Beyond the Advisory Opinion: Possible Future Strategies

Wide-view of last year’s opening of the Conference of Civil Society in Support of the Palestinian People. (UN/Stephenie Hollyman)


The International Conference of Civil Society in Support of the Palestinian People, reported in the Electronic Intifada on 13 and 14 September, addressed many issues that those of us following events closely are painfully aware of. It also revealed a number of equally familiar, depressing paradoxes and the need for a clear strategy on how to overcome them.

While the importance of international law was reaffirmed, Israel’s continuing and belligerent disregard for it was also made clear. There was broad consensus for a need to end the occupation as a pre-requisite towards peace (the stated theme of the conference), yet little indication that Israel is remotely prepared to make such a consensus.

Most everyone agreed that the wall presented a serious obstacle to peace, yet few called for its immediate dismantling and there was even a suggestion that successfully lobbying for a re-routing of the path of the wall was an achievement. Finally, there was much recognition that Palestinian refugees deserve special protection under refugee law, while considerable evidence was also presented, suggesting that they remain as unprotected as ever due to Israel’s illegal military exercises, including air strikes in civilian areas, such as refugee camps.

These paradoxes raise the need for a clear strategy on how to consolidate the groundbreaking Advisory Opinion in the International Court of Justice on the Wall1 and translate its major legal achievements into advocacy work.

Importance of the Advisory Opinion

The Advisory Opinion was important in a number of fundamental respects. As with every decision it issues, the Court’s conclusions are more than mere rhetoric. They represent the most authoritative statement of the content and applicability of international law, especially in a contested area.

As such, the Court clarified that, notwithstanding the nature of the conflict and that international human rights and humanitarian law were applicable in the occupied territories. More specifically, Susan Akram and John Quigley, in their very useful article analyzing the Advisory Opinion,2 have outlined key areas that were highlighted by the Court:

  • There is a Palestinian people with a right to self-determination.
  • The West Bank and Gaza, including East Jerusalem, are occupied territories under international law, and Israel is an occupying power with legal obligations.
  • Israeli settlements breach international law.
  • The Conventions (of International Humanitarian Law) are fully binding on Israel, and must govern all Israeli actions in the Occupied Palestinian Territories.
  • Israel’s occupation practices violate not only these Conventions, but also the Conventions (of International Human Rights Law).

    In short, the Court made clear that construction of the wall in the Occupied Territories and in East Jerusalem was illegal and Israel should not only stop construction immediately, but also begin the dismantling of it.

    Beyond the wall itself, the construction of settlements in the Occupied Territories (which Israel claims it is protecting in erecting the wall around them) were also declared illegal. The decision further declared that destruction of housing and property to construct the wall was illegal, and that Israel was obliged to make reparations for all damage caused by its construction.

    But the Court did not stop at Israel’s obligations. The overwhelming consensus of the Court felt that all states were obliged not to recognize the illegal situation Israel has created and to refrain from any financial support to Israel in maintaining the illegally constructed wall. It also insisted that states party to the Geneva Conventions of 1949 had “additional obligations to ensure Israel’s compliance” with the Conventions. Finally, the Court declared that United Nations General Assembly and Security Council ought to “consider further actions” against Israel to bring an end to the “illegal situation”.

    Civil society’s role in obtaining the Advisory Opinion

    Civil society has long been active in raising the many issues of human rights and humanitarian law, which came to the Court’s attention in considering the Advisory Opinion. From the very birth of the United Nations, NGOs have, in the words of Eleanor Roosevelt, been part of a “curious grapevine” of interests, ensuring that human rights be placed at the forefront of consideration by the United Nations.

    Throughout the Advisory Opinion, repeated references are made to various international Conventions (Treaties) that civil society organizations have been raising for years, establishing Israel’s persistent violations of international law. For some years, Israel and its legal supporters actively engaged in these discussions, insisting that the Conventions should be interpreted differently. In recent years, however, Israel has more often claimed that they simply “do not apply”. The Advisory Opinion has now laid that argument firmly to rest.

    Peace should not be at the price of human rights

    Perhaps the most significant aspect of the Advisory Opinion is that respect for human rights and humanitarian law does not depend upon a peace settlement. Indeed, the Court made it abundantly clear that a negotiated solution must be done “on the basis of international law” and that these obligations bind not only Israel, but all States to ensure respect for international law.

