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.
Sir Vincent Fean:
Good day, everybody. And welcome to our 1200 plus attendees at this conference. I speak today for the Balfour Project charity, which is hosting this conference and is solely responsible for whatever may emerge from today and tomorrow from our discussion. Our distinguished guest speakers are all independent of the charity and speaking in their own rights.
We seek to raise awareness of Britain’s historic role in Palestine before the birth of Israel. And to affirm that our past gives Britain a unique responsibility to work to advance equal rights for Israelis and Palestinians. We ask our government now to recognise the state of Palestine alongside the state of Israel. I repeat, alongside, with equal rights and crucially with equal recourse to justice.
Today and tomorrow, we will hear diverse views expressed. That’s very healthy. The situation on the ground in the occupied Palestinian territory, what the Balfour Project calls Palestine, is anything but healthy.
We welcome this respite from death and destruction, but unless there is fundamental change, we will witness them again. I believe that implementing international law plus political will can affect positive change. Discuss!
And now may I introduce the person who is going to guide us through the day and for whom the word courteous fits like a glove. I mean, my friend and colleague, the right honorable Dominic Grieve, QC.
We first met in Jerusalem in 2013 when Dominic was Attorney General, the chief law officer of David Cameron’s government. He and I walked the narrow streets of the Old City and marveled at what we saw.
After being Attorney General, Dominic chaired the Intelligence and Security Committee at Westminster. And now he has resumed his legal practice, charity work, and a host of other things.
May I hand over to you, Dominic?
Dominic Grieve QC:
Thank you very much for that very kind introduction. I do indeed have very good memories of that rather extraordinary night walk round, the Old City of Jerusalem. Following a visit to Israel, I then came over to the occupied Palestinian territory, came to stay with you and also went to Ramallah and met with a number of those involved in the Palestine justice system. And it’s a great pleasure and privilege to be here this afternoon, and to act as the host of a number of discussions, which are going to take place.
This afternoon is a short talk from Baroness Hale of Richmond. She probably needs very little introduction. She was a Lord of Appeal in Ordinary from 2004, and then a member of the Supreme Court of the United Kingdom. She was its deputy president from 2013 to ‘17 and she was, of course, most notably its president from 2017 to her retirement in 2020.
She still does judicial work as the member of the final court of appeal of Hong Kong. She was the first from her school ever to go to Cambridge. She read law. She was top of her class, a super academic lawyer and in 1969, and I think when one thinks about this, this is pretty remarkable, she came top bar finals. I think this is probably why she’s been quite proud to use the epithet ‘girly swot’ in respect of her own achievements.
She was also an academic lawyer and a professor of law at Manchester for 18 years before she was a silk in 1989. And then of course, a high court judge in 1994, Court of Appeal in 1999 and with a great interest in human rights.
So it gives me great pleasure to introduce her this afternoon and she is going to speak to us on why the rule of law matters.
Thank you very much. Well, thank you very much, indeed. Dominic. Anyway, in 1917, as we all know, the British Foreign Secretary wrote to Lord Rothschild to say that the UK government viewed with favor the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of the existing non-Jewish communities in Palestine.
The first part of that promise was fulfilled. The second part has not been fulfilled. The rights of the non-Jewish communities in Palestine have indeed been prejudiced. And much of this is in breach of international law.
I come at this issue in the light of my own personal experience, rather than as any sort of expert in international law. I have visited Israel on at least six occasions. Four of these were as part of a delegation of UK judges and lawyers visiting the Supreme Court of Israel. These exchanges take place every three years alternating between London and Jerusalem. The presidents of the court such as Aharon Barak, have become my friends during these exchanges, we have learned to respect the intellectual power of the Supreme Court justices, their commitment to the rule of law and the courage of some of their decisions. Theirs is not an easy task.
Quite apart from the security issues, there is the challenge of working out what it means to be a Jewish and democratic state. Aharon Barak needed security to protect him, not from the Palestinians, but from some members of the ultra Orthodox Jewish community, with whom his views of what this meant were not popular. He wrote this in 1992 after the enactment of the basic law on human dignity and liberty, ‘indeed, the country is Jewish, but not in a Halakhic religious stance, but rather in the sense that Jews have the right to immigrate to it. And they are the essence of the state. I am referring to the humanitarianism, the sanctity of life, social justice, following the true and honest path, preservation of the dignity of humankind, the rule of law and all the other values that Judaism has imparted to the whole world. We cannot lose sight of the fact that a large non-Jewish minority lives in Israel as well. Indeed. The values of the state of Israel as a Jewish state are the same universal values, common to all members of democratic societies, which developed out of Jewish tradition and history’.
