Session II: International Law and Human Rights
Chair: John McHugo (BP Trustee)
Keynote Speaker: Baroness Helena Kennedy QC
Panellists: Iain Scobbie, Daniel Seidemann & Victor Kattan
Good morning, everyone. My name is John McHugo. I’m a trustee of the Balfour Project and am chairing this session on international law. I’ve noticed that speakers have already mentioned international law, although only in passing. His Royal Highness Prince Hassan mentioned it and so did Avi Shlaim. There are two things to be said about international law. The first is that it is quite appropriate for it to follow on from the session on history, because rights in international law stem from what happened in history. It is to history, in a sense, that we look for our rights – even when those rights have been traduced or denied, or become temporarily incapable of being fulfilled or enforced. Nevertheless, their roots lie in history, and we need to understand this. The other thing I hope is that international law can give some clarity. It will be interesting to see if the discussion confirms this.
Our keynote speaker today is Baroness Helena Kennedy. She’s having some difficulty joining us at the moment so we may begin instead, if this is all right, with our two other speakers. They are Professor Iain Scobbie and Daniel Seidemann from Jerusalem. Iain, I’ll go to you first if I may. Iain is the Professor of Public International Law at Manchester University and the Co-director of the Manchester International Law Centre. He had previously been the Sir Joseph Hotung Research Professor in Law, Human Rights, and Peace Building in the Middle East. I’ve known him for many years, and I know that he has a very detailed knowledge of the international law issues concerning Israel and Palestine. He studied Law at Edinburgh and also the Australian National University, but it was at Cambridge that he did his doctorate. It was on legal reasoning and the judicial function in the International Court of Justice. His supervisor at Cambridge was the late and great Sir Elihu Lauterpacht. Those of you familiar with international law will know his name very well.
I hope that by not being Helena Kennedy, I’m not disappointing you too much.
What I want to talk about is really the claims that are made regarding the sovereignty over, and the status of, Jerusalem. As we all know Palestine envisages that East Jerusalem should be its capital, while Israel claims Jerusalem as a whole. As we’ve seen earlier, it claims that an enlarged Jerusalem falls within its territory.
It might seem an odd place to start, but I want to go back to 1993 when Israel and the PLO entered into the Declaration of Principles on Interim Self-governing Arrangements. These were meant to lead to negotiations, which would lead to a permanent settlement which implements Security Council Resolution 242 of 1967. This resolution was adopted in the aftermath of the Six-Day War and called for Israel to withdraw from territories it had occupied during the Six-Day War: in other words, East Jerusalem, Gaza, and the West Bank.
In an exchange of letters, which were associated with the Declaration of Principles, the PLO expressly accepted Resolution 242. This legally could be interpreted as an indication that in principle, Palestine accepts that West Jerusalem legitimately falls within Israeli territory subject to any modifications that could be made in the final status talks. But we all know that those talks have been stalled for some time. This idea that Israel has jurisdiction over West Jerusalem has also arisen from some interpretations of The Wall Advisory Opinion, which was delivered in 2004. This opinion was delivered by the International Court of Justice, which is the principal judicial organ of the United Nations. The case was about the course of the wall that Israel was building and, in particular, its encroachment into the West Bank and territory which goes beyond the Green Line.
I’ll be getting back to The Wall Advisory Opinion slightly later. The other thing that we’ve got to consider is that – I think it was 6th December 2017 – President Trump recognised Jerusalem as Israel’s capital. As Mick Dumper pointed on, there is really a lack of clarity about what this means. There were conflicting statements made, not simply by Trump, but by some members of his administration. It’s really not clear what this declaration of recognition entails. President Trump always talks about fake news. This might be an instance of fake diplomacy. Anyway, Trump’s statement was taken at face value and was generally repudiated by other members of the international community.
For instance, there was a Security Council meeting in December 2007, where every member apart from the United States rejected the US action and criticised it heavily, declaring it was contrary to international law. They unanimously voted in favor of a draft resolution, which affirmed the previous resolutions made by the Security Council regarding the international status of Jerusalem. The draft went on to stress that Jerusalem is a final status issue to be resolved through negotiations in line with relevant United Nations resolutions . It stated that any decisions and actions which purport to have altered the character status or demographic composition of the Holy City of Jerusalem are of no legal effect and are null and void, and must be rescinded in compliance with relevant resolutions of the Security Council. In this regard, it calls upon all states to refrain from the establishment of diplomatic missions in the Holy City. This resolution was not surprisingly vetoed by the United States, but a few days later the UN General Assembly overwhelmingly adopted a draft resolution that was cast in similar terms.
