A case for the rule of law in Palestine

International law provides a universal set of rules that govern the behavior between states and between the state and the individual. International norms and principles provide a common framework to regulate relations between antagonists, resolve disputes and protracted conflicts, rehabilitate victims of past violations, and ensure that no individual or party is above the law and can act with impunity.

Recognizing the contribution of international law to global peace and security, the Preamble to the Charter of the United Nations, “reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…”

Promotion of the rule of law is a stated objective of western foreign policy in the Middle East. One of the primary goals of European Union is the “creation of an area of peace and stability based on fundamental principles, including respect for human rights and democracy.” The EU affirms the “universality, interdependence and indivisibility of human rights.” Promotion of the rule of law is also one of the main planks of the American Middle East Partnership Initiative.

The International Court of Justice (ICJ), the highest legal forum of the United Nations, opens deliberations today on “the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.” The 15-member UN appointed court is expected to issue an advisory opinion in March 2004, as requested under General Assembly Resolution ES-10/14, 8 December 2003.

The ICJ hearing represents an historic milestone in the struggle of the Palestinian people for the promotion of rule of law and enforcement of universal standards and principles as the foundation for conflict prevention, resolution and a just and durable peace. It is the first time that the international court will hold deliberations concerning the legal aspects of the long- standing Israeli-Palestinian conflict and Israeli measures directed against the Palestinian people. The current ICJ hearing thus represents an important effort to reconstitute a peacemaking process consistent with the fundamental aims and principles upon which the United Nations was founded - i.e., the pursuit of peace and security based on dignity, justice and international law.

The current ICJ hearing is not the first Palestinian-Arab-international initiative that aims to strengthen rule of law in the region, nor will it likely be the last initiative. More recent examples include: the March 2001 UN Commission of Inquiry to Investigate Human Rights Violations Committed by Israel in the 1967 OPT; efforts at the development of universal jurisdiction, such as the case filed against Ariel Sharon in Belgium in order to establish his responsibility in the 1982 massacre committed in the Sabra and Shatila refugee camps (Beirut); the December 2001 Conference of the High Contracting Parties to the Fourth Geneva Convention concerning enforcement of the Convention in the 1967 OPT; and Security Council Resolution 1405 (April 2002) calling for an international investigation into the events in the Jenin camp and the 1967 OPT, including allegations of serious Israeli breaches of international law.

Despite these and other initiatives, effective promotion and strengthening of rule of law in the region is limited. Western states active in the peacemaking process, led by the United States, continue to advance political initiatives and ‘peace plans’ that sideline or exclude international law. Recent examples include the Mitchell-Tenet-Zinni ceasefire plans; the Road Map; growing US support for Ariel Sharon’s plan of ‘coordinated unilateral disengagement’; and the unofficial Geneva understandings. This approach, which goes back more than fifty years when the UN General Assembly rejected a request for an ICJ advisory opinion concerning the legal authority of the UN to issue and enforce recommendations on the future status of Palestine, is based on the assumption that international law will “only complicate the efforts of the parties to achieve a settlement” of the Israeli-Palestinian conflict, and a resignation among some members of the international community that it is not possible to influence US policy in the region.

Israel’s persistent objection to initiatives that aim to strengthen rule of law in the conflict stems from the fact Israel does ‘not have a case in court’. Mass displacement, dispossession, and occupation of the Palestinian people cannot be justified on the basis of international law. International law, therefore, may lead to unacceptable political outcomes. In April 2002, Israel’s external legal advisor, Daniel Bethlehem, an expert in international law at Cambridge University, advised the government to suspend all cooperation with the UN investigation into the events in Jenin: “If the committee’s findings uphold the allegations against Israel - even on poor reasoning - this will fundamentally alter the dynamics between the Israeli and Palestinian leadership and may make it impossible for Israel to resist calls for an international protection force, the immediate establishment of a Palestinian state and the prosecution of individuals said to have committed the alleged acts.” Bethlehem proffered similar advice regarding the ICJ deliberations on the separation/apartheid wall.

The lack of respect for rule of law has led to a situation whereby the Israeli-Palestinian peacemaking process continues to be governed by the arbitrary use of power. It has promoted a belief within Israeli society and among successive Israeli governments that Israel’s policies are ‘above the law’, thus triggering public outrage whenever this notion is challenged or contested. At the same time, this approach has alienated large sectors of Palestinian civil society from the quest for peace based on the universal principles of international law, contributed to the growth of racist-nationalistic and fundamentalist- religious streams in both Israeli and Palestinian society, and is the major cause for indiscriminate violence widely perceived, among both communities, as an alternative and more effective means for ending the protracted conflict in the region.

The last five decades provide more than sufficient evidence that this approach undermines and does not facilitate a comprehensive, just and durable settlement of the conflict. The Palestinian people, however, will continue to demand and struggle for rights and initiate efforts that promote the rule of law, because international law is the only universally acknowledged standard for minimal justice. Ultimately, the struggle of the Palestinian people for respect of the rule of law represents the essence of our struggle against Zionist colonization of Palestine in all of its forms - e.g., settlement, land confiscation, displacement, the wall, etc. - since its beginnings in the early 20th century. It is the only option for the Palestinian people to achieve freedom and self-determination in line with our vision of a just peace and life in a society ruled by universal, secular values and democracy.

Therefore, the quest for respect and enforcement of the rule of law will remain on our agenda, at the ICJ, and beyond. The lessons to be learned from the eventual outcome of the current ICJ initiative will represent a cornerstone in the Palestinian struggle for freedom, justice, and durable peace. The support of European governments and western civil society, will be a major factor in shaping our future achievements - and shortcomings - in this struggle for a just, democratic and enlightened future for the people in the region, including its displaced, dispossessed and refugees. It is a struggle that reaffirms, together with the peoples of the United Nations, “fundamental human rights, the dignity and worth of the human person, [and] the equal rights of all men and women”.

BADIL Resource Center aims to provide a resource pool of alternative, critical and progressive information on the question of Palestinian refugees in our quest to achieve a just and lasting soluton for exiled Palestinians based on their right of return.

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