So in his view, Israel could be a Jewish state and still respect the rights of the non-Jewish people.
Another of my visits was to deliver the Lionel Kern Memorial Lecture in honour, of the first Jewish Law Lord at the Hebrew University of Jerusalem. My subject was equality, another problematic concept in Israel. It was deliberately left out with the basic law, dealing with human dignity and liberty. One can see why not. All Israeli citizens and lawful residents have the same rights, let alone the residents in the occupied Palestinian Territories.
But to some including Barak equality is an essential component of human dignity. In those early visits, there was still a sense that the Israeli people and the politicians shared that deep respect for the rule of law, which as Barak said, has always been such an important feature of Jewish thought and identity. Whether that included respect for international law, including international humanitarian law, which applied in the occupied Palestinian territories, I’m not so sure.
On my last visit in 2019 at the instigation of Sir Vincent and others, I was privileged to make contact with representatives of the Palestinian communities. At the home of the British Consul General, in effect our ambassador to the Palestinian Authority, we met with representatives of three groups, the Israeli Arabs, the Arabs living in east Jerusalem, which Israel has unlawfully annexed. And the Arabs living in the occupied Palestinian territories on the West Bank, where Israel is building its so-called settlements. Each had some shocking accounts of the inequalities and indignities they faced, which were different for each group. Most shocking of all, was that the West Bank Palestinians had given up on the Supreme Court because they felt that it was no longer able to protect them.
Later on in this conference, we should be learning more about the role of the Supreme Court in the occupied Palestinian Territories.
The next day I visited the Palestinian Authority in Ramallah, the Supreme Court, the constitutional court, and the legal advisor to the president. The indignities inflicted upon the Palestinians wishing to travel between the West Bank and Jerusalem all too apparent. Ironically, the Consul General had asked me to talk to the Palestinian judges about the importance of the rule of law and the independence of the judiciary. All part of the UK government’s wish to strengthen the Palestinian institutions. So I trotted out the standard features of the rule of law, accessible and intelligible laws applying equally to everyone, including the government, which must act within its lawful powers, adequate protection of fundamental human rights, access to justice and independent courts to administer the law. I acknowledged how very difficult this was for them.
In international law, the occupied territories have all the same status, but since the Oslo Accords of 1993 and 1995, the West Bank has been divided into three areas. The Palestinian Authority has no jurisdiction over Area C, which is under full Israeli civil and security control. And it constitutes about 63% of the West Bank. It has full jurisdiction, only over Area A, which is about 18% of the West Bank. And in area B, which is about 22% of the West Bank. There is a mixture of Palestinian civil control and joint Israeli-Palestinian security control, and the Palestinian communities within Areas A and B are geographically separated islands in Area C.
There were of course several elephants in the room, both Israelis and the Palestinians have a very powerful narrative and it is hard for the international community to reconcile the two. Both the Palestinians and the Israelis lay claim to the whole of the land between the River Jordan and the sea.
The Palestinians tried to give me a relief map of Palestine, which didn’t show the state of Israel at all. It is surely right for the international community to call upon every state in the region to acknowledge the existence of the state of Israel. But the Palestinians are having to live under an occupation, which is in blatant disregard of international law.
When I was a student, I found it difficult to get to grips with international law. It seemed to be of a different character from national law. National laws have ways of making people who are subject to it obey them. International law does not have quite the same ways of making the states are subject to it obey. But there is a great deal of international law. And by and large, it is observed because states have to agree to cooperate with one another in the modern world, if it is to work. International carriage of goods by sea, by air and by road are all governed by international treaties, without which they wouldn’t work well. Trade is governed by international treaties, both bi-lateral and multi-lateral. Most states have committed themselves to the protection of fundamental human rights by international treaties. International law is easiest to enforce where member states have agreed that that courts will enforce it against individuals or enterprises. Another visit to Israel for example, was for an academic conference on the working of the Hague Convention on the civil aspects of international child abduction. This has been remarkably successful in getting children back to their home countries when they have been wrongfully removed by one of their parents.
