“I’m having a good time,” Bush said as he shook hands with Secretary-General Kofi Annan before the opening of the 59th session of the U.N. General Assembly where Iraq is expected to share the focus with other humanitarian concerns. Bush’s comment was particularly odd in light of the Secretary-General’s recent statement that he considers the U.S.-led invasion of Iraq illegal.
What has irked Annan along with many of the 191 members of the U.N. General Assembly is that the rule of law has been seriously eroded by the United States and by other nations as they battle terrorism post-Sept. 11, and in the case of Israel, long before. In speaking before the United Nations, President Bush said, “All civilized nations are in this struggle together, and all must fight the murderers.” Perhaps, the President should start by taking a long, cold look at the methods and impact of his own policies.
To understand the milieu of this year’s session and possible future actions, the 2004 UN Conference on Palestine may serve as a precursor of things to come.
Dennis Brutus, poet, teacher, South African Freedom Fighter, and fellow prison inmate at Robben Island off Capetown with Nelson Mandela, summed up the mood at the International Conference of Civil Society in Support of the Palestinian People, sponsored by the United Nations on September 13-15. “America is the elephant in the drawing room that no one wants to acknowledge,” Brutus declared, ticking off strategies that might be used by and on behalf of Palestine which parallel those used in the fight against South African Apartheid. “It is crucial that America’s role in supporting Israel be recognized.”
The main focus of the conference was the July 9th International Court of Justice (ICJ) ruling on the construction of the Apartheid Wall. America’s compromised role as an honest broker in the Palestinian-Israeli peace process was also a subject of enlightened discussion as well as the dual occupations of Palestine and Iraq which are inexorably linked as part of the Neo-Conservative agenda on the Middle East.
In opening remarks Annan was quoted as saying, “The aim of the Conference, with a theme ‘Ending the occupation - a key requisite for achieving peace in the Middle East’, is to provide civil society organizations from all regions of the world with an opportunity to discuss the situation in the occupied Palestinian territory, including East Jerusalem; coordinate their activities; and develop action-oriented proposals in support of the Palestinian people.”
With the International Court of Justice ruling as a tool, conference panelists outlined what may be a seismic shift, the makings of a revolution which may serve to dethrone US-Israeli hegemony and its policies of preemption that threaten world peace and stability. For decades the Security Council had proffered plan after plan regarding the Palestine-Israeli conflict, the latest being the so-called Roadmap to Peace, as evidence that it has continued to exercise its responsibility for the maintenance of international peace and security.
As a result, the General Assembly has been hamstrung no matter how egregious the violations of international law. However, in the case of Palestine the ICJ ruled, “The (Security) Council has failed to exercise its primary responsibility for the maintenance of international peace and security as a result of a negative vote of one or more permanent members, and that the situation is one in which there appears to be a threat to the peace, breach of the peace, or act of aggression.” As a result of this deficiency the General Assembly, based on international law, was authorized “to consider the matter immediately with a view to making appropriate recommendations to Members for collective measures …”
The stalemate was broken. For decades politics not international law has been in the driver’s seat. But in the ICJ case of the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” the power of the General Assembly to by-pass the Security Council and take matters into its own hands was upheld, thus breaking the deadlock imposed by the United States on behalf of its ally Israel. But when you examine the ICJ ruling, as conference participants did, it becomes obvious that far more than the Apartheid Wall is at stake.
The ICJ viewed all the issues that have arisen as a result of Israel’s Occupation of the Palestinian Territories as of one piece in assessing the legal implications of the Wall, including attempts since 1997 to rule on Israeli settlements in the Occupied Palestinian Territory.
Section 120 of the ICJ ruling states, “As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.”
Since 1977, Israel has establishment settlements in the Occupied Palestinian Territory which has no legal validity. Citing chapter and verse the ICJ ordered Israel “to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories.”
The Court also reminded Israel of “the inadmissibility of the acquisition of territory by war.” Furthermore, Charter principles demand that in the interest of establishing a just and lasting peace in the Middle East the Israel armed forces must withdrawal from the occupied territories and terminate “all claims or states of belligerency” and must respect and acknowledge “the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force. It is on this same basis that the Council has several times condemned the measures taken by Israel to change the status of Jerusalem.”
The ICJ ruling upholds the right of peoples to self-determination, and that the existence of a “Palestinian people” is no longer in issue. “Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister and that the Government of Israel recognized the PLO as the representative of the Palestinian people. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its ‘legitimate rights.’”
Ironically, around the time the UN Conference on Palestine collectively put their heads together - noting that the death toll in the occupied Palestinian territory since the start of the intifada had now risen to over 4,000, most of them Palestinians - Mr. Democracy, Israel’s Prime Minister Ariel Sharon was busy doing whatever he could to stamp out the Palestinian right to self-determination.
On the 11th anniversary of the signing of the Oslo Peace Accords, Sharon closed six Palestinian elections offices in occupied east Jerusalem, detained nine workers and seized all voter registration lists. Shortly thereafter, in an interview with the Israeli daily Jerusalem Post, Sharon said that there is a “quiet agreement with the Americans” to expand Israeli illegal settlements. He later defied the world community and the ICJ ruling by ordering the extension of Israel’s Apartheid Wall in the southern West Bank and by instructing Israel’s ambassadors not to deal with the UN-adopted “roadmap” peace plan, declaring that he was not bound by or interested in the UN-adopted “roadmap” plan for peace in the Middle East. Clearly Sharon and his American clone George Bush see themselves as a law onto themselves despite occasional appeals to the world community as they put on the persona of Warriors for Peace in a sea of Islamic terrorism.
