UN Meeting on Question of Palestine discusses responsibility of governments in upholding international law

Palestinian woman trying to pass around Israel’s Apartheid Wall in Abu Dis (Arjan El Fassed)


GENEVA — The United Nations International Meeting on the Question of Palestine this morning heard a number of panellists discuss the responsibility of governments and intergovernmental organizations in upholding international law in relation to the implementation of the Advisory Opinion of the International Court of Justice (ICJ) on the construction of a wall in the occupied Palestinian territory.

Georges Abi-Saab, Honorary Professor of International Law at the Graduate Institute of International Studies in Geneva, said States had an obligation to do something to deter a violation such as the building of the wall by cutting off the funds used for that construction. International organizations, particularly the financial institutions, also had an obligation to refrain from contributing to the illegality of measures that could violate international obligations.

Pieter H.F. Bekker, former ICJ Staff Lawyer and Senior Counsel to Palestine in the ICJ Advisory Proceeding, noted that the Court had concluded that the obligations violated by Israel’s construction of the wall were essentially of an erga omnes character. In other words, they were obligations in whose protection all States had a legal interest and which constituted intransgressible principles, or “super-rules”, of customary international law. Thus, existing and aspiring nations alike should strive to uphold the primacy of the ruling.

Monique Chemillier-Gendreau, Professor of Public Law at the University of Paris VII, echoed a similar analysis, saying that the opinion on the illegality of the construction of the wall had an erga omnes character -– having consequences not only to Israel or Palestine, but also to other States and international organizations. The Court had recalled the obligations of all States relating to the issue, thus the opinion, although it was an advisory one, was a declarative law destined to all subjects of international law.

Michael Lynk, Professor of Law at the University of Western Ontario, said the placement of the wall almost entirely within the West Bank, and away from the Green Line, had very much to do with maximizing the inclusion of as many of the large settlements as possible on the Israeli side of the wall.

Marcelo G. Kohen, Professor of Law at the Graduate Institute of International Studies in Geneva, said the Advisory Opinion of the ICJ had marked a milestone in the Middle East conflict. For the first time, the international community could count on a fundamental legal analysis of the conflict, which was pronounced by the principal legal body of the United Nations.

In the debate that followed the presentations by the legal experts, representatives of Jordan, the League of Arab States, Congo, Madagascar, Indonesia and Algeria took the floor, as well speakers for the following non-governmental organizations (NGOs): Humanitarian Centre in Palestine, Human Rights Group in Palestine, Centre of Human Rights of Jerusalem, and French Platform of Non-Governmental Organizations for Palestine.

The International Meeting, which is convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People, will meet today from 3 p.m. to 5:30 p.m. to discuss the role of parliaments and civil society in advocating adherence to international law. A closing session of the two-day meeting will be held from 5:30 p.m. to 6 p.m.

Statements

GEORGES ABI-SAAB, Honorary Professor of International Law at the Graduate Institute of International Studies in Geneva, said the International Court of Justice was clear in its findings on the implication of the issue in question, which had facilitated the work of governments and intergovernmental organizations. The Court had reminded the international community in its Advisory Opinion that there were regular rules and rules that created obligations. The building of the wall had undermined the Palestinian right to self-determination, which Israel had violated. The obligation emanating from humanitarian law had also been violated by the State. The result of the violation of the obligations could not be consolidated by time and could not create another status.

It was important that the Court established its findings. All States should recognize their obligations. States also had the obligation to do something to deter the violation of the building of the wall by cutting off the funds used for that construction. International organizations, particularly the financial institutions, had the obligation to refrain from contributing to the illegality of measures that could violate international obligations. Public opinion also played an important role in putting pressure on respective States to act in accordance with international law.

PIETER H.F. BEKKER, former ICJ Staff Lawyer and Senior Counsel to Palestine in the ICJ Advisory Proceeding, New York, said the Advisory Opinion issued by the Court raised important questions about the legal status of the ruling and the principle of the primacy of international law. There was nothing “anti-Israel” or “pro-Palestine” about supporting that principle. There also was nothing inconsistent about condemning suicide bombings and colonial settlements in occupied territory simultaneously, as he did. To be clear, nobody questioned Israel’s right to protect its citizens against violent attacks that the Palestinian leadership unequivocally had condemned, so long as Israel complied with international law.

International law included both regular norms and obligations of a higher order. The Advisory Opinion of 9 July 2004 differed from other non-binding rulings in that it featured key findings on the highest-ranking norms of international law. The Court concluded that the obligations violated by Israel’s construction of the wall were essentially of an erga omnes character. In other words, they were obligations in whose protection all States had a legal interest and which constituted intransgressible principles, or “supper-rules”, of customary international law. The Court’s findings in the wall opinion were rooted in international law and had the strength of that law. The ruling constituted a most powerful reminder that the question of Palestine, in all its aspects, was subject to international law. Existing and aspiring nations alike should strive to uphold its primacy.