As a judge, I have spent a great deal of time enforcing the international obligations by which the United Kingdom is bound, but some international laws are much harder to enforce. Israel is a member of the United Nations. Under article 25 of the UN Charter, all its members, agree to accept and carry out the decisions of the Security Council.
The Security Council has passed innumerable resolutions dealing with the Palestinian question. It has called for Israel to withdraw from the territories occupied since the 1967 war, it has declared null and void Israel is change in the status of Jerusalem. It has confirmed that the fourth Geneva Convention on the protection of civilians in time of war applies to the occupied territories and called upon Israel to respect it. It has condemned the measures aimed at altering the demographic composition, character and status of the occupied territories, which include East Jerusalem, such as the construction and expansion of settlements, the transfer of Israeli settlers, the confiscation of land, the demolition of homes and the displacement of Palestinian civilians, all of which the UN sees as dangerously imperiling the viability of the two-state solution based on the 1967 lines.
The official UK government’s line is that Israel should abide by international law as expressed in the UN resolutions and the fourth Geneva Convention, that the peace process should be revived, and that the ultimate goal is the two state solution.
However, I note that Human Rights Watch has called for states to, ‘stop assessing the situation through the prism of what might happen for the languishing peace process one day be revived and focus instead on the longstanding reality on the ground that shows no signs of abating’.
So it has various suggestions including that the International Criminal Court should investigate and prosecute individuals credibly implicated in crimes against humanity and governments should do so too where there is universal jurisdiction. There should be an international commission of inquiry to investigate systematic discrimination under oppression, states should impose sanctions such as travel bounds and asset freezes against individuals and businesses should assess whether that goods and services contribute to the commission of crimes against humanity.
Now it’s not for me to tell anyone what they should do. I gave that up when I retired as a judge over a year ago, but I do hope that this conference will do a great deal to help raise awareness of the issues and discuss some practical ways of improving the situation on the ground.
There is a tendency for the international community to focus on achieving a ceasefire when there are active hostilities, as there have been just now, and forget what it was that led to those hostilities. What is really needed is a durable peace time solution, which reflect the rule of law and both of the promises in the Balfour Declaration. Thank you.
Thank you, Brenda, very much for that introduction to our conference and for such a scene setter on the rule of law. I just wondered as I was listening if you could perhaps help the conference in this sense. We in this country have tended now to anchor our understanding of the rule of law on Lord Bingham’s Eight Principles, but it’s probably right to say that even some of those, particularly the eighth, comes in for some questioning various levels, leading to quite a lot of political debates. But I was just wondering in the context of the interaction that you’ve had with particularly the Israeli Supreme Court, if effectively, they subscribed to those same principles in their interpretation of the rule of law, but simply see that its implementation in the particular challenges they see Israel as facing is impossible, or whether in fact they see their own principles of the rule of law in some different way.
Well, that’s a very good question. My impression was that they saw it in the same way that we did. I mentioned most of those eight principles when I raced through them. I think that they believed in the independence of the judiciary. They believed that everybody was subject to the law. I think that the interaction between the guarantees of fundamental human rights and the laws that otherwise might be passed by the parliament was a more problematic area for them, just as it is for us, of course, a problematic area. But Aharom Barak believed that the basic law on human dignity and liberty had a constitutional status that enabled the court to strike down inconsistent acts of the Knesset.
I’m not sure that everybody shared that view. And of course it would be extremely controversial in this country. We can’t strike down acts of parliament nor do we particularly want to do so, but then we haven’t been faced with quite the situation that they are faced with in Israel.
I hope that answers your question. I’m doing my best.
I think it does. I think particularly so because of course we always know with the law, that it can be the rule of law or rule by law, which is a rather different thing altogether and is practiced by plenty of tyrannies as long as they think that they’ve have a legal justification or fig leaf to cover what they’re doing.
There are a number of questions we’ve had through. The one from Anne Marie Clements, which I shall read out, which says ‘with regards to a two-state solution, some voices in a discourse say this is not for the international community overall to decide. Instead, the priority should be the Right of Return of Palestinian refugees. And only once the Right of Return has been realised, the people in Palestine and Israel should be the lead voices in what the state solution should be. But that ultimately this is secondary to the Right of Return, which should be prioritised now.
