Speaking at the Balfour Project online 2-day conference “Israel/Palestine: in search of the rule of law” on 25/26 May 2021.
Click here to view the other speakers at the conference.
Andrew Whitley:
Good afternoon and welcome, everyone. My name is Andrew Whitley and I am very pleased to be able to introduce today’s conference. I’m a trustee of the Balfour Project and I spent over half my working life working on this particular issue.
Yesterday, if you were fortunate enough to be among us, was really a very moving and exciting day. I think we heard a great deal of thought-provoking information from our speakers about the observance, or the lack of it, of the rule of law in Israel and Palestine. Today, we’re going to be going down more into the details of what actually is happening on the ground in the region. We’re going to be hearing first from the man who is probably the most authoritative and independent source of information on human rights in the area, and that is Professor Michael Lynk, the UN Special Rapporteur on Human Rights in the occupied territories. He will then introduce a panel of four experts, people living and working on the ground who can tell you what the situation is. And from there, we will then move on to the second half of the conference, which is going to cover Britain’s responsibility.
As you may know, the Balfour Project is an organisation that focuses on Britain’s role, its historic role, and its role today, and it looks at how we can educate the British public and advocate for the British government to take a stronger, more independent, more forceful position to be able to help try to promote equal rights and an end to occupation. So, that’s why in the second session this afternoon, we’re going to be having Lord Alderdice, appropriately enough, a veteran of the Northern Ireland peace process, a member of the Liberal Democratic Party, former Speaker of the Northern Ireland Assembly, and he is going to be leading a discussion, which will begin with Jack Straw, the former UK Foreign Secretary and former Home Secretary, and he will then introduce a panel of members of parliament who will debate the issues.
I shall come back at the end in order to read a closing declaration from the Balfour Project, and it’s a declaration which we’re issuing in our own name. The speakers and other participants are not associated with it, but it’s a call on our government to make a number of actions which we think are appropriate for them to do so given the values that they espouse that they uphold.
So, without any further ado, I’m now going to turn it over to Michael Lynk to give his presentation.
Prof Michael Lynk:
Thank you very much, Andrew, and I’m very much looking forward to the session today. I want to thank the Balfour Project, and particularly Sir Vincent Fean, for the invitation to be able to speak today.
Today, I’m going to speak on some of the leading aspects of international law as it applies to the occupation. There are a number of issues that I will address, but a number of issues I won’t address, both because of time, and because they’ve been spoken to by the many excellent speakers we either had on the project yesterday or will be speaking later today after me.
My argument today is going to be based on two points. First, this occupation is thick with laws, which Israel, the occupying power, defies. And secondly, I will be talking about what is the key missing aspect of this, very briefly on accountability, knowing that one of our subsequent panel speakers will be addressing it in a more fulsome fashion.
So, I would like to be able to introduce my slideshow for you today and take you through this, through the magic of visuals.
So, the first of many important things that I want to be able to convey today is how unequal and how asymmetrical this particular struggle is.
Militarily, Israel is a nuclear power with the strongest armed forces in the region and it has a very close military alliance with the United States, the world’s sole remaining superpower, while the Palestinians have a lightly armed police force in the West Bank and with low grade missiles in Gaza.
Economically, as you see, Israel enjoys a European style standard of living with a gross domestic product per capita that’s 12 times higher than the Palestinian standard.
Territorially, Israel is the overwhelmingly dominant political power between the Mediterranean and the Jordan River, with the Palestinians possessing only municipal-like authority in confined and scattered fragments of land that are disconnected from one another.
Diplomatically, Israel has the enduring support of the US, and to a lesser degree, the European Union, which tends to count for far more in current international relations than the large voting majorities in the UN General Assembly who back the Palestinians.
The one area where there is parity, where there is equity is demographically. Israeli Jews and Palestinian Arabs each have roughly 6.8 million people living between the Jordan and the Mediterranean, and the Palestinian population is steadily catching up, and at some point, either two years ago or two or three years from now, it’s deemed to be that their population numbers will become numerically superior to those Israeli Jews in this particular area.