During these Security Council debates on the Trump recognition of Jerusalem, some members made reference to Security Council Resolution 181. This has already been mentioned in the history section. This was really adopted in anticipation of the United Kingdom’s imminent withdrawal from mandate Palestine and it envisaged the division of the territory into an Arab and a Jewish state. On the other hand, as has already been said, Jerusalem was not to be incorporated into either state, but it was to be internationalised under the auspices of the United Nations. Part of the resolution read: “the city of Jerusalem shall be established as a Corpus separatum under a special international regime and shall be administered by the United Nations.”
At least in part, I think this was a case of international politicians looking to the past, and to some of the experience during the interwar period. The most obvious case would be the internationalised status of Danzig, which was not terribly successful. It wasn’t a good example to take for this idea of internationalisation. There were a few other proposals before World War II for one or two other internationalised cities, which really didn’t come to much.
Resolution 181 for various reasons was never formally implemented, but it still retains importance. For instance, the Israeli declaration of independence relies strongly on Resolution 181 to base its claim to legitimacy. Similarly, the Palestinian National Council declaration of independence, which was done in Algiers on 15th November 1988, affirmed that Resolution 181 still provides the legal basis for the right of the Palestinian Arab people to national sovereignty and independence. 181 envisaged Jerusalem as this internationalised corpus separatum that has not come about.
As a consequence of the Six-Day War, Israel occupied the West Bank, East Jerusalem, and Gaza. Shortly after the end of hostilities on 27th June 1967, the Knesset promulgated what’s known as the Law and Administration Ordinance Amendment Number 11 Law, which provided that the law, jurisdiction and administration of the state shall extend to any area of Eretz Israel designated by the government by order. This is the basis for the Israeli annexation of East Jerusalem because the next day, the Israeli government proclaimed new boundaries for the city of Jerusalem. These were extended. Mick Dumper showed you the maps of how the lines were essentially redrawn and the new city boundaries incorporated those parts of East Jerusalem, which had previously been under Jordanian administration. In July 1980, the Knesset then adopted the Basic Law: Jerusalem Capital of Israel, which states that “Jerusalem, complete and united” is the capital of Israel.
Now although in 1967, Israel claimed that it had not annexed East Jerusalem, this really has to be doubted. For instance, the Israeli Supreme court has repeatedly ruled that East Jerusalem has been annexed and made part of Israeli territory. The 1980 basic law was amended in 2000 to provide that no area of Jerusalem within this extended municipal boundary could be transferred either permanently or for a limited period of time to a foreign body whether political, governmental or any other similar type of foreign body. Legislative proposals have been put before the Knesset in the past few years which are aimed at enlarging the municipality to include adjacent settlement blocks and thus effect their annexation and tighten Israeli control over the area.
This idea of further annexation is also envisaged by the Trump plan. When the International Court of Justice in 2004 delivered its advisory opinion, it reviewed the reactions of the Security Council to provide an airing for Israel’s attempts to change the status of Jerusalem. Noting that it had repeatedly recalled the principle that the acquisition of territory by military conquest is inadmissible, it stated again that all legislative and administrative actions taken by Israel to change the status of the city of Jerusalem aimed at the incorporation of the occupied section are invalid and cannot change the status. This has been the standard and consistent view of essentially all the different organs of the UN.
The other thing that I wanted to pick up on is that in The Wall Advisory Opinion the court stressed that all the territories between the boundary drawn on the armistice line between Israel and Jordan and the Eastern boundary of mandate Palestine (essentially the river Jordan) which were occupied by Israel as a result of the Six-Day War, namely the West Bank and East Jerusalem, are territories over which Israel has the status of an occupying power, and over which it is not sovereign. This was a unanimous ruling of the ICJ, which is very rare. So it’s clear that under international law, Israel is prohibited from making claims to sovereignty over territory which it invaded in 1967. As a belligerent occupant, it’s only got a temporary power of administration and it cannot annex these areas and as it doesn’t possess sovereignty over these areas, they cannot form part of its capital. So Israeli domestic legislation on the extent of Jerusalem, its complete and united capital, violates international law and has no validity or legal effect.
Iain thank you very much. Thank you for getting so much into such a very short time. I will now go to Baroness Helena Kennedy, if I may. Baroness Kennedy is probably one of the best-known people speaking at this conference today, she is a barrister, broadcaster and a member of the House of Lords. She has many achievements, which I can’t list all of now, but she was the driving force behind setting up the Bonavero Institute for Human Rights at Oxford University. She has been Chair of Justice, the British Arm of the international commission of jurists. She also has an interest in the preservation of our democracy. She was involved in Charter 88 and more recently she chaired the Power Inquiry, which reported on the state of British democracy in 2006. Another of her interests is how the justice system fails women very often. And she has written several books on this topic, but I’ll shut up there and hand over to Helena Kennedy. Thank you so much for joining us today,
Baroness Helena Kennedy:
John, thank you very much for introducing me.