    As such, any suggestion that a peace settlement is needed as a pre-requisite to respect for human rights is not only immoral, but in total contradiction to international law. It is therefore essential that future peace settlements take these factors into consideration.

    Concrete steps are needed

    Now that the highest judicial authority has made clear that respect for international human rights and humanitarian law is of utmost priority, it is time for concrete follow-up. As reported earlier in the Electronic Intifada (28 April 2004), Sharon’s violent policy presents a “point of no return” for the international community. This political “point of new return” is now reinforced by a legal one.

    As mentioned earlier, an Advisory Opinion is an authoritative statement of international law. It is therefore incumbent on the international community, and in particular individual States, together with the Security Council, to persistently condemn Israel’s violations of international law and to take action against Israel if these violations continue.

    This is, of course a “lawyers argument” and has unfortunately proved to be little more than rhetoric, responded to by Israel’s belligerent position that it is in fact above the law. As such, concrete measures are needed to reinforce the clear and authoritative position of the World Court. In the case of apartheid South Africa, such measures included military and economic sanctions and even temporary expulsion from the United Nations.

    Civil society should use the Advisory Opinion

    However, this does not mean that human rights advocates should abandon international law. Just as in the case of South Africa, the Advisory Opinion has the capacity to give new, authoritative meaning to human rights advocacy.

    As Prof. Susan Akram of Boston University School of Law stated at the UN Conference earlier this week, “the Advisory Opinion not only strengthens human rights guarantees for Palestinians, it places an obligation on States to implement these guarantees”.

    Civil society organizations should use every opportunity to raise the Advisory Opinion in articulating their political positions to their own national governments, in raising awareness amongst the public or in supporting the position of the United Nations to carry out the work for which it was intended and to urge it to take concrete action.

    From opinion to concrete action

    As articulated by veteran human rights advocate Adri Nieuwhof, bringing about change in a country that persistently refuses to abide by international law (such as South Africa during apartheid) rests on four fundamental principles:

    1. A situation of deep crisis
    2. Diplomatic pressure
    3. Economic pressure
    4. Well organized civic structures

    While one might report differently on its consequences (as the media have been prone to bias and misreporting on the Israeli/Palestinian conflict), few would argue that state of deep crisis does not exist in Palestine. Suggesting that these remaining three principles present a clear framework for future action, it is worth examining them more closely.

    Diplomatic pressure

    While some diplomatic pressure has been exercised by individual states and parties to the “quartet”, there has not been nearly enough. In particular, the Security Council has been consistently obstructed by its permanent members, and especially the United States, to take concrete steps against Israel and has done little more than express concern or, in rare instances, condemn violations. In this respect especially, it was hoped that the Advisory Opinion’s broad reference would have an impact.

    However, despite the European Union’s support to a General Assembly Resolution “acknowledging” the Advisory Opinion, it remains unclear whether European governments will embark on a new strategy of defending international law in the context of the Advisory Opinion, or continue their highly ineffective strategy of “quiet engagement”, which in view of Israel’s flagrant disregard for international law might easily be seen as appeasement.

    This will be tested shortly when Sharon visits the Netherlands in a visit presumably designed to lobby the Dutch government in its position as president of the European Union. It is deeply hoped that the government of The Netherlands will be uncompromising in its insistence that the terms of the ICJ Advisory Opinion be respected and implemented and that a failure to do so may well mean further diplomatic and possibly economic isolation.

    Economic pressure

    Beyond modest efforts exercised by the European Union, there has been little in the way of economic pressure by states or official bodies against Israel. The USA continues to subsidize the Israeli economy to the tune of several billion dollars per year, though Israel’s enormous military spending, especially the construction of the wall, has caused a serious crisis in the economy, though it remains stable and trade with foreign countries continues to flourish.

    The one significant government effort in this direction has been taken in terms of an EU trade agreement, known as the “Association Agreement”, which demands that products produced from settlements in occupied areas must be clearly marked as such. Otherwise, they cannot be sold in the European Union. Israeli companies have simply responded by marking all products as “made in Israel”, irrespective of where they were produced.