This past Christmas, my brother gave me Barack Obama’s memoirs as a Christmas present and I immediately went to his section on the Israeli occupation. His rendition of the occupation is a very interesting mixture of a very standard recitation of Israel’s founding, together with some very sharp and wry acknowledgments of how the Palestinians have become the political orphans of the modern time.. And I’ve included one of his interesting observations in the panel here, where he acknowledges that the occupation by Israel is a violation of international law that is widely accepted among the nations of the world, and he talks about the awkwardness, one might say, hypocrisy, that the US often found itself in, that whenever they were willing to raise issues with respect to human rights breaches going on in Russia, or in China, or in Iran, they would frequently be met back with, “Well, what about Israel and the Palestinians?” And he said, as a result, our diplomats found themselves in an awkward position of having to defend Israel for actions that we ourselves were opposing.
And I must say the thought that came to me, as I was finishing the reading of this section of his book, is I wondered if he wouldn’t have had a stiffer spine on this issue as President, if he’d actually written his memoirs first and then read them once he became president, to have the benefit of hindsight.
So, two of the areas that I want to be able to talk to you today are about international humanitarian law and international human rights law. There are actually three areas of international public law that have a great pertinence to the Israeli/Palestinian conflict and to the Israeli occupation of Palestine, which is humanitarian law, human rights law, and international criminal law, dealing with the laws of crimes against humanity, and war crimes. I won’t speak to that last section because that goes to a very brilliant presentation given yesterday by Professor Philippe Sands.
So, when it comes to international humanitarian law, these are the laws of war, and more particularly, the laws of occupation. They are codified in several cornerstone international documents, the 1907 Hague Regulations, the 1949 Four Geneva Conventions, and the 1977 additional protocols, as well as much of what’s in those documents has now been accepted as constituting part of international customary law, which binds everybody, whether or not you’ve actually adopted any or all of the key IHL documents.
So, when we talk about occupation, and particularly with respect to Israel and Palestine, the most important single document is the Fourth of the Geneva Conventions from 1949, which offers detailed protection of civilians under occupation. And it is the International Committee of the Red Cross, which is the institutional protector and interpreter of IHL.
And in 2004, during the advisory opinion given by the International Court of Justice in The Hague, the ICJ stated, among other findings, that both international humanitarian law as well as international human rights law both apply to the conduct of the occupation, and Israel is obliged to honor both.
Now let’s turn to international human rights law. International human rights law obviously has to do with foundational human rights. So, there are areas in which international humanitarian law and international human rights law, wind up overlapping, but for our purposes, they’re meant to be thought of as two distinct bodies, both of whom, by the way, they’ll have a very common purpose in wanting to be able to protect the vulnerable in the most vulnerable of circumstances. And both international humanitarian law and international human rights law offer a range of inalienable rights upon those that they seek to wind up protecting. So, international human rights law is codified, beginning with the 1948 Universal Declaration of Human Rights, which actually, formally speaking, is not law, it is simply a declaration of the UN General Assembly. But the fact is that virtually every one of the 30 provisions in the Universal Declaration are now regarded, by those who think about this, as forming part of international law.
As well, there are the two 1966 International Covenants, one on political and civil rights, and the other on economic and social rights. Together, the 1948 Universal Declaration and the two 1966 International Covenants are thought of as being the international Bill of Rights. And building upon that, has been a series of other human rights treaties that have been adopted by the international community over the last 65 years, including international treaties on women, on race, and on persons with disabilities, among other rights.
Israel is required, as stated by the International Court of Justice, to fully respect, protect, and fulfill the human rights of the people who are under occupation. Israel has argued that human rights law does not apply to the occupied territory, indeed, as we will see in a minute, they argue that the Fourth Geneva Convention doesn’t apply either. This is a pretty lonely position in international law as virtually the entire international community accepts that both branches of law apply in full to Israel’s administration of the occupation.
Some of the foundational rights and international human rights law that wind up applying include the freedoms of expression, assembly, religion, and particularly the fundamental guarantees of equality and non discrimination. And certainly, when you read recent analysis, whether or not Israel is in compliance with the law, including the very important report released last month by Human Rights Watch, they use the lens of both humanitarian law, but in particular, international human rights law, to be able to say that Israel’s actions on the West Bank and in East Jerusalem of maintaining separate rights, separate living conditions for Israeli settlers as opposed to the Palestinians living among them on the basis of race, religion, political opinion, and equality and non discrimination amount to profound discrimination. Indeed, in the words of Human Rights Watch, it amounts to apartheid.