I wanted to start by saying that if you’re going to talk about law, I always say: “context, context, context”. Look at the context in which the law was being made. Look at the context in which our law is failing and see what the drivers are in both directions. I spoke at the Balfour Project conference on the centenary of the Balfour Declaration. At that time, I wanted to speak about the rule of law and all of this. If we are going to talk about law at the moment, we also have to talk about the context today. But let’s talk about the context then. You’ve got to remember it was just as the First World War was ending. It was when Britain had planted its roots all over the Middle East and, indeed, elsewhere. It was when the Ottoman Empire was being brought to an end.
Of course, there were questions also about the fact that we were colonialists. We were used to thinking of people as being lesser, indigenous peoples in many of the places that we occupied as the British Empire. They were being deemed to be lesser. I have no doubt that those views were held about the Arab peoples living in this region, too. It’s shocking for us now and particularly for our young looking back to imagine such a situation, but it was certainly true. When the Balfour Declaration was made, there’s an argument about whether it really had the status equivalent to a treaty, but there was great dialogue going on with very distinguished and powerful people in Britain, like the Rothschilds, who had settled in Britain and were advocating on behalf of the Jewish people who were being persecuted across Europe.
We were also seeing revolutions taking place around this time and people rising up in different parts of Europe. There was undoubtedly a great deal of discussion about what we were going to do. There was a movement to try to create a homeland for Jewish people to flee to, and we all know the history of the Balfour Declaration. When I went back and had a look at it at the time of its centenary, it came as a shock to me that it was basically 67 words. This short document laid the ground for much that has happened since. It was referring to the creation of a Jewish home not a Jewish state, which was an unprecedented notion in international law, and it left the meaning open for interpretation. In fact, earlier drafts of it had described the reconstitution of Palestine as a Jewish state – this region was being referred to as Palestine. However, such wording would have been in clear violation of international law. That was why it was changed to discussions about a homeland. The project to find a place of safety is a discussion we also have now about refugees and victims of persecution.
It was also about protecting British interests in the region, the Suez canal and so on. We mustn’t think it was always simply about the protection of peoples. There was no doubt that that were mixed intentions in this. That idea of a home for the Jewish people, who were being persecuted across Europe and in the pogroms, included the words, “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”. As a lawyer, and a lawyer who is interested in democracy and so on, I would point out that the words ‘political rights’ are missing from this text.
It matters. because the political rights of the Palestinian people were not being protected, and the legal status, as I said, of the Balfour Declaration has remained sort of debatable. It wasn’t a binding treaty between states. There were no obligations that were binding on both sides. It was really a proclamation in a letter and its significance as binding law came later when Palestine became a British Mandate.
I just wanted to rush us through a little bit about context, because what you all know is that between 1925 and 1948 the British facilitated Jewish immigration to Palestine from places across Europe where people were being persecuted, automatically granting each newly arrived immigrant a Palestinian passport. That was all done under Article 7 of the Palestinian Citizenship Order created in 1925. This continued right up until 1948. Then we have what the Palestinian people call the Nakba.
There was a great deal of resistance from Jewish resistance movements to the British authorities who controlled Palestine, the Irgun and so on, who would be called terrorists today. They weren’t very different from the IRA and so on, basically wanting to create a proper Israeli state. As you all know, in 1947, the UK turned the Palestine problem over to the United Nations with no recommendations, and the United Nations General Assembly on the 15th of May 1947, created a special committee on Palestine.
That was in response to the United Kingdom’s request that the General Assembly make recommendations as to what should happen concerning the future government of Palestine. The committee’s report of that year, 1947, was a plan proposing an independent Arab state, an independent Jewish state, and an independent city of Jerusalem. The Palestinian Arabs and members of the Arab League rejected any partition of Palestine and so ‘ of course, there were the horrors that followed. The General Assembly passed Resolution 181 and you’ve been discussing it and we’ve heard Iain Scobbie talking about it, creating separate Jewish and Arab states operating under economic union, and with Jerusalem passed to the UN as a trust. We know what happened in the aftermath. On the day in 1948 when the British Mandate of Palestine was to expire, Israel declared the establishment of a Jewish state in Eretz Israel to be known as the state of Israel, and the territory of Israel was to be what was proposed in Resolution 181. Within a few days of the passing of the partition plan, a full full-scale conflict broke out between the Jewish and Palestinian Arab peoples.
