi:
That’s two questions. I’ll answer the first, where do I think the ICC matter will go? To bring the listeners up to speed, there are generally four stages in any ICC matter. You begin with a preliminary examination by the office of the prosecutor. It then moves to an investigation by the office of the prosecutor. And then from there charges are laid commencing a trial, [and then] possibly an appeal, a fourth level.
In December, 2019, the prosecutor of the International Criminal Court completed her preliminary examination indicating that in her view, there was enough evidence to launch a formal investigation. And before she launched that formal investigation, she sought a ruling of the pre-trial chamber of the court for an answer to a discrete question on the scope of the territorial application of the Rome Statute, the governing statute of the International Criminal Court. She basically believes that the scope of the territorial application of this treaty, and therefore the scope of her investigation, territorially speaking, is the occupied Palestinian territory. She anticipates that in the future, during trial, for instance, that would be challenged by interlocutors, and so she has taken a decision to get ahead of the game and seek a ruling from the pre-trial chamber on that. The pre-trial chamber has yet to rule on the matter. I’ve written on the matter [links can be found above].
I tend not to sort of bet on how courts are going to rule, it’s very difficult, but on balance, I think it’s logical to believe that the court will rule that the territorial scope is the occupied Palestinian territory. And then that will open the way for an investigation. Mind you, the court does not need to approve the OTP opening an investigation for a number of reasons. She’s free to do that, the prosecutor.
You mentioned lawfare. I actually don’t like that term, it’s a rather balmy term. It is the use of law. Historically, law has been used by all manner of different groups, domestically and internationally, to seek redress for wrongs. To call it lawfare is to suggest that somehow the legitimacy of the use of law as a means to seek redress for wrongs is somehow questioned and questionable. You either have a good case or you don’t. So I see a problem at all with Palestine or any other party using law and legal remedies and redress, if they can make their case.
Diana:
Thanks for that. So we’ve got a question from Maggie Foyer. I think that it came in when you were talking about criteria for statehood and you were talking about having legal structures and government and security and so forth. She asks, ‘thank you for setting out the legal situation with such clarity. Sadly, the reality on the ground in the OPT is a total breakdown of law with settlers rampaging at will. What can be done to protect Palestinian civilians?’
Ardi:
A good question, and one that has long been on many of our radars. Well, first and foremost, under international law, specifically the law of belligerent occupation, the occupying power, in this case Israel, has an obligation to protect the protected population. That is a term of art (the “protected population”, see Article 4 of the Fourth Geneva Convention), and the protected population [in this case] is the Palestinian civilian population of the OPT. And despite the obligation to protect, the occupying power has, quite the opposite, undertaken a series of policy measures over the course of 53 years to violate the rights of this population. So there’s clearly an unwillingness on the part of the party who has the primary obligation, the occupying power, to protect. The Palestinian side, the local side, has very little ability to protect its population from the ravages of the violations being wrought on it by the occupying power. To be sure, the local Palestinian authority sometimes itself is engaged in human rights violations against the Palestinian people; freedom of speech, freedom of association, all kinds of human rights problems have arisen in occupied Palestine, or at least the portions of it that are under the authority of the Palestinian Authority, which again, affirms the importance of the fact that Palestine acceded to the human rights treaties, because that means they care ostensibly so to be a responsible member of the international community and ensure their own obligations under human rights law. But in the absence of a willingness and ability of the Israeli side and the local Palestinian side to protect Palestinian civilians from the ravages and the violations of their rights, it must fall necessarily to third states. And so the rest of the international community, as I said in my talk, have clear obligations under international human rights and humanitarian law to ensure respect for that law.
So they not only have the obligation to respect that law themselves, but also to ensure its respect by other parties (see article 1 of the Fourth Geneva Convention). What might some of this look like? Third states have the obligation to ensure that war crimes, crimes against humanity are prosecuted domestically. So, to the extent that a third state like the United Kingdom might invite settlement products into its territory, that actually runs completely contrary to the United Kingdom’s obligations under international humanitarian law to ensure respect for that body of law, because that body of law makes it very clear that settlements are illegal. They are a war crime under international criminal law, individual criminal responsibility can flow from the establishment of settlements. Whyever would a third state be encouraging those things? And so there are many, many ways to protect. The only question is, is there the requisite political will to press these legal buttons, if you like, in furtherance of the obligations of third states to utilize third state domestics fora? There is also international fora. We’ve talked about the ICJ, the ICC, for instance; I’ve written quite a bit on that and, for lack of time here, would refer you to that.
Diana:
So next question from Johnny Rizq, ‘what impact do you think the recognition of the state of Palestine would have on the right of return of Palestinian refugees given that many of those rights apply within Israel itself rather than the territory of the new Palestinian state?’