So, you may ask yourself, “What is the importance of law? Isn’t this just something for academics and diplomatic lawyers who want to argue among themselves at conventions, but they have very little to do with actually trying to find peace on the ground?” I’m going to come back to that argument a little bit later, actually, very quickly, in the next slide. But what I want to point out is the absolute centrality of ensuring that law is at the very center of how an occupier conducts its occupation. In particular, I want to point out that there is universal consensus with respect to the centrality of human rights law and humanitarian law in the conduct of the modern world. Virtually every country has signed on to the Four Geneva Convention. Most countries have signed on to the two 1966 International Covenants on human rights, and they have signed on to many of the subsequent human rights treaties.
Human rights and international law is now our common and universal language. In a world that’s divided by class, by race, by religion, by other divisions, the one unifying feature that we all have is the fact that we’ve created this enormous body of international public law with the values of justice and equality at the very centre of them. Everybody speaks in this common language to one another. Many don’t obey what they’ve signed up to, but that in itself has a value, and because they have signed up, they can be held to be named and to be shamed by saying, “You’re not following what you’ve agreed to on paper.” And this makes a powerful argument, in my mind, perhaps the most powerful argument to be able to challenge human rights abusers, and in this case, an abusive and acquisitive occupying power.
And the large value of wanting to ensure that there’s a rights-based approach that’s at the very centre of both the administration of the occupation and the international push to bring it to an end is that using international law would create a more level playing field between the very asymmetrical balance of power between Israel and the Palestinians.
My core argument is that it’s this very asymmetrical distribution of power that has led us to have one failed peace initiative after another, and that’s why I call my presentation today, Give Rights a Chance. If there is a rights-based approach that’s at the center of any future international efforts, that would have a far better chance of being able to succeed.
So, when I look several years ago and back and examine all of the major declarations, or agreements, or plans, or proposals that were initiated from the beginning of the Madrid-Oslo process in the early 1990s right up to the Trump Plan, released last year, the one consistent issue that you will see, the one constant theme through all of this is that international law and rights have been consistently sidelined for this entire 30 year process, beginning with the 1993 Declaration of Principles, right up and to the Trump Plan, which was released 16 months ago.
Israel, with the support of the United States, has been vigorous in wanting to ensure that any parameters or any principles or agreement sideline international human rights and international humanitarian law. Why? Because they recognise themselves, that their case is so weak with respect to their obeying of both sections of law. And indeed, if the parameters of a final peace settlement were framed entirely within the structure of international law, they would have to give up all of the gains that they think they have made in the 54 years of the occupation by creating all of these facts on the ground.
What sidelining international law has meant and what has been the theme throughout all of these interim agreements and frameworks and proposals is that because international law is not at the center of these processes, it allows Israel to argue from the strength of already having annexed territory, of already having created 250 settlements in the areas. Therefore, they’re allowed to negotiate over their illegal gains. If a rights-based approach had been put in and had been followed, Israel would have to bargain strictly from the 1967 borders, the settlements would have to all be removed, all of the annexations, in particular, the formal annexation of the Golan and East Jerusalem would have to be undone, and all of its de facto annexation attempts in the West Bank would have to be undone as well. That would put the parties on a parity to be able to negotiate what a final peace agreement would look like.
So, I wanted to take you through the highlights of the main features of law today. I have four areas I’m going to look at, and as I said at my opening remarks, there are some that I can’t go through simply because of time, but also I’m assured that there have been or will be other speakers during this two-day conference who have addressed some of these other issues, most particularly dealing with the International Criminal Court.
So, the first issue I want to be able to tackle with you has to do with occupation, and this, of course, then has to do with the application and obeyance of the Fourth Geneva Convention of 1949.
Since 1967, the world community, expressed through dozens of Security Council resolutions and hundreds of General Assembly and Human Rights Council resolutions has almost unanimously accepted that Israel is an occupation of these territories, and therefore the Fourth Geneva Convention winds up applying.
There are four fundamental features that govern an occupation by an occupying power. First of all, the occupation must be temporary. And ordinarily, temporary is meant, by international practice, five to 10 years at the very most. Think of how long the Americans occupied Japan. Roughly eight or nine years. Think of how long the Western Allies occupied Western Germany after 1945. Again, roughly eight to 10 years. Think of how long the Americans occupied Iraq. And again, eight to 10 years was the maximum period of time. The laws of occupation and the drafters of the Fourth Geneva Convention did not anticipate an occupation that would last indefinitely into its sixth decade as it is right now.