I won’t go into every single one of the Resolutions relating to this conflict – we all know that very large numbers of Resolutions have been passed in relation to it, but the idea that the Palestinian people might have their own state is being reduced to rubble. Not reduced to rubble in fact, but built upon, because the very place where they could build their state, their place of sanctuary, is not made possible for them in the current circumstances. As I was watching and listening to you earlier, a question came up which said all these resolutions that have come through the United Nations have failed to hold Israel to account for its failures to abide by law. This is seriously egregious, as the idea of occupying land during a conflict, and then not stepping back and returning it to its people afterwards, is one of the absolute tenets of international law that we all know about: you’re not to retain and to use conflict as an opportunity to land grab. Yet that’s what we’ve seen happening.
Article 49 of the 4th Geneva Convention states that forcible transfers, as well as deportations of protected people from occupied territory to the territory of the occupying power or to that of any other country, occupied or not, is prohibited, regardless of any motive. Under Article 147 of the Convention, unlawful deportation or transfer of a protected person constitutes a grave breach of the Convention. The breaches of international law have been repeated and I know that others have gone through some of this before I was able to join. So the question that came up on the side from one of our participants was, is International Law dead? Does it have any meaning at all? Here we are in Britain and we’ve got a government trashing international law by introducing an Internal Markets Bill, which is in total breach of a treaty obligation created less than a year ago in the Withdrawal Agreement.
That was supposed to protect the special protocols in Northern Ireland created by The Good Friday – Belfast Agreement. What we’re seeing is a government that’s well prepared to trash International Law. We know that Donald Trump is certainly prepared to trash International Law, and he’s undermining the United Nations all the time. He’s withdrawn from the UN Council for Human Rights. We know that others are taking comfort from that because we’ve had Guatemala pulling out of the treaty, we’ve had Orban saying that International law shouldn’t apply. We’ve had this happening increasingly around the world. The way in which the UN was created in 1948 gives huge power to the five key Security Council States. So the assertion of the rule of law becomes very difficult in our current context. When I say that context is everything, it really is.
We ask, “can international law apply?” Can it just be ignored as Israel is ignoring many of the resolutions that have been made? I’m afraid that international law is only as good as the consensus and the multilateral consensus that holds it in place. Once it starts being undermined by major nations in the world, then I’m afraid your questioner on the side is right to ask, what is it worth? Where is the maintenance of these standards that we thought had been created in the post-world war II consensus, the rules-based order? It’s being diluted by the day. I’m afraid that this moment we’re dealing with the COVID-19 contagion, this terrible pandemic, but there’s another contagion that is taking place in this world.
It’s the contagion of populism. It’s the contagion of attacking any set of rules. It’s the celebration of deregulation, the idea of the immature notion that you can live without rules. I’m afraid that if you look around, you’ll see that most of the places where there is a particular trashing of law, are led by men and men who are marooned in their adolescence, who have a problem about maturity and understanding why law matters. I’m in the Slough of Despond at this moment about the state of our world, but at my heart, I remain an optimist. I remain a believer, that people yearn, they yearn for freedom, and they yearn for self-determination, and they yearn for all those things that we tried to put together when the Universal Declaration of Human Rights was created and so on.
I believe that we can keep saying why this stuff matters, why living by the rules matters, and why respecting each other and the humanity of each other, matters. The idea that Palestinians are treated as lesser and as less worthy of a place to call their own is wrong. It seems to me, sad, that it isn’t being spoken loudly enough in our world.
I have many Israeli friends who believe the same as I do. I’ve gone and I’ve spent time on the West Bank and seen the courts that are held there, which are basically military commission courts so that people are being tried by the occupying state. Kids who throw stones at the army and the army vehicles, and stuff. All the documents in those commissions are in Hebrew. The people who sign confession statements, half the time don’t know what’s even in there. Do you know that so many of the lawyers were acting on those commission cases are Israeli human rights lawyers? There are many decent, good Israelis who want peace, who want justice, and who want the Palestinian people to be receiving the respect that they deserve and a place of their own. They are not at the moment allowed to even speak out. There’s a silencing, and that’s what populism does. So please, when we talk about all of this, we have to talk about it with mutual respect. As far as I see, this might not be the moment when great change will take place, but we have to keep battling for a different kind of discourse, a different kind of world, and a world where multilateralism and the rule of law is respected.