Ardi:
When I was a legal advisor at UNRWA for many years, we actually considered this very closely. I’m not now offering an UNRWA view, I’m offering my own view. It would have no impact whatsoever. The right of Palestine refugees to return to their homes and properties is established as a matter of customary international law and as affirmed by the General Assembly annually, as you know, in Resolution 194. The territorial scope where they may end up returning is not circumscribed by law to be limited only to the West Bank, Gaza Strip and East Jerusalem. There has been a lot of political talk around that question and fears are I think unduly raised that in the event of a Palestinian state emerging in the West Bank and Gaza Strip, including East Jerusalem, that the Palestinian right to return would only be able to be effected within that state. And therefore there would be a limitation on the legal rights of Palestine refugees to return to their original lands, their original homes, et cetera. That does not hold water at all, as a matter of international law. Again, the right to return exists as both an individual right, and a collective one. And Israel is under an obligation not to de-nationalise a population, which it did. And states may never de-nationalise populations en masse and on the basis of immutable characteristics, such as skin colour, religion, race, et cetera and not allow them to return. So I would not worry about that from a legal perspective. From a political perspective, it’s wholly another matter. And the parties of course have yet to agree a just resolution to the Palestine refugee problem. And it is not outside of the realm of the possible that the parties may agree that the right be recognised by the Israeli side morally, that compensation be paid, but that the actual physical return only be allowed to a truncated Palestinian state in the West Bank and Gaza. That’s just one scenario, but it’s not the only one. And in such as case, it would not be compliant with international law. International law would not admit such a circumstance.
Diana:
Thanks for that answer. There’s a question on COVID. This is from Bettina Marx. ‘Can you comment on the obligation or not of Israel to provide the Palestinians in the occupied territory with the vaccine against COVID-19? Does the fact that there’s a Palestinian government absolved Israel from its duties as an occupier?’
Ardi:
It’s a very good question. The answer is no, it doesn’t absolve Israel from its duties as an occupying power, in this regard. I would refer you to Articles 56 and 59, if my recollection serves, of the Fourth Geneva Convention. And article 60, if again, my recollection serves. The occupying power is under an obligation to ensure public health (including against pandemics) and to facilitate relief schemes for the protected population if it is not supplied in the way that it needs to be supplied from a humanitarian perspective. This reference to relief schemes includes supply of medicines, medical aid and other such help and assistance. Article 60 makes it clear that to the extent that an occupying power engages in agreements with others to provide such support, such relief, no such agreement can absolve the occupying power of its principle responsibility in this respect.
So there’s no question that as a matter of the law, belligerent occupation as applied to Israel as an occupying power, it has an obligation to ensure that the Palestinian population of the whole of the occupied Palestinian territory receives vaccinations and in a timely way against COVID-19.
But leave aside the law. It seems to me to be monumentally stupid not to do so, just given the close proximity within which Palestinians and Israelis live, whether settlers or Israeli nationals in Israel proper, et cetera. It seems to me to be stupid just based on what we know about how COVID-19 shifts from population to population.
Diana:
So we’ve got a question from Andrew Whitley. He’s one of our trustees. He says, ‘based on your excellent presentation, I would conclude that while UK recognition of Palestine is desirable, it is unlikely to be decisive in terms of shifting the political balance between the parties, unless accompanied by a package of other concrete measures that will impact Israel’s calculations. Additionally, the UK should act in concert with other major states, especially France who is another P-5 member. Do you agree with my reasoning?’
Ardi:
It’s good to hear from you, Andrew. Thank you for the question. Not wholly. I agree with you that recognition itself is not going to fundamentally alter things on its own. That is, the recognition by one country (i.e. the UK) of another (i.e. Palestine). On the other hand, the United Kingdom is a member of the P-5. Notwithstanding the fact that its days of empire are long over, it still has political clout. There is a legitimacy there that might become contagious. That is to say, if the United Kingdom recognise the State of Palestine, it’ll make it easier for other states, other major powers to do so as well. You’ve mentioned France, but there are other states, including states in Western Europe [that would follow].
If you look at state practice on recognition of states, particularly in UN admissions practice, it often looks like a domino effect. One big country does it, and then a group of others follow. And so there is value added in recogition.
But I don’t disagree with you that recognition in and of itself is not the answer. It would necessarily and ideally need to be accompanied by a package of other measures. The sky’s the limit on what kind of measures that might look like from a diplomatic standpoint. Again, state to state relations cover all manner of sectors in human engagement. And there could be even greater mutually beneficial relations between Palestine and the United Kingdom in the event of recognition, and which do not come at a cost to the United Kingdom’s good relations with Israel.
There has been talk for instance about Palestine becoming a member of the Commonwealth, for instance. Given the historical connection of the British and Palestine and all of that. So there is all manner of different packages or different elements of a package that could go along with it.
