Video and Edited Transcript
Nidal Sliman & Phyllis Bennis
Transcript No. 412 (5 August 2014)
5 August 2014
The Palestine Center
Molly Robertson: Good afternoon. I’d like to welcome everyone here to he Palestine Center, both those who are here and everyone tuning in to the live stream. The interns here at the Palestine Center; Rebecca, Paul, and myself, Molly, are proud to present the end of our summer lecture series, entitled “Palestine Abroad: The Role of the International Community in the Palestine Issue.” Previous lectures have covered the growing international BDS movement as a new way to put pressure on lawmakers to change policies that harm Palestinians and the role of foreign states in the peace process between Israel and Palestine.
Today’s lecture is the third and final in the series and is entitled “International Organizations: A New Forum for Discussion,” with Phyllis Bennis and Nidal Sliman presenting. Though today is the last panel in our intern series, the Palestine Center organizes events consistently throughout the year. On August 14th, Samer Abdelnour will be the speaker for “Understanding Israeli Apartheid,” an event that will explore the topic of Israel and the apartheid analogy. We encourage everyone interested to RSVP on our website, thejerusalemfund.org.
Our event today,“International Organizations: A New Forum for Discussion,” will investigate the role that international organizations such as the United Nations and International Criminal Court have played in the Palestinian issue. Although Israel has violated international law several times, Palestinian attempts to gain recourse through international organizations have not yet been successful, in large part because mandates and resolutions created by the United Nations are fairly difficult to enforce. Despite this apparent inefficacy there has been a growing Palestinian political interest in gaining active membership in these organizations. Here to discuss what greater participation of international organizations could mean for the future of Palestinians are Phyllis Bennis and Nidal Sliman.
Phyllis Bennis directs the New Internationalism Project at the Institute for Policy Studies. She is also a fellow of the Transnational Institute in Amsterdam. She has been a writer, analyst and activist on Middle East and UN issues for many years. In 200, she helped found and remains on the advisory committee of the U.S. Campaign to End Israeli Occupation. She writes and speaks widely across the U.S. and around the world as part of the global peace movement. Her books include Understanding the Palestinian-Israeli Conflict: A Primer, and Calling the Shots: How Washington Dominates Today’s United Nations, and she continues to serve as an informal adviser to several top United Nations officials on Middle East and United Nations democratization issues.
Nidal Sliman has more than 18 years of experience in international law, human rights, and international trade and development. He received his bachelors of law and masters of law from the Hebrew University of Jerusalem and completed a doctorate in international human rights law summa cum laude from Notre Dame University Law School. He worked as a legal adviser at the Negotiations Support Unit and advised UNESCO and the Palestinian Authority on legislative reforms to protect Palestinian cultural heritage. He was the Policy Reform Team Leader on the Palestinian Investment Climate Improvement Project focusing on business-enabling environment and trade reforms at Chemonics International. Without further ado, I’d like to introduce our first speaker, Phyllis Bennis.
Phyllis Bennis: Thank you, Molly, and thank you all for coming out on this rather steamy afternoon. If you’re not in Washington, don’t come. Thanks to The Palestine Center always in the consistency of The Center in running these kinds of projects and bringing people together for discussions of issues and topics that are too often ignored in this city.
You know the question of the role of international organizations in the question of Palestine should be an easy one, in a certain way. It was the United Nations that created the State of Israel, the United Nations that divided historic Palestine and the United Nations that said there should be an “Arab State.” What’s the big deal? Well the problem is none of those things happened in the way they were supposed to happen. And things that should happen at the United Nations, the centrality of the United Nations in leading international diplomacy on this issue, which is, perhaps, more than any other longstanding international problem a problem that is recognized as an issue for and of the United Nations, somehow is not allowed to be brought to the United Nations. So we have a myriad of examples.