MONIQUE CHEMILLIER-GENDREAU, Professor of Public Law at the University of Paris VII, Paris, said Israel had tried to oppose the competence of the International Court of Justice by pretending that its consultative procedures could be diverted to settle a bilateral conflict in which Israel had refused to go towards a legal settlement of the issue. The Court, rejecting that argument, had put the consequences of its findings beyond the two principal protagonists in the conflict. The legal consequences of the Advisory Opinion did not concern only the General Assembly, which had requested the Court for its opinion. The opinion on the illegality of the construction of the wall had an erga omnes character — having consequences not only to Israel or Palestine, but also to other States and international organizations. The Court had recalled the obligations of all States relating to the issue. The opinion, although it was an advisory one, was a declarative law destined to all subjects of international law.

The Advisory Opinion had reminded all States of their obligations. The obligations incumbent on Israel had been clearly enumerated in detail. The opinion had indicated the massive and prolonged violation of the international law by Israel by building the wall of separation. The building of the wall had violated the right to self-determination of Palestinians, including international humanitarian law relative to human rights. The Court had called on Israel to provide compensation to the victims affected by the damage caused by its actions. The Court had also urged Palestine to respect international humanitarian law. In spite of the Advisory Opinion, the building of the wall had continued.

MICHAEL LYNK, Professor of Law at the University of Western Ontario in Ontario, said the Advisory Opinion had provided clarity to the conflict in the Middle East. If there were no settlements, there would be no need for the wall, at least on the route where it was being built. The placement of the wall almost entirely within the West Bank, and away from the Green Line, had very much to do with maximizing the inclusion of as many of the large settlements as possible on the Israeli side of the wall.

The Israeli political authorities and the Israeli High Court had differing opinions with regard to the Advisory Opinion of the International Court of Justice. The High Court had decided that the occupied territories were governed by political considerations and that territories could be used for security reasons. The High Court had also allowed in the past the building of fences by the military command while looking at the needs and necessities of the local population. The argument of the Government that the occupation was temporary was accepted by the High Court. In addition, the same court had never pronounced on the legality or illegality of the Israeli settlements in the occupied territory.

MARCELO G. KOHEN, Professor of Law at the Graduate Institute of International Studies in Geneva, said the Advisory Opinion of the International Court of Justice had marked a milestone in the Middle East conflict. For the first time, the international community could count on a fundamental legal analysis of the conflict, which was pronounced by the principal legal body of the United Nations. The Opinion had even gone beyond the concrete issue of the illegality of the construction of the wall by pronouncing on the impossibility of forceful acquisition of land, the right to self-determination of Palestinians, the applicability of the Fourth Geneva Convention, the determination of territorial occupation of the West Bank, illegal settlements and the right of Israel to defend its citizens through the respect for international law. The Court of Justice had clearly established the illegality of the settlements by Israel in the occupied Palestinian territory. The construction of the wall of separation, decided unilaterally by the Government of Israel, could not be taken as a provisional boundary.

The representative of Jordan observed that the Court had reiterated the violation of Israel of international customary law. The Court had unequivocally reiterated the application of the Fourth Geneva Convention to the occupied Palestinian territory. He welcomed the election that took place in Palestine that led to the election of Mahmoud Abbas as President. The commitments and understandings made in the Sharm el-Sheikh Summit should be implemented by both parties. Israel had continued to include territories and properties belonging to Jordan and Palestine by expanding its occupation. The peace process that was reinitiated recently should lead to a durable peace in the region.

The representative of the League of Arab States said the continued Israeli violation of the human rights of the Palestinians and other Arabs in the occupied territories had drawn the attention of the international community. Among the multiple violations, the construction of the wall of separation had encircled the Palestinians in their own territories. All States should respect the Opinion of the International Court of Justice. In spite of the Advisory Opinion and the General Assembly resolution, Israel had continued implementing its plan of construction of the wall around East Jerusalem and other Palestinian territories.

Discussion

Following the presentations made by the panellists, participants raised questions on a number of issues. Some speakers said efforts should be made to urge the European Union to apply legal actions with regard to the conflict. The free trade system of the Union, which did not restrict materials exported to Israel, had benefited that State which had imported construction materials used to expand the wall.

A speaker asked whether Article 7 of the United Nations Charter could be applicable to reinforce the law and to end the conflict in the Middle East. He also asked if the peacekeeping mission could be reinforced in the region.

A speaker from a Palestinian non-governmental organization said the “443” road built by Israel did not allow Palestinians to use it and any Palestinian driving or even walking on it could be fined. In addition, since three years and half, a number of villages in the West Bank had been closed off. Some Israeli legal authorities still believed that the occupied territories were “liberated territories” which made the situation more complicated.

The lack of application of the Fourth Geneva Convention in the occupied Palestinian territory was also commented on by a number of speakers who said the inapplicability of the Convention by Israel had made people in the occupied territory suffer.

Reacting, a panellist said the fact that there was no mechanism for the full application of the Geneva Conventions did not mean that the Palestinians were fully deprived of their rights. Without the Geneva Conventions, Palestinians would have been deprived of even more rights under occupation. This was a congenital defect for all international laws as they did not have an implementing arm. Another panellist said the General Assembly had no coercive means to implement its resolutions. Israel had so far rejected the validity of international law applicable to it.

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