The second point. An occupying power acquires absolutely no rights to annex even a square inch of territory. This is made clear by some of the leading international law writers in the very beginning of the 20th century. And as I’ll show you, this is obviously the position of the international community, certainly since 1967. But any attempt to annex territory either by de facto means, so called temporary means, or de jure means, by formal declaration of annexation, is absolutely prohibited.
Third point. The occupying power must govern, during the time it’s in authority, in the best interest of the population under occupation. That means that all of its administrative efforts should be towards ensuring that the occupying population is receiving, obviously, sufficient food, shelter, education, that it’s been put back into its feet again, and that institutions that either existed or should exist in order for the occupying people under occupation to resumes full sovereignty ought to be built for their interests. The only time that the occupying power can look to its own interests is with respect to the military security of its troops on the ground. That’s the only exception to the rule.
And fourth, and finally, an occupying power must govern in good faith, i.e, “We’re not going to annex, we’re not going to stay here very long,” and they must follow both international law and the directions of the international community to a tee.
I submit to you, and I’ve done this in a report of mine back in 2017 to the UN General Assembly, that Israel is in acute violation of all four of these fundamental requirements. Among other issues that govern the behavior of the occupying power, is that collective punishment is absolutely forbidden under Article 33 of the Fourth Geneva Convention. In one of my report last year, I found that, among other things, the 14 year old blockade on Gaza is a form of collective punishment and therefore is illegal, and I’m not the first person to say that. Both Kofi Annan and Ban Ki-Moon have said that the siege on Gaza amounts to collective punishment and therefore is illegal. And of course, the Palestinian people, as the people under occupation, are deemed to be protected people and enjoy all of the rights that are guaranteed in the Fourth Geneva Convention.
So, what’s Israel’s response to this? Israel’s arguments, which it has held since almost the very beginning of the occupation, is that the Gaza Strip, East Jerusalem, the West Bank, are disputed territories. Neither Egypt between 1948 and 1967, nor Jordan, during the same time period, held proper legitimate recognised sovereignty over those particular Palestinian territories. And therefore, if there was no prior legitimate, sovereign, therefore, there is no occupation now, Israel has as good a title as any other country, in fact, a better title, they would say, than any other country to these lands.
They also argue that the key cornerstone document, UN Security Council Resolution 242 from November 1967, was deliberately meant to be ambiguous and allowed Israel to keep some of the territory it conquered in 1967.
It calls for withdrawal of Israeli armed forces from territories occupied in the recent conflict, and, Israel says, “If we were meant to vacate all of the territory, then they would have put ‘the’ in front of territories.” Now, mind you, that argument is somewhat undermined. If you look at the French, which is equally applicable in interpretation of the UN Security Council resolutions, it says, “les territoires occupés,” which has a more fulsome meaning than simply “territories occupied.” So, this is, again, a very lonely argument being made by Israel.
In contrast, the international consensus is that the territories are fully occupied, they are not disputed, and therefore the Fourth Geneva Convention winds up applying. Indeed, the Security Council has stated on 22 occasions since 1967, that the Fourth Geneva Convention applies in full to the Palestinian territory, including to Gaza, which Israel says that it vacated in 2005 and has no further responsibility for under international law.
This is one of the most frequently commented upon issues in the world today by the Security Council, so to my sense, it’s an impregnable argument that was raised by the international community, and has virtually no following among any international scholars, except for those who might be a voice piece for the Israeli occupation.
The Security Council, in several of its resolutions on the occupation, you see they have strongly deplored Israel’s non compliance and it demands that it immediately and scrupulously apply the convention. This has never been followed through by the occupying power. And the endorsements by the Security Council have found further favour by the ruling of the International Court of Justice in 2004 where it said that the court finds that the Fourth Geneva Convention is applicable to the Palestinian territories occupied by Israel.
So, when you think of all of the leading political and judicial bodies in the international system that hold our highest respect, the Human Rights Council, the General Assembly, the Security Council, and then the judicial body, the International Court of Justice as the highest judicial body in the international system, all of them have said without reservation, that the Fourth Geneva Convention applies and there is no merit at all to the Israeli position.
So, the next area I want to look at then has to do with the question of annexation. Annexation, under international law, has been strictly prohibited since the very beginning of the modern world in 1945. Article Two of the charter of the United Nations is generally interpreted as banning the right of countries to annex. And this was drafted specifically into the charter of the United Nations during the drafting years in 1944 and 1945 because they said one of the leading causes of the Second World War, and indeed the First World War before it, was the non prohibition on countries who are acquisitive and who seeked to be able to expand their borders. They said, “We now have a position that international borders are involatile, that they cannot be moved, and that the world would not recognise any attempt by any acquisitive power to expand its borders illegitimately, then we have removed a major source of war in the modern world.”