But I wouldn’t wholly say that the UK should wait for the French and the French should wait for the UK, No. As I have said, 139 States have already recognised the State of Palestine. The time to act is now.
[1] This is in keeping with long-established Zionist plans for the OPT. Thus, in the words of the so-called ‘Drobles Plan’: ‘The best and most effective way of removing every shadow of doubt about our intention to hold on to Judea and Samaria [viz. the OPT] forever is by speeding up the settlement momentum in these territories. The purpose of settling the areas between and around the centers occupied by the minorities [viz. the Palestinian majority] is to reduce to the minimum the danger of an additional Arab state being established in these territories. Being cut off by Jewish settlements, the minority population will find it difficult to form a territorial and political continuity.’ Drobles, Master Plan for the Development of Settlement in Judea and Samaria, as quoted in Matar, “Exploitation of Land and Water Resources for Jewish Colonies in the Occupied Territories”, in E. Playfair, ed, International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (1992) 446.
[2] Israeli Settlements in the Occupied Palestinian Territory, Including East Jerusalem, and the Occupied Syrian Golan, Report of the Secretary-General, UN Doc. A/67/375, 18 September 2012, para. 7.
[3] Ibid., para. 12.
[4] Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem, UN Doc. A/HRC/22/63, 7 February 2013, para. 28 [‘UN Fact-Finding Mission’].
[5] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports (2004), paras. 121-122 [ ‘Wall Advisory Opinion’].
[6] Ibid., para. 24. These findings were echoed by a 2012 UN Fact-Finding Mission, which decried the “[t]he legal regime of segregation” in the OPT, enabling “the creation of a privileged legal space for settlements and settlers” while violating Palestinian “rights to non-discrimination, equality before the law and equal protection of the law”. See UN Fact-Finding Mission, supra note 3, para. 49.
[7] “Desmond Tutu: Israel Guilty of Apartheid in Treatment of Palestinians”, Jerusalem Post, 10 March 2014, available at: https://www.jpost.com/diplomacy-and-politics/desmond-tutu-israel-guilty-of-apartheid-in-treatment-of-palestinians-344874.
[8] G. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (2000), 315-316.
[9] A. Le More, International Assistance to the Palestinians After Oslo: Political Guilt, Wasted Money (2008), 170. See also Horowitz, “Netanyahu Finally Speaks His Mind”, The Times of Israel, 13 July 2014, https://www.timesofisrael.com/netanyahu-finally-speaks-his-mind/, where the Israeli Prime Minister was quoted as saying ‘I think the Israeli people understand now what I always say: that there cannot be a situation, under any agreement, in which we relinquish security control of the territory west of the River Jordan’. The UN rejected the Bantustan model of ‘statehood’ resoundingly. See SC Res.402(1976) and GA Res.31/6A, 26 October 1976.
[10] Weiler, ‘The Hateful Likud Charter Calls for Destruction of Any Palestinian State’, Informed Comment, 4 August 2014, https://www.juancole.com/2014/08/charter-destruction-palestinian.html.
[11] ‘Netanyahu: No Palestinian State on My Watch’, Times of Israel, 16 March 2015, https://www.timesofisrael.com/netanyahu-no-palestinian-state-under-my-watch/.
[12] Berger, “Netanyahu Vows Never to Remove Israeli Settlements from West Bank: ‘Were Here to Stay, Forever’, Ha’aretz, 29 August 2017, https://www.haaretz.com/israel-news/1.809444. ‘Peace to Prosperity: A Vision to Improve the Lives of Palestinians and Israelis’ (January 2020), available at: https://printabletemplates.com/peace-to-prosperity/. See also: Levy, ‘Don’t Call it a Peace Plan: Ten Ways Trump Has Launched a Relentless Assault on the Very Idea of Israeli-Palestinian Peace’, The American Prospect (30 January 2020), available at: https://prospect.org/world/dont-call-it-a-peace-plan-israel-palestine-trump/.
[13] Foundation for Middle East Peace, ‘In Their Own Words: Israeli Officials on a Palestinian State’, 29 May 2015, http://fmep.org/blog/2015/05/in-their-own-words-israeli-officials-oppose-palestinian-state/.
[14] Convention on the Rights and Duties of States Adopted by the Seventh International Conference of American States, Montevideo, 26 December 1933, art. 1, 165 LNTS 19, at 25 [hereinafter “Montevideo Convention”]. Although the UN practice has consistently referred to the Montevideo criteria when assessing whether an entity is a state under international law, some scholars have questioned the validity of the criteria themselves. See, for example, Crawford, J. “Israel (1948-1949) and Palestine (1998-1999): Two Studies in the Creation of States” in Goodwin-Gill, G. & Talmon, S. eds. The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford, 2012) at 113.