Thank you so much. Baroness Kennedy, that was very inspiring. It made me think of the duty in international law, not to recognise breaches of international law, and that may be something we may be able to come on to in the discussion later, if there is time. I’ll now turn to Daniel Seidemann who is from Jerusalem himself. He is an Israeli attorney specialising in the geopolitics of contemporary Jerusalem.
First of all, thank you to the organisers – to Sir Vincent, to Andrew, to the Balfour Project. Given the title of this discussion, I want to preface with one sentence: nothing that I am going to describe to you is compatible with international law. So let’s get that out of the way.
For the purposes of our discussion, I find it useful to begin in the period between 1949 and 1967, when Jerusalem was a Berlin-like divided city, and to all intents and purposes, it was two cities and two homogeneous cities. That’s not entirely accurate, but it was an Israeli city and it was a Palestinian city ruled by Jordan. Overnight in 1967 and especially with the purported or real annexation of East Jerusalem, Jerusalem is transformed from two homogeneous cities into one bi-national city in which 25 or 26% of the population was Palestinian.
When Israel annexed East Jerusalem, we annexed the land; we did not annex the population. We did not act as we did in 1948. We did not impose Israeli citizenship on the Palestinians in the annexed territories, we did not offer citizenship. They did not want citizenship. There is a legend that the Palestinians are entitled to receive citizenship. That is incorrect. They can ask; we can say, “no”. They don’t ask, and we say, “no”. There are approximately 15,000 Palestinians out of probably 800,000 Palestinians who have lived in the city who became citizens. Everything that Israel has done since 1967 has been driven by the calculus of national struggle. There’ve been three goals to this. Number one, to make the city physically indivisible; it will never re-divided again. To maintain a robust Israeli majority. The euphemism is maintaining the demographic balance.
Someone has quipped that the birth of a Jewish child in Jerusalem is a simcha, a joy in Yiddish and the birth of a Palestinian child is a demographic problem. To consolidate Israel’s status as the capital of Israel, 53 years on, Israel has radically changed the face of East Jerusalem. Today, there are in the order of 220,000 Israelis living in the settlement neighborhoods of East Jerusalem and I certainly do not make light of that, but our policies have failed. They’ve all failed. Jerusalem today is more bi-national than ever before. Today, the Palestinian sector of the population is approaching 40%. It is more divided than ever before. Here I disagree with my colleague Menachem Klein. We walk different streets, speak different languages, go to different schools, study different curricula, shop in different shops.
It’s already been mentioned. The United States has not been joined by a chorus in the international community, recognising Jerusalem as the capital of Israel. 53 years on the basic fact that was created in Jerusalem remains the fundamental fact of Jerusalem today. There are two national collectives in Jerusalem, one of which is politically empowered, and the other is permanently politically disempowered. The Palestinians of East Jerusalem are not citizens. They do not have the right to vote. They cannot be judges. They cannot become mayor of Jerusalem. They can vote for mayor, but don’t do so. Any political activity, more radical than a scout meeting, is squashed by the Israeli authorities; and a situation in which you have two collectives, one with all of the power and the other with none of the power, is called occupation. I had the privilege of taking the Trump negotiating team up and around and looking at East Jerusalem. And what I told them was: what I describe to you is occupation and I’m speaking now as an international lawyer.
I’m speaking about the empirical realities. And unless you understand that East Jerusalem is occupied, you won’t understand this conflict. If you don’t understand the conflict, you will not be able to formulate policy if you do not establish that one of the goals of a political agreement is ending the occupation of East Jerusalem. You will fail and that is exactly what has happened. A house divided against itself cannot stand half occupied and half free. What does this occupation look like? It informs and seeps into every corner of life. 38%, 40% of the population in East Jerusalem gets 10% to 12% of the budget. Israel built 55,000 houses in East Jerusalem alone for Israelis. We built less than 600 for Palestinians, and the last of those were in the mid-1970s. There is a shortfall of more than 2000 classrooms in East Jerusalem.
There have been periods in which occupation has been something of a disease in remission. It’s no longer the case. We’re seeing an occupation that is becoming increasingly more aggressive and metastasising and that is the nature of occupation. We’re seeing an uptick in the displacement of Palestinians from their homes to be turned over to settlers in places like Sheikh Jarrrah and so on. We’re seeing enhanced enforcement. This is another euphemism. There are nightly incursions into Isawiya which has basically been subjected for the last year and a half to collective punishment. We’re seeing a very dangerous erosion of the status quo on the Temple Mount. This is not because of Israeli bad behavior. This doesn’t end when Israel behaves better. This is not a situation that can be reformed. What I am describing to you is inherent in the DNA, the genetics, of occupation. Until occupation ends, we’re going to see more of it and it is not going to be pretty. If you want to be able to see in words, what the Israeli policies are in East Jerusalem, I highly recommend that you read the Trump plan, but read it as you would a novel.
