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Déja vu in Gaza

About the author
Vera Gowlland-Debbas is Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva.She was formerly Honorary Professor at University College London and Visiting Fellow at all Souls College, Oxford.  

Through the lens of history, remember the famous attempt by Jews to resist the Germans in armed fighting in the Warsaw ghetto? As recounted by The Holocaust Encyclopedia, the Warsaw ghetto was established by German decree on October 12, 1940 and sealed off from the rest of the city. “The ghetto was enclosed by a wall that was over 10 feet high, topped with barbed wire, and closely guarded to prevent movement between the ghetto and the rest of Warsaw. The population of the ghetto…was estimated to be over 400,000 Jews. German authorities forced ghetto residents to live in an area of 1.3 square miles, with an average of 7.2 persons per room.”Vera Gowlland-Debbas is Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva.

She has been Honorary Professor at University College London and Visiting Fellow at all Souls College, Oxford.

It continues to describe how Jewish organizations within the ghetto attempted to keep alive a trapped population that suffered severely from starvation, exposure, and infectious disease and how the miserable food allotments rationed by the Germans had to be supplemented by widespread smuggling of food and medicines into the ghetto. It goes on to recount the Warsaw ghetto uprising in April 1943 when Jews decided to organize resistance against the occupiers using small arms smuggled into the ghetto and homemade weapons. The resistance was finally brutally crushed and we know at what terrible cost...

Today, partly as a result of the shocked reactions to the crimes perpetrated during World War II, fundamental and intransgressible rules and principles of international law, including of human rights and humanitarian law, directed to the protection of the essential values and interests of the international community as a whole, now provide the foundations of contemporary international society.

The obligation of each and every State to prevent their flagrant violation was reiterated in the recent September 2005 General Assembly World Summit Outcome document, in which all States members of the United Nations pledged that: “The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means…to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”, and that “we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by case basis…should peaceful means be inadequate."

How can this duty on the part of the international community be reconciled with its manifest inaction in the current situation of Israeli "shock and awe" tactics, of massive air strikes against Gaza and indiscriminate killing of its population? The UN’s roadmap for Palestine since 1948 includes a spate of Security Council resolutions – all unheeded by Israel – declaring the illegality of Israeli occupation of Palestinian Territory, including East Jerusalem, within its 1967 borders, condemning Israeli use of force, violations of human rights and humanitarian law, including demolition of homes and collective punishment, and pronouncing invalid its measures to change unilaterally the borders of this former mandate and self-determination territory. (See among others, Security Council resolutions 237 (1967), 242 (1967), 271 (1969), 298 (1971), 338 (1973), 446 (1979), 476 and 478 (1980), 681 (1990), 799 (1992), 904 (1994) and 1322 (2000).)

The International Court of Justice – the principal judicial organ of the United Nations - in a milestone Opinion handed down in 2004, (Endnote 1) has determined that the construction of a wall by Israel within these borders is illegal and could be seen as a de facto annexation of parts of the West Bank. It has unanimously, including its US Judge, declared the Israeli settlements in the Occupied Palestinian Territory illegal and a grave breach of the Geneva Conventions, which entails individual criminal responsibility. It has called on the international community as a whole to assume its responsibility to ensure that Israel ceases its illegal actions and make reparations for all the destruction it has caused to Palestinian homes, land and property, as well as not to recognise the results of Israel's illegal actions or to assist it in any way.

The UN Secretary-General’s "mea culpa" in the cases of Rwanda and Srebrenica had underlined that the international community as a whole had to accept its share of responsibility for failing to take action to prevent the tragic course of events. In a recent case involving Bosnia against Serbia, the International Court of Justice underlined a duty of prevention, the failure of which entails guilt and complicity. And in a Human Rights Council statement, the United Nations Special Rapporteur for Human Rights in the Occupied Territories has this to say: "The Israeli airstrikes today, and the catastrophic human toll that they caused, challenge those countries that have been and remain complicit, either directly or indirectly, in Israel's violations of international law. That complicity includes those countries knowingly providing the military equipment including warplanes and missiles used in these illegal attacks, as well as those countries who have supported and participated in the siege of Gaza that itself has caused a humanitarian catastrophe."

Will the inaction of the permanent members of the Security Council, the parties to the Geneva Conventions, who undertake to "respect and to ensure" international humanitarian law, in particular Switzerland as the depositary, the European Union, the pillars of which are said to be based on the rule of law and democracy, and the international community as a whole, mean that this "responsibility to protect” is nothing but a mere pious buzz word, conveniently used only as a cover for furthering interests?

Reactions to such blatant violations of international law would normally take the form of UN and regional sanctions, civil boycotts and criminal pursuit of individuals. Precedents in the region (remember the reactions to Iraq's invasion and occupation of Kuwait and the $26 billion compensation it was forced to pay?) and elsewhere abound. It is ironic therefore that far from measures to ensure Israeli compliance with UN resolutions and international law, the Palestinians themselves over the past few years have been condemned, sanctioned and strangled. Such double standards are totally incompatible with the key principle of the rule of law in international affairs which states that the rules apply equally to all, and can only pave the way for more frustration, incomprehension, anger and violence on the part of the victims.

 

Endnotes
1.The author served as Legal Counsel to the Arab League in the /Wall Opinion./ The case before the Court was argued by such eminent British figures as Professor Vaughan Lowe, Chichele Professor of Public International Law, University of Oxford, Professor James Crawford, formerly Director of the Lauterpacht Research Centre for International Law and Professor of Public International Law at Cambridge (Counsels for Palestine), and the late Sir Arthur Watts, former legal counsel to the British Government (Counsel for Jordan). The written and oral statements may be found on the web-page of the Court. For further reading, see among other commentaries on this Opinion, Vera Gowlland-Debbas, “The Responsibility of the Political Organs of the UN for Palestine in Light of the ICJ’s /Wall /Opinion”, in Marcelo G. Kohen (ed.), /Promoting Justice, Human Rights and Conflict Resolution through International Law/. Leiden, Martinus Nijhoff, 2006, pp. 1095-1119, and Ian Scobie, “Unchart(er)ed Waters?: Consequences of the Advisory Opinion on the Legal Consequences of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine”, 16 /European Journal of International Law /(2005), pp. 941-961.


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