[15] North Sea Continental Shelf, Judgment, ICJ Reports (1969), p. 3 at 32 [hereinafter “North Sea Continental Shelf”].
[16] Egypt-Israel, General Armistice Agreement, Rhodes, 23 February 1949, UN Doc. S/1264/Corr.1; Hashemite Jordan Kingdom – Israel, General Armistice Agreement, Rhodes, 3 April 1949, UN Doc. S/1302/Rev.1.
[17] See for instance GA Res. 72/14, 30 Nov. 2017, at para. 24 (voting record at UN Doc. A/72/PV.60 at 21; 157 to 7, 8 abstentions).
[18] Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations, UN Doc. S/2011/705, 11 November 2011, para 13.
[19] Quigley, J. The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge, 2010) at 215. See also Higgins, R. The Development of International Law Through the Political Organs of the United Nations (Oxford, 1963) at 21, where the author notes that in early practice some states exhibited a tendency to interpret the government qualification as needing to be democratic. Subsequent practice indicates that this threshold has not displaced the lower standard of effectiveness.
[20] Permanent Observer Mission of the State of Palestine to the United Nations, New York, “Government of the State of Palestine”, available at: http://palestineun.org/about-palestine/government-of-the-state-of-palestine/.
[21] See generally, GA Res. 3210(XXIX), UN Doc. A/RES/3210I(XXIX), 14 October 1974; GA Res. 3237(XXIX), UN Doc. A/RES/3237(XXIX), 22 November 1974. As part of its 1988 acknowledgement of the proclamation of the State of Palestine by the Palestine National Council, the General Assembly decided that the designation “Palestine” be used in the place of the “Palestine Liberation Organization” in the UN system. This change was done without prejudice to the observer status and functions of the PLO within the UN system. See GA Res. 43/177, UN Doc. A/RES/43/177, 15 December 1988.
[22] Interim Agreement on the West Bank and Gaza Strip, Israel-Palestine Liberation Organization, Art. IX(5), 28 September 1995, 36 I.L.M. 551, at 561.
[23] For example, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3; Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, UNTS 112; Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3; International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, 660 UNTS 195.
[24] For example, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS. 287.
[25] For example, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277; International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, 1015 UNTS 243; Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3.
[26] For example, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.
[27] Palestine’s accession to the Rome Statue is a good example of the catalytic role played by GA res. 67/19. On 22 January 2009, Palestine sought to confer jurisdiction on the ICC by lodging an article 12(3) declaration with the Registrar of the Court. In determining whether the preconditions to the exercise of jurisdiction under article 12 were met, the then Prosecutor, Luis Moreno Ocampo, affirmed that only states can confer such jurisdiction and, in his view, it was then unclear as to whether Palestine was a state for those purposes. Nevertheless, Ocampo noted that because states parties to the Rome Statute would have to deposit an instrument of accession with the Secretary-General, the latter’s role was vital. Where an applicant’s statehood is unclear, Ocampo noted that it is the practice of the Secretary-General to follow or seek the GA’s directives on the matter. Accordingly, following the passage of GA res. 67/19 in November 2012, the State of Palestine acceded to the Rome Statute on 2 January 2015, and the Secretary-General accepted its instrument of accession on 6 January 2015.
[28] Statement of Ms. Pierce (United Kingdom), UN SCOR, 74th Sess., 8517th Mtg. at 19-20, UN Doc. S/PV.8517, 29 April 2019.
Dr. Ardi Imseis is an Assistant Professor of Law, Faculty of Law, Queen’s University. He is a Member of the Group of Eminent International and Regional Experts on Yemen, a UN Human Rights Council commission of inquiry mandated to investigate violations of international human rights and humanitarian law in the civil war in Yemen. Between 2002 and 2014, he served in senior legal and policy capacities with the UN in the Middle East (UNRWA & UNHCR). He has provided expert testimony in his personal capacity before various high-level bodies, including the UN Security Council, and to members of the UK House of Lords and the French Senate. His scholarship has appeared in a wide array of international journals, including the American Journal of International Law, the European Journal of International Law, the Harvard International Law Journal, and the Oxford Journal of Legal Studies. Professor Imseis is former Editor-in-Chief of the Palestine Yearbook of International Law (Brill; 2008-2019), Social Sciences and Humanities Research Council of Canada Doctoral Fellow and Harlan Fiske Stone Scholar and Human Rights Fellow, Columbia Law School. He holds a Ph.D. (Cambridge), an LL.M. (Columbia), LL.B. (Dalhousie), and B.A. (Hons.) (Toronto).
Two of Ardi’s recent publications can be found here:
- “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967-2020” (2020) European Journal of International Law:
- “State of Exception: Critical Reflections on the Amici Curiae Observations and Other Communications of States Parties to the Rome Statute in the Palestine Situation” (2020) Journal of International Criminal Justice