The Right of Return is of course extremely controversial. And you highlighted that in your remarks, that there are issues over the rights of Palestinians living in Israel, just as much as there are issues relating to the occupied Palestinian Territories, which were of course treated differently by the Israeli government. And I just wondered whether that too was something of which there was consciousness within the Israeli judiciary or whether actually the focus was simply on the conduct of the Israeli government and how they treated the occupied Palestinian Territories.
Well, of course, as they’re busy applying, interpreting, enforcing the law and the great imbalance in the law is that a Jewish person from anywhere in the world has the right to make Aliyah and come and live in and become a citizen of the state of Israel. The same is not true for Palestinians, even if they were in fact displaced from Israeli territory by the creation of the state of Israel. And that is a huge imbalance between the two populations.
But it is a matter of law. That’s an example of a matter of law, which it’s not in a way for a court to be able to do much about. And that is a bit linked to this controversial notion of equality. Because as I said, it was, I think, deliberate that equality was not written into the first of the basic laws dealing with fundamental human rights. And although Aharon Barak certainly thought that it was an aspect of human dignity, as of course he did, there were limits to what he could do with that concept as a result.
It was easier to do it in ordinary civil law terms, rather than in political terms.
You may not wish to answer this question because you also went to Ramallah, as I did indeed, during one of my visits for now as attorney general. I was struck on my visits to Ramallah that actually an understanding the principles of the rule of law in Ramallah seemed to meet, be pretty similar to what we would interpret here.
So that’s the extent there appeared to be at least amongst legal circles, it strikes me, a meeting of minds between how lawyers viewed the duties and rights of the states towards those who are subject to their authority. Was that your impression as well?
Yes. Yes, definitely. In fact, I had been asked to talk about the rule of law and I think the object of that was to assist in stiffening the sinews of the Palestinian judiciary. But I didn’t get any impression that anything that I was saying was any news to them at all. I think they understood it all perfectly. There was a particularly delicate situation because they have both the ordinary courts and a separate constitutional court, which is the continental model that we don’t have in the normal common law countries.
And one got the impression that there might be a little bit of a tension between what the constitutional court said should happen and what the ordinary courts said should happen. But that was the only tension that I detected.
And when dealing with is Israeli judicial system and military courts, because clearly one of the features of the occupied Palestinian Territories is they’re subject to a form of military justice. Is there any recognition that it cannot be a lasting or durable solution to the rights of Palestinians within the occupied territories?
Well, of course this is one of the problems, isn’t it? The occupied territories are occupied territories, so they are governed by the fourth Geneva Convention, international humanitarian law, but that’s about it. From the point of view of the courts of the state of Israel, it will be completely different, of course, if the occupied Palestinian Territories were incorporated into the state of Israel, because then there would be much better protection for their rights.
But for a variety of reasons, that’s not going to happen, mainly demographic ones.
Yes. I think you’re right. One of the interesting topics about the debate that’s going to take place in this conference is a growing sense that if Israel cannot come up with a solution, which recognises the occupied Palestinian Territories as having sovereign rights and an area which can then be turned into a state, then it calls into question whether in fact, the Israelis are operating what is described as an apartheid state, because it’s a state where there are differential rules for different people living subject ultimately to the same jurisdiction, which is the government of Israel. And that’s of course poses some quite complex issues.
I wouldn’t ask you to comment on it, but it’s clearly one of the underlying themes because as people have moved away more and more from a two state solution, and the question is as to whether Israel meets the standards that would be required of a single state.
Well, I’m not going to comment on that, as you can imagine.
I didn’t think you would, but I’m extremely grateful to you, Brenda, for having given your time this afternoon, because I think the scene setting, the theory is actually important. And the fact that ultimately Lord Bingham’s principles, obviously adapted here and there, do now seem to be pretty universally accepted, and accepted in Ramallah as they are, I’m sure, in the Supreme court in Jerusalem. It does give us a first building block on which to operate, because I think that states which disregard that and claim democratic credentials are in a very difficult position to justify their actions if they do, and they have to work around it, which may provide us with a first foundation stone to our debates over the next two days.
I wish you all, every success in your debates. And I hope that some practical suggestions come out of it. So the best of good with your deliberations.