But with the International Court of Justice ruling, battle lines now have been clearly drawn. Section 145 spells out the legal consequences for Israel, stating that its first obligation is to bring the illegal situation to an end by ceasing construction of the wall in the Occupied Palestinian Territory. Secondly, Israel is under obligation to make reparation for the damage arising from its unlawful conduct which includes “appropriate compensation for individuals whose homes or agricultural holdings have been destroyed.” And under terms of the Fourth Geneva Convention, “Israel is under obligation to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law flowing from the planning, construction and use of the wall.” Does that mean Ariel Sharon and Company as planners and implementers must stand trial?
During one of the workshop presentations Iain Scobbie, Professor of International Law, School of Oriental and African Studies, London, focused on the role and responsibilities of third parties in the advisory opinion of the ICJ. He said the opinion relocated the peace process within a legal framework. Scobbie focused the attention of conference participants to section 159. “The ICJ had said that States should not aid and abet illegal Israeli activities. Both the wall and the settlements were unlawful. Third States could therefore become liable if those States assisted in the construction of either the wall or a settlement, for instance by granting loans or loan guarantees to Israel for the creation of the wall or settlements. Participation of State companies in such construction was also unlawful,” Scobbie noted.
So how might this impact Bush and Company? Hasn’t the President as well as the United States Congress backed Sharon in all his endeavors and financed these illegal operations through American tax dollars? Might not the United States be held legally responsible for the daily horror visited upon the Palestinian people as a consequence of Israeli state terrorism? Though American troops have not been sent to occupy Palestine the United States funds Israeli activities associated with the construction of the wall. As Bush stated, we all must fight the murderers. Does that include murder by proxy of thousands of innocent Palestinians including women and children who have been gunned down, or suffered missile attacks, been buried under the rubble of their bulldozed homes, or have suffered diseases and died as a result of experimental crowd dispersal gasses, or severe malnutrition and dehydration as Palestinian farmland, livestock, crops and olive groves are ground into dust, and reservoirs and wells breached or poisoned?
According to Scobbie, for some time, politics had been emphasized over the role of legal requirements. “The Court had been told, for instance, to decline giving an opinion, as it could interfere with the peace process. That argument implied that law had no place in the peace process. That view had been decisively rejected by the Court. It had said expressly that law was essential to the question and had identified the legal obligation for all States that any impediment to the Palestinian right to self-determination be removed.”
Scobbie drew the audience’s attention to another section of 159 which states that “all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” The implication was that lawful measures of individual States could take two forms, Scobbie continued.
“States could take unfriendly but lawful action, such as the termination of diplomatic relations and sports or cultural boycotts. Another measure States could use was to play the game strictly by the rules, rather than giving Israel some slack. Third States had a duty not to recognize and not give any legal privileges to settlements within the occupied territories. States could do that, for instance, in relation to preferential trade-agreements with Israel. Those agreements usually use the mechanism of cutting down import taxes. To decide which goods would be covered by such an agreement, the area in which they were produced could be identified.”
“With the ICJ saying that third States had a duty to cooperate in order to reach a settlement of the conflict, the role of civil society was to ensure that States would do it and make it difficult for States not to do it,” Scobbie said.
During the final day of the conference, the Civil Society/NGO council adopted the “2004-2005 Plan for action to support Palestinian rights through international law and the United Nations,” a resolution calling for UN member nations and international bodies to increase their pressure on Israel to put an end to the occupation. Indeed, the final section of the ICJ ruling virtually instructed them to do so by stating that “the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
Thanks to the International Court of Justice ruling, for the first time the Civil Society and Non-Government Organization community is able to play hardball and seriously threaten Israel with far reaching consequences if it fails to comply. The Plan for Action insists that international governments meticulously enforce decisions concerning Palestinian rights and that it is the “responsibility of the international community to provide serious protection, particularly of women and children, to Palestinians living under Israeli occupation.”
Targeted sanctions would urge governments to impose restrictions including arms bans, withdrawal of economic privileges, bans against products manufactured in Israeli settlements and travel restrictions on violators of international law. Meanwhile Palestinian representatives intend to submit a draft resolution on the West Bank separation barrier to the General Assembly that would for the first time include the threat of sanctions against Israel if it does not comply with the ruling issued by the International Court of Justice in The Hague.
In keeping with the Court’s judgment, Secretary General Annan’s comments to the 59th General Assembly do not bode well for a continuation of American and Israeli defiance in the face of international law. “Those who seek to bestow legitimacy must themselves embody it, and those who invoke international law must themselves submit to it,” Annan said. “It is the law, including Security Council resolutions, which offers the best foundation for resolving prolonged conflicts-in the Middle East, in Iraq and around the world. All states-strong and weak, big and small-need a framework of fair rules.”
Genevieve Cora Fraser is an environmental and human rights activist.