What do you discover there? First of all, all of Jerusalem, East, and West is assigned exclusively to Israeli rule, Israeli sovereignty. But beyond that, the Palestinians in general and in East Jerusalem in particular, are imbued with a diminished humanity. Israelis have the right to self-determination: Palestinians do not. Jews have rights, Palestinians have needs. Rights are inalienable; needs are malleable, and to be distributed as a reward by beneficence benefactors. What we are witnessing in the plan, is that the word “Palestinian” is mentioned once in the context of Jerusalem, even though it takes up a good deal of the agreement. We are witnessing the de-nationalisation of East Jerusalem and the marginalisation of its Muslim equities. What we’re seeing today is the geopolitics as led by Trump, and the policies on the ground, dovetail, and reinforce one another. It’s adequate to describe to you what this looks like up close, and it’s not for me.
I’m Israeli. I’m the occupier, but I feel compelled to do so. And when I speak to the young men and women in Isawiya, or Silwan, the word that I think of is extinguished. There’s something extinguished because they cannot imagine a trajectory by which occupation ends, and they assume a measure of control over their lives. I don’t quite know what to tell them in order to address their hopelessness.
I do want to end on a slightly different note. At two o’clock in the morning in the 1990s, 2000s, I would race over to a house that was being taken over by settlers. I would meet the late, great leader of the Palestinian people, Faisal Husseini, who tragically passed away far too young in May of 2001. I’d be visibly upset and Faisal would console me and say, “Danny, you Israelis are creating facts on the ground. We, the Palestinians are the facts and we’re not going anywhere.”
I would like to complement that statement. Something said by the former head of the Israeli Mossad, Tamir Pardo. Tamir Pardo recently said that Israel is confronting only one existential threat in this generation, and that is occupation, perpetual occupation. It is not the Iranian nuclear capability. We have an operational response to that. It is not 120,000 Hizbollah rockets. Israel over time cannot survive as a perpetually occupying power. Therefore it remains an existential imperative to both people to end occupation. Literally, our lives depend on it, even if that is not accessible at the moment. I cannot see in the current situation a route forward, although hopefully on January 21, next, we will begin to rebuild an international order out of the ashes left behind by Trump and his colleagues. I do believe that ending occupation and a united, shared Jerusalem remains an historical inevitability. I might not live to see it. But it remains inevitability and the challenge to us practitioners on the ground, here in Jerusalem, is to bridge this terrible chasm between the politically impossible and the historically inevitable in making this a city in which neither national collective has to struggle to maintain its identity. Thank you.
Thank you very much for that, Danny. That was very moving. I might remind everyone of your opening remark: that everything you said about what is happening in East Jerusalem, everything that is happening, everything you described, is incompatible with international law, is forbidden by international law.
We’re now opening a discussion period and we’re joined by one other participant, Victor Kattan, the Anglo-Palestinian scholar. Victor is now a Senior Research Fellow at the School of Law at Nottingham, where he is studying the prohibition of apartheid in international law in places beyond South Africa. For many years, he was an Associate Fellow at the Faculty of Law at Singapore University. His publications include a book which I recommend very strongly. It’s called “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949”, which includes the results of some really prodigious research going through the legal archives in the National Archives at Kew and places, looking up stuff that hardly anyone had looked at before. Victor, would you like to open the discussion perhaps? One thing we haven’t talked about is what opportunities are there for the Palestinians to seek redress in international law institutions for what is happening, not just in East Jerusalem, but in all the other occupied territories. One of the great problems with international law is very often there is no forum in which you can enforce your rights. Would you like to comment on that with reference, perhaps, to the era of Donald Trump and the progress of such litigation as there is going on at the moment?
Thank you, John, for the introduction. Absolutely, I will address these issues that you’ve just mentioned. I just want to start by saying it’s wonderful to see so many friends on the panel today. To answer your question, the Palestinian leadership has brought two cases before two different international courts that are relevant with regard to the issue of Jerusalem. The first case is that before the International Court of Justice, which is the principal judicial organ of the United Nations where Palestine lodged an application against the United States of America under the Vienna Convention on diplomatic relations. This followed US President Donald Trump’s recognition of Jerusalem as the capital of Israel in December 2017, which has been mentioned by a number of people already. Just to explain: the International Court of Justice is a body for resolving interstate disputes, that is disputes between governments. It doesn’t prosecute individuals. Palestine is asking the court to order the United States of America to withdraw its diplomatic mission from Jerusalem. Some of you might question whether this is a Human Rights case, if we think of the right to self-determination as the foundation of human rights. The case is important as the international court is going to have to decide whether Palestine is a state in order to access the court before it addresses the merits.