    Efforts by civil society organizations to insist that the European Union correctly apply the Association Agreement have proved fruitless. There is, of course, a considerable amount of money at stake, and it is possible that organizations have seriously underestimated this. At the UN Conference earlier this week, some activists urged a clearer message be articulated, abandoning the “proper implementation” argument and calling for Israel’s suspension from the agreement.

    In this context, there is a growing view amongst civil society organizations that the only alternative is a consumer boycott, as a prelude to economic sanctions. A small number of organizations have for years been arguing for a boycott. Other recent initiatives have been undertaken in Denmark and The Netherlands (see Electronic Intifada, 17 May 2004) aimed at informing the consumer about the origin of their products, what might be termed a “soft boycott”. Recently, the Presbyterian Church of the USA voted to divest themselves of any economic association with Israel. However, with the exception of a few small voices, there has been reluctance on the part of civil society to endorse a full-scale boycott, let alone sanctions.

    As with the anti-apartheid movement, when the ANC explicitly called for sanctions against South Africa, it may be that civil society is waiting for the PLO to explicitly call for economic sanctions against Israel. Once this occurs, it may be that the call for boycotts and sanctions takes on momentum and some serious economic pressure can finally be applied.

    This may happen sooner rather than later. On 20 August 2004 the prominent Dutch newspaper, NRC Handelsblad and Israeli newspaper Ha’aretz reported that the Israeli Supreme Court had insisted the Israeli government respond to the Advisory Opinion of the International Court of Justice within thirty days. Ha’aretz warned that the consequences of the ICJ Opinion could have potentially considerable consequences for Israel, including government economic sanctions.

    Support to civic structures

    The final factor outlined by Nieuwhof is a complex one in the context of Palestine. During the first Intifada, civic structures were effective in a range of mobilizing efforts, from boycotting Israeli products (by growing their own vegetables) to staging well-organized and prolonged peaceful protests, which brought considerable international attention to the plight of Palestinians. Following the Oslo Accords, the Palestinian Authority was established, replacing many of the pre-existing civic structures with local government structures. Added to this, Israel’s increasing stranglehold over the occupied territories has stifled what little existed of these civic structures. Abroad, Palestinians have faced numerous obstacles in finding safe refuge and the community remains deeply fragmented, though in some countries there has been a higher level of organization than in others.

    Consequently, there is a great need to support and develop civic structures, both in Palestine and in the Diaspora. Donors have been actively supporting NGOs in the Occupied Territories for many years, though much more support is needed. However, there ought not to be complete reliance on donors - indeed, as the anti-apartheid movement illustrated, some of the most successful and enduring civic efforts have been based on the principles of volunteerism.

    For Palestinian communities outside the Occupied Territories, the European Union has begun to support an initiative designed to engage and organize Palestine civic structures, both in refugee camps and in other exiled communities. Known as Civitas and coordinated through Oxford University, the project is busy developing a database of organizations representing Palestinian people all over the world.

    More is needed

    But far more is needed. Reinforced by the authoritative views of the International Court of Justice in its Advisory Opinion, NGOs, social movements and other civic structures have a golden opportunity to build on what is arguably the single most successful legal development in the history of the conflict.

    If not ultimately proved to be a “turning point”, it is hoped that nevertheless solid strategies will soon emerge, gaining optimism (and possibly ideas) from the success of the anti-apartheid movement and consolidating what remarkable achievements civil society has achieved thus far.

    Jeff Handmaker, an international human rights lawyer, co-presented a paper with Susan Akram on legal strategies at the International Conference of Civil Society in Support of the Palestinian People, reported by Electronic Intifada on 13 September 2004.

    Notes:

    1. International Court of Justice, Advisory Opinion, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem’, 9 July 2004.

  • Akram and Quigley, A Reading of the International Court of Justice Advisory Opinion on the Legality of Israel’s Wall in the Occupied Palestinian Territories (PDF) July 2004.

    Related Links

  • Civil society meeting at UN seeks to end Israeli occupation of Palestine, UN News (15 September 2004)
  • Civil Society Conference presented with action plan to support Palestinian rights through international law, DPI/UNGA (14 September 2004)
  • Without peace settlement, both sides face continued violence, UN civil society conference told, DPI/UNGA (13 September 2004)