And the key resolution with respect to this articulating this is, again, this UN Security Council resolution 242 in November 1967, where it said, and this is at the very beginning, the prelude of the resolution, where it said, “We are emphasising the inadmissibility of the acquisition of territory by war.” And this is why that Israeli interpretation of 242, with the missing “the” is so at odds with modern international law, is that if this was in the opening statements of Security Council 242, then it means that any subsequent wording in resolution 242 has to be interpreted in light of this fundamental, you cannot annex principle, endorsed at the beginning of the resolution.
And we now see that with the 2010 amendments to the Rome Statute of the International Criminal Court, they’ve now added annexation as a crime of aggression under the 1998 Rome Statute, and I’m expecting that this will likely become one of the files on the prosecutor’s desk at the International Criminal Court as it investigates what files, if any, to forward to the possibility of a trial. Of course, it’s all within the decision of the prosecutor what to do. He could advance all the files, some of the files, or none of them, but I am certain that annexation as a crime of aggression will be deemed to be one of the files that the new prosecutor will take position in about three weeks time, will be reviewing in the course of his formal investigation.
What is Israel’s position with respect to this? It says, again, that its ability to annex East Jerusalem was because of its pre standing position that Israel was illegitimately occupied by Jordan in 1967 and that it has as good a right as any to be able to occupy this territory. In Jerusalem, obviously, in 1967 in a cabinet vote, then in 1980 in a Knesset vote, it formally annexed East Jerusalem to Israel. In the process, it’s created 13 settlements within the expanded borders of the East Jerusalem, with about 225,000 Israeli settlers, and it’s constructed a wall that separates East Jerusalem from the Palestinian West Bank, and indeed, where that wall goes through, it even separates some East Jerusalem Palestinians from the city.
Interestingly enough, Israel annexed the Syrian Golan Heights in 1981, and that was recognised by the Trump administration in, I believe, 2019, and that recognition is yet to be undone by the Biden administration.
If Israel had a weak position in wanting to say, “Well, we can annex East Jerusalem because it was never formally a part of any other country,” they have no argument at all with respect to annexing the Syrian, Golan Heights aside from the fruits of war, because every country had recognised that Syrian Golan Heights were the integral part of Syria up until 1967 and remains an integral part of Syria. No other country, besides the United States, has given recognition to Israel’s position on the annexation and incorporation of the Golan Heights into Israel. And as you would have all known, the Trump Peace to Prosperity plan would have allowed Israel to annex around 30 to 35% of the West Bank.
So, what has been the response of the United Nations with respect to this? Well, that principle I mentioned of the inadmissibility of the acquisition of territory by war or by force in the Resolution 242 has been subsequently restated by the UN Security Council in 11 subsequent resolutions regarding the Israeli occupation, including Resolution 2334 in December 2016. In 1980, immediately after the Knesset vote to annex East Jerusalem, the UN Security Council passed two resolutions stating that Israel’s annexation of East Jerusalem was null and void and was a flagrant violation of the Fourth Geneva Convention. And it has going on as well, on various occasions, to strongly deplore Israel’s contravention of its anti-annexation resolutions and criticise the failure of Israel to show any regard for the resolutions of the General Assembly and the Security Council.
So, my next point has to do with the Israeli settlements. This is the archipelago. There are two maps side by side, one done by the United Nations and one done by a French publication. But this is the West Bank, including East Jerusalem, and it’s thick with the 250 plus Israeli settlements that are throughout the West Bank, both in populated areas such as Jerusalem and Hebron, through the highlands and then a spine of the West Bank and into the Jordan Valley as well. Very few areas in the West Bank, outside of the densely populated Palestinian centers, not including Jerusalem and Hebron, where you won’t find Israeli settlements. There presently are, in East Jerusalem and the West Bank, roughly 680,000 settlers. And the archipelago here is basically areas A, and B, which is 167 islands of disconnected land. Palestinians cannot go from one area of their archipelago to another without going through Israeli checkpoints. And obviously, just like in Gaza, well, even more so in Gaza, they have no external border to the outside world. Any ability of a Palestinian to be able to travel to the outside world has to go through Israeli occupied territory.