The second case that the Palestinians have brought before an international body is that before the international criminal court, which is also located in The Hague, but which unlike the International Court of Justice can prosecute individuals for crimes listed under its statute, namely genocide, crimes against humanity and war crimes. Palestine claims that crimes have been committed on the territory of Palestine by Israel since the 13th of June 2014 and this includes East Jerusalem.
With regard to the issue of Jerusalem which this conference is about, there may be tension between the cases. This is because the case before the international Court, Palestine claims that Jerusalem has a special status in international law as provided in United Nations General Assembly Resolution 181 that partitioned the former British Mandate into two States. We heard about this from Professor Avi Shlaim this morning, and also from Baroness Helena Kennedy and Iain Scobbie in their talks. That resolution envisaged, a special international regime over the city of Jerusalem, which would be administered by the United Nations for a renewable 10 year period that would be overseen by the United Nations trusteeship council. The boundaries of the special international regime extended as far as Ein Karem in the West of Jerusalem and included Bethlehem to the South of the city. By way of contrast, Palestinine’s application to the prosecutor of the international criminal court refers to East Jerusalem as part of the territory of the occupied state of Palestine. East Jerusalem is the name given to that part of the city that was captured by Israel in the June 1967 war, which Danny Seidemann has said much about.
It’s not clear whether Palestine can claim sovereignty over Jerusalem while also claiming that the city has a special status in international law as defined in General Assembly Resolution 181. Perhaps this is where the proposals mentioned by Professor Mick Dumper in his talk this morning might be relevant, as some of these envisaged a special international regime for the Old City while other areas of the city fall under Israeli or Palestinian sovereignty.
You may ask: why does any of this matter, when I point out that the issue of the Palestinian state and Israeli war crimes are under active consideration by the International Court of Justice, and by a pre-trial chamber at the International Criminal Court? At the end of last year, the prosecutor of the International Criminal Court announced that, following an assessment of all the available and reliable information that was available to her, she concluded that all the statutory criteria under her statute had been met and that she could open an investigation.
However, given the complex legal and factual issues attaching to the situation in Palestine, she requested a jurisdictional ruling from this pre-trial chamber on the issue of the territorial jurisdiction of the court. In other words, the Chamber’s going to have to determine whether East Jerusalem is part of the Palestinian State among other things. My expectation is that we will not hear anything thing from either the pre-trial chamber or the International Court until after the results of the US presidential election. In my mind, a Biden administration would be less hostile to the cases Palestine has brought before these courts. This does not mean that Biden would move the embassy back to Tel Aviv. However, an ICJ decision that said that Palestine was a state might put momentum back into failed peace talks, and it might lead some European states to recognise the state of Palestine.
I also think that Biden would be less hostile to the International Criminal Court than Trump. I do not think he would enforce sanctions against or call for sanctions against ICC officials as the Trump administration has done. Even if he were to do so, Biden would face a lot of criticism from the left flank of the Democratic Party. So clearly there is a lot at stake in the US presidential election on the 3rd of November. So I’ll leave it there and I’ll be happy to hear from other members of the panel what they think about these issues. Thank you.
Thank you very much for that, Victor. Unfortunately, we’re very nearly out of time and I’d hoped to have a discussion now. I’d hoped to touch on the importance of non-recognition of breaches of international law. I think that is very relevant to the discussion earlier today about whether there is a one-state or a two-state solution, because if Palestine does exist as a state on the occupied Palestinian territory, then there is a duty in international law not to recognise breaches of international law, including the so-called Israeli facts on the grounds that I think George W. Bush began by appeasing, if one can use that word – or placating, shall we say? That very much extends to what President Trump has done. Would anyone like to comment on that issue or on anything else? I’ll begin in the order in which people have spoken. So I’ll go back to you, Iain, if I may. Would you like to make a few concluding remarks? Any points that you think are of particular interest that have come out of other presentations today.
You’ve already talked about non-recognition John. This has been a consistent plea by the Security Council, General Assembly, and also in the ICJ 2004 opinion. The court laid down a very clear duty of non-recognition for unlawful Israeli acts. Helena raises something earlier about all these resolutions by various UN bodies. The thing about them, Helena, is that they were mainly recommendations. Anything that comes out of the General Assembly is a recommendation. There are very few instances, particularly until the end of the Cold War, when the Security Council would use its powers of decision. The General Assembly was making recommendations, rather than making decisions, which would be binding on UN members.
