Legal obligations on Palestinian rights

No-one believes the Security Council will take the lead after so many decades in a cul de sac over Palestine.

Victoria Brittain
13 April 2017
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Sculpture of a key over a gate to the Aida refugee camp in Bethlehem symbolises the refugees' right to return to the homes that they fled in 1967. Richard Gray/Empics Entertainment. All rights reserved. Another month, another unprecedented UN report on Palestinian affairs placing the responsibility on all UN member states for the worsening trajectory in the multi-faceted Palestinian/Israeli drama. Decades of US brokered talks between “the two parties” have produced only failure, acknowledged as such by all but a handful of politicians who surely know better. It is time for a new narrative, with new actors taking responsibilities which have been evaded for too long. In the febrile atmosphere of today’s Middle East the world cannot afford a new flashpoint.

Unlike the now notorious ESCWA report “Israeli Practices towards Palestinians and the Question of Apartheid”, withdrawn under pressure from the US and Israel, but widely circulated on the internet, and the subject of days of headlines, the latest report, from the UN Secretary General himself, has been too little noticed. Mr Guterres’ report cites UNRWA’s role in the "mitigation of extremism, its stabilising influence and its contribution to peace and security”.

Last week Secretary General Antonio Guterres gave a highly unusual glowing accolade to UNRWA, the cash-strapped UN agency for 5.3 million Palestinian refugees, describing it as “indispensable”. UNRWA’s chronic and deepening funding crisis nearly brought its schools and medical care across the region to a standstill in 2015. Half a million Palestinian refugee children’s education – in camps in Gaza, the West Bank, Syria, Lebanon and Jordan – was at risk with incalculable impact on already fragile social fabric.

Those weeks of feared real drama sparked a consultation done across UN member states by Switzerland and Turkey over several months. Mr Guterres’ report cites UNRWA’s role in the "mitigation of extremism, its stabilising influence and its contribution to peace and security”. He puts responsibility firmly on all member states to step up regular funding for UNRWA. (The top six donors are the US, EU, UK, Saudi Arabia, Germany and Sweden.)

Voluntary bodies

Very boldly in the current western political climate, the report also urges a long over-due role for international financial institutions such as the World Bank and the Islamic Development Bank, “as well as continued and possibly increased contributions from the UN's regular budget.”

It is a sensitive moment to raise such significant political and financial demands. In two months (June) UNRWA’s mandate comes up for renewal at the UN. The organisation has for 67 years been funded only by voluntary contributions since it was set up by the UN in late 1948 as an emergency response to the 700,000 Palestinians refugees expelled from their homes and left destitute by the creation of Israel in 1948. No-one imagined that nearly 70 years later there would be over 5 million Palestinian refugees, many existing in conditions of utter depravity and hopelessness, especially in Lebanon, Syria and Jordan.

The ESCWA report hit a sensitive nerve as much for its methodology as for its use of the word apartheid. It tackled the enormity of the problem head on by linking the different realities of all these Palestinians under UNRWA’s remit, plus Palestinians living in Israel.

It considers Israeli policies for all Palestinians, living in the occupied West Bank and blockaded Gaza; in East Jerusalem where many Palestinians live precariously as “permanent residents”; inside Israel, where Palestinians have citizenship but not nationality and a system which blocks access to political power as they are not Jewish; and in the refugee camps of Jordan, Lebanon and Syria, from which there is a prohibition to return. The report’s analysis shows a “core purpose of racial domination”. The “strategic fragmentation”, and the use of different laws for these four geographic regions are devised with a “mission of preserving Israel as a jewish state.” The report’s analysis shows a “core purpose of racial domination”.

The apartheid analogy

An apartheid analogy has been made countless times before about Israeli actions – especially over land issues where 93% of the land is state owned and managed by laws which prohibit its use by non-Jews. In particular dozens of prominent South Africans over the years have made an analogy. Decades back Israeli leaders such as Israel’s first prime minister, David Ben-Gurion, and later Yitzhak Rabin, twice prime minister of Israel, warned of the danger of the country becoming “an apartheid state” if it did not “get rid of the Arab population as soon as possible.” Michael Ben-Yair, a former Israeli attorney general, concluded "we established an apartheid regime in the occupied territories.”  In 2006 the title of former US president Jimmy Carter’s book ‘Palestine: Peace, Not Apartheid’ proved explosive, and in 2014 John Kerry warned that apartheid was taking shape, but quickly backed off and apologised for using the word when he was roundly attacked by US politicians and media.

The ESCWA report is largely based on international law and the UN’s 1973 ‘International Convention on the Suppression and Punishment of the Crime of Apartheid’ which was applied to policies and practices ‘similar’ to those identified with the apartheid state of South Africa. 

After apartheid was ended in South Africa, the ‘crime of apartheid’ was included as one of 11 recognised crimes against humanity in the 2002 Rome Statute that established the International Criminal Court.  Apartheid was defined as “inhuman acts committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” In the fifty page report, two US academics, one of them Professor Richard Falk an Emeritus Professor of Law, detail why and how that ‘regime’ applies to Israel. Their findings were reviewed not only by ESCWA’s experienced staff, but by three leading international legal experts, whose points were then incorporated into the report.


Views of the wall of separation near the Aida refugee camp in Bethlehem.Richard Gray/EMPICS Entertainment. All rights reserved.Specific recommendations from the report are to focus attention on its “principal finding that Israel has imposed a regime of apartheid on the Palestinian people as a whole”. Suggestions are made that the UN revive the Special Committee on Apartheid; consider seeking an advisory opinion from the International Court of Justice; while the International Criminal Court should investigate whether the state, government or individuals are guilty of the crime of apartheid.

Brand new settlements

New settlement news in late March underlined the report’s recommendations to the UN and member states to stand by international law and take action when a state flagrantly flouts it. Last December UN Resolution 2334 affirmed that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”. The Secretary-General was instructed “to report to the Council every three months on the implementation of the provisions of the present resolution.” He did, on March 24. The Resolution was a decision by the international community that action must be taken by them on this illegality.

As Hagai El-Ad, executive director of the human rights group B’Tselem wrote immediately afterwards, the Resolution was a decision by the international community that action must be taken by them on this illegality. But that March report of the Secretary General, showed no action taken. Less than a week later Israel announced the building of a brand new settlement in the West Bank between Ramallah and Nablus.

Whatever the UN leadership does or does not do with Mr Guterres’s UNRWA report or the withdrawn ESCWA report in the short or long term, the clarity of the legal obligation of all states to act on the Palestinians’ rights will not go away. Professor Falk’s legal analysis will not go away either. It has brought discussion about the Palestinian situation a long way from the mood of hopelessness around any one single issue focus such as on Occupation, or stateless refugees, or child prisoners in military courts, or the squeeze on East Jerusalem, or the ever-growing West Bank settlements and their road network barred to Palestinians.

Within the General Assembly today which countries will take up the recommendations in the ESCWA report for further study by the ICJ and the ICC and the reviving of the relevant UN Special Committee, or take the action Mr El-Ad noted the UN had committed to last December? No-one believes the Security Council will take the lead after so many decades in a cul de sac over Palestine.

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