So, international law and Israeli settlements, this plus the annexation is probably the area that has the widest possible international consensus that these are illegal. The starting point is the Fourth Geneva Convention of 1949, which says that occupying powers could not deport or transfer parts of its own civilian population into the territory it occupies. That very purpose is to ensure that a power who’s become an occupying power develops no inquisitive interest in wanting to annex part or all of those lands. And the safest way, historically, to do that is by moving your populations into these areas and creating facts on the ground that if they last long enough and the population builds up to be big enough, cannot be reversed by the international community.
A very famous report in 1993 from the UN Economic and Social Council said that the range of rights violated by population transfers and the implementation of settlers places this phenomenon in the category of mass violations of human rights. And then you see the most recent UN Security Council resolution on the occupation, which said that the settlements have no legal validity and they constitute a flagrant violation under international law. This was passed in the waning days of the Obama administration.
And let me just put this out as a side point. When you hear people argue that the UN is obsessed with passing resolutions all the time condemning Israel, there are two points to recall. One, the resolutions aren’t critical of Israel, they’re critical of the Israeli occupation. The resolutions don’t address issues with Israel behind his 48 borders, they are addressing an international issue of an oven occupation. The second point has just escaped me. It’ll come back to me in a minute.
The most recent reiteration of this is in the Rome Statute of 1998, where the prohibition against civilian settlements in occupied territory from the Geneva Convention has now been strengthened and redefined as a war crime. And most countries in Western Europe, and my own country in Canada, have incorporated the Rome Statute into domestic legislation. So, this is both international law as well as being domestic law, that the transfer, directly or indirectly, by the occupying power, of parts of its own civilian population into the territory it occupies constitutes a war crime. And that, indeed, is the subject of the UN report that I’m delivering in July to the UN Human Rights Council, is the status of the Israeli settlements under the Rome Statute.
So, the key facts, which maybe are familiar to many of you, is that this is the primary Israeli tool to ensure demographic growth and demographic permanency in the occupied territories. This gives them the claim for sovereignty, which as I said, has been implicitly recognised by the United States and by the parties who work on the various peace processes over the last 30 years, is that Israel has been permitted to negotiate over the settlements as opposed to being told international law, on a rights-based approach, forbids all settlements, therefore, those are off the bargaining table.
There are 250 plus Jewish only settlements in the occupied Palestinian territory. The population… I’ve seen various accounts, but this seems to be the most reliable, is that in the West Bank and East Jerusalem, they now amount to about 685,000 settlers growing by about 15 to 25,000 settlers a year. In 2020, Peace Now said that there were more than 12,000 housing units,and you generally can multiply those housing units by a population of five per unit, have been approved by Israel, and that was the largest number of housing units for the settlements approved by the government authority since Peace Now began taking those measurements, I believe, starting in 2008.
I won’t go through this in detail, but the UN High Commissioner for Human rights issues an annual report on the human rights impact of the Israeli settlements, and these are among the key areas of discrimination and adverse impact upon the Palestinians living in East Jerusalem and the West Bank. Two of them I’m going to point out. The second one down is the whole array of differential rights and laws. Obviously, as Michael Sfard said yesterday, Israeli settlers living in a settlement outside of Nablus, they have all the rights of an Israeli living in Tel Aviv or in Haifa. If they’re charged criminally, they go to an Israeli court, and they have all the due process protections, including the right to a lawyer to be able to protect them. Palestinian living in the same geographic area enjoys none of those rights or coverage by laws. If they’re charged with murder, they will be charged under Israeli military law, which is a conviction rate of well over 99% when it comes to Palestinians.
And at the bottom, the denial of self determination.
If the settlements are the engine of the occupation, there’d be no point in Israel wanting to continue the occupation. If it wasn’t for the almost 700,000 settlers and the 250,000 settlements they have there, this is the key form of being able to deny Palestinian self determination. Indeed, if you looked carefully at the map proposed by the March 2020 Trump Plan, it incorporated every single settlement into the proposed Israeli annexation and left the Palestinians, again, with this little Bantustan in the middle of the West Bank. If Palestinians accepted that, that would have been a brand new definition of what a state means in modern political science.
So, the point of all this, and there are many Israeli statements to this effect, that the more settlements we build and the thicker our settlement population, we not only have created a internal large settlement lobby on our governments never to give them up, but we’ve denied any space for another Arab state west of the Jordan River.