Thank you very much, Iain. Helena, would you like to say a few closing words?
Baroness Helena Kennedy:
I really was very moved by hearing Danny, and I want to pay tribute to him for his incredible work, and also to everybody who’s spoken. I’ve been looking at the questions and the comments from people, and someone said, “can’t we now stop talking about history, and let’s talk about now, and about how we find a peaceful solution?” There is a bit of me that feels that same sense of urgency, but the more we pick at the stabs of the past, it can be problematic. In some ways, people can’t get rid of those feelings. Say that to Black Americans who had the history of slavery impacting on their lives and still affecting how things are in the United States. Say that to people who experienced racism in this country, their own countries back home, having been exploited by us and having enriched the United Kingdom.
You can’t get away from history, but that doesn’t mean that you can’t also be talking about finding a way through and finding a peaceful solution, now. When you look at the truth and reconciliation process in South Africa, it hasn’t solved everything, but it did deal with a lot of the pain. I just hope that a moment will come where we can actually move to something different. We’re not going to be able to do it easily. The United States even after Trump will still have this kind of burden of feeling that it set itself on a certain course. I do think that we have to be pressing everyone to recognise the Palestinian state, and from there onwards to start making the arguments as to how that state can become a reality. Retain our optimism. Believe that peace and self-determination are possible – but we have to do it by asserting that human rights matter, and that the rule of law matters, and then we might get somewhere. I pay tribute to everybody this morning and we have to keep believing that this can be done. We can do it.
Thank you very much, Helena. Danny, over to you. Some concluding remarks and thoughts?
I’m rather close to events, so I will give a response that’s close to events. One of the people in the audience asked me, what do I think about the Abraham Accords? On October 15th, the first group of Muslim pilgrims came to Haram al-Sharif/the Temple Mount, Al Aqsa, under the Abraham Accords, under the normalisation process, from the Gulf. Now, Pope Francis visited the Temple Mount/Haram al-Sharif, the Holy sites, in 2014 and when he got to Haram al-Sharif/ the Temple Mount he was escorted by the Waqf guards. He went through the gates that were controlled by the Waqf guards, although Israel wanted Israeli security to accompany him through the Israeli “Mograbi Gate”. He was greeted there by Prince Ghazi of the Royal Hashemite Kingdom of Jordan. In 2018, Prince William underwent something very similar. Israel said, we need to have our security and go through the Mograbi Gate. No. Hosted by the Waqf, greeted by a senior Jordanian diplomat on Haram al-Sharif/The Temple Mount – note that I’m using the terminology of both.
The visitors from the Gulf were accompanied by Israeli police showing that the Pope and Prince William had a deeper commitment to international law than they do. I’m an Israeli, I’m a Jew and I’m a Zionist. Normalisation is important to me. My Zionism is the Jewish people assuming our rightful place among the family of nations, but normalisation has to take place in a way that’s compatible with international law. Israel was born out of international law and this conflict needs to be addressed through international law. Even when there are events that on the face of things seem to be so unequal, who can oppose people’s rights to pray? It is being done in a way that is marginalising the Palestinians and sending a clear message, which has been the consistent message of Trump and Netanyahu. Palestinian lives matter less – sometimes they don’t matter at all. We have to harness normalisation and international law to send the counter-message, Israeli and Palestinian lives matter.
Thank you very much, Danny, for those moving words. Victor, very briefly. Have you got a final thought?
I agree with Danny on the issue of Haram al-Sharif/Temple Mount, and especially Jordan’s role as the custodian of the Holy site. I think one of the most important and underreported issues of the contemporary dispute was between Israel and the Palestinians and that the Abraham Accords are somewhat undermining it. I’ll just leave it at that and thank everyone.
Thank you, Victor. Thank you to all our speakers. One final concluding thought: international law does matter. If you doubt it, think of how Stalin took over Lithuania, Latvia, and Estonia but we continued to recognise them as sovereign states throughout the many dark decades of Soviet occupation. When the Soviet Union ended, sovereignty was restored to them. It wasn’t a new sovereignty that came to them from leaving the Soviet Union; it was their old sovereignty that they had always rightfully enjoyed. The same applies to all international law rights of all states and of all peoples, including the Palestinians and the Israelis. Thank you all very much. We will begin again at 1:30. There’s time for a quick lunch break and at 1:30 there will be a panel looking at the role of religion and the Holy places. Thank you all very much. I’ll now hand back to Dee.