And my final point, and I’m going to be brief on this because I know that one of our panelists today will be commenting upon this, but just very briefly. To my mind, this is the missing point with respect to the occupation. International law has created at least three important rules which virtually all countries have bought into that ensure that there is going to be accountability if international laws are disobeyed by any member states.
The common article number one of all of the four Geneva Conventions of 1949 require that all of the high contracting parties, which includes virtually every country in the world, to ensure respect. And the International Committee of the Red Cross says that is not an empty claim, that is full of legal meaning that compels legal responsibility on all other high contracting parties to bring violations to the Fourth Geneva convention to an end.
The Articles 40 and 41 of the 2001 articles on state responsibility require the international community to cooperate to bring serious violations of human rights and international war to an end. And article 25 of the Charter of the United Nations says that members of the United Nations agree to accept and to carry out decisions of the Security Council in accordance with the charter.
Israel is in violation of at least 30 Security Council resolutions since the late 1960s with respect to annexation, with respect to the settlements, with respect to the occupation, and so on, and the United Nations has never called upon Israel to comply or face consequences under its solemn obligations under Article 25.
And you look at the centrality of accountability, and this is the tension between what international law requires and what realpolitik wound up allowing, you can see that former Secretary General, Ban Ki-Moon, said in 2016, that tackling impunity with respect to Israel must be the highest priority. The German ambassador in 2019 to the UN said very astutely, that international law, you cannot cherry pick. International law is not a menu a la carte, that you can pick and choose from. When you buy in, you buy into everything. And the Special Rapporteur, me, said that the international supervision of the 53 year old Israeli occupation of Palestine illustrates that between international law and accountability, there is an enormous gap between promise and performance. International law should not be an umbrella that folds up when it rains.
I’m getting very near to my end and I know I’m getting close to the end of my time, but let me just put this to you, because it shocked me I think when I first came across this particular resolution shortly after I became Special Rapporteur five or so years ago. In June 1980, almost 41 years ago, the UN Security Council passed resolution 476. This is in the immediate aftermath of the vote by the Israeli Knesset to annex East Jerusalem. And it said two important things. It said, first of all, that they reaffirmed the overwhelming necessity – this is in 1980 after only 13 years of occupation – the overriding necessity for ending the prolonged occupation of Arab territories. That should be number two. My apologies. Then they went on to the very next paragraph and said, “We strongly deplore the continued refusal of Israeli occupying power to comply with the relevant resolutions of the Security Council and the General Assembly.”
So, if the occupation was already prolonged in 1980, and if Israel already had a strong track record of defying the Security Council and the General Assembly by 1980, what is it now? The European Union has called this now a one state reality of unequal rights, and I must say, if I put that term into Google Translate, it comes out apartheid, which, of course, is what leading human rights organisations have began to say. Israeli, Palestinian and international have begun to use that term in the last few months.
So, very quickly, what lies ahead. Kofi Annan in his closing statement, in the last few weeks of his mandate as Secretary General said, in 2006, he pointed to the centrality of the Israeli-Palestinian conflict, the Israeli occupation of Palestine, as a core issue that had to remain at the top of the international agenda. “You see that no other issue, he said, carries such a powerful, symbolic, and emotive charge affecting people far from the zone of conflict.”
And he then went on to say, in 2011 in his memoirs, he said he was disturbed, and I’m going to use his quotes, “by the prolonged and sometimes brutal occupation,” his words, “by Israel,” and he lamented the timidity of the Security Council’s response. He said, “Even when the council took positions, it did not establish mechanisms to enforce its will.” And he went on to identify a leading source for the council’s paralysis. He said, “it was the unhealthy possessiveness of the Middle East peace process by the United States of America.” And as you may know, the US, since 1973, has cast 31 vetoes at the Security Council against draft resolutions critical of the Israeli occupation. In each case, it has been the only Security Council member casting a negative vote. No other permanent member of the Security Council has vetoed a single Council resolution critical of the Israeli occupation.
And finally, then we have the statement by Daniel Levy, who is a former peace process negotiator and those who, if you’ve come across him, you’ll know that his commentary and his policy thinking with respect to the Israeli occupation, is absolutely top drawer. And he said, “Human rights and international legality should be our guiding star and no longer be subordinated to maintaining a peace process that has probably failed to deliver.” So, let me end that there.
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