I want to say one thing first, when we started talking about this event it was before the current horror that is going on in Gaza had begun. Gaza was already in horrific shape because of the occupation, the occupation which is denied. ‘We pulled out of Gaza in 2005, we pulled out all our settlers we pulled out all our soldiers how can you say it’s occupied?’ Well because we, unlike the Israelis, rely on international law, and international law is very clear that occupation is defined on the basis of control, not on the basis of how many soldiers happen to be in any given place at any given time. And from the vantage point of control; Gaza remains occupied. That meant that Gazans are sealed into a large outdoor prison, 1.8 million people who are not allowed to leave. There is a wall, we hear a lot about the West Bank wall but we don’t hear as much about Gaza, which is completely walled in on all the Israeli border areas. That wall is patrolled by Israeli soldiers. It’s also a military wall with gunsights, electric fields, etc. The airport in Gaza, of course, was bombed years ago by the Israelis and has never been allowed to be rebuilt. The skies are patrolled not by Gazan aircrafts but by the Israeli Air Force. The seas off the coast of Gaza are patrolled not by Gazans, or Gazan fisherman even, but by the Israeli Navy. Gaza remains occupied, but the recent four weeks of the Israeli assault on Gaza has made the situation so incomparably different.
One of the things it means we have to talk about, perhaps a different way than we might have a month ago, is the difference between the role of the United Nations now and the role of the United Nations during, for example, Cast Lead; the three week long war that Israel waged against Gaza in 2008-2009 when 1400 Gazans were killed and 13 Israelis, of whom seven were soldiers and four killed in so called friendly fire. And the role of the United Nations at that time was similar but different. Similar in the sense that that time, like now, the United Nations was not able to play the role that the Charter gives it. The Charter of the United Nations, the fundamental core of international law, says that the role of the United Nations is to end the scourge of war. Period. Not to end the scourge of war when the victims are anyone other than Palestinians: because we don’t really have to pay attention to Palestinians. It doesn’t say that. It says the work of the United Nations, the goal of the United Nations is to end the scourge of war. But to do that the United Nations has to be allowed in; they have to be allowed to play that role; they have to have the power to impose a ceasefire when one or another warring side decides they don’t need a ceasefire yet. So that’s the same.
What was different in 2008-2009, there were many differences, but in both cases Gaza and the governing forces in Gaza led by Hamas were quite isolated. That was not the case in November 2012 during the much shorter Israeli assault in which Gaza was not isolated, when the government of Gaza was joined by the foreign ministers of half a dozen Arab countries, by the Prime Minister of Egypt who came to gaze and to stand with the people of Gaza under the Israeli bombs. We aren’t seeing that this time around. The government of Egypt is essentially collaborating with Israel in maintaining the siege of Gaza. None of the Arab governments are prepared to support the people of Gaza. So Gazans once again stand alone. Not entirely and certainly not in the case of people; but when we talk about governments and the United Nations, Gaza and the people of the West Bank and East Jerusalem, the other parts of the occupied territories, as well as the refugees, as well as the second, third and fourth class citizens of Israel that happen to be Palestinians; Palestinians largely stand alone.
Why is that? At this time when Palestine is recognized as a state, it even, unlike Israel, has borders. The 1967 borders are recognized by the United Nations as the borders of Palestine. Israel is the only country in the United Nations that has never declared its borders. It says, ‘we haven’t figured them out yet,’ meaning; ‘we’re still expanding, we still want our borders to go further.’ So those things are the same despite the significant differences we now have in terms of Palestine’s role at the United Nations, its credibility and its credentials at the United Nations, which are very different. But what still has not changed: Palestine remains the longest running problem that belongs to the United Nations and it is at the same time the greatest failure of the United Nations; the longest lasting failure of the United Nations. The United Nations is supposed to be responsible for Palestinians until they have achieved their inalienable rights. Not until they achieve something that somebody might call a state, because you know you can call anything a state. That doesn’t make it viable, doesn’t make it just, doesn’t make it sustainable, doesn’t make it any of those things. You can point to some bits of territory that are not contiguous, you can imagine it’s like Swiss cheese: the Israeli controlled areas of the West Bank and East Jerusalem are the cheese, the Palestinian areas are the holes, meaning they are the parts that are not contiguous. The Israeli territory is now contiguous, you can get from one place to another.
Ariel Sharon, the late-former Prime Minister long known as the “butcher of Beirut” for his involvement in the slaughter of citizens and civilians, Palestinian and Lebanese, during the war of 1982, was very creative when it came to diplomacy. He invented this term, which I always thought was quite brilliant, he talked about “transportational contiguity.” It means if you can get from there to there, you’ll say it’s contiguous. Even if you have to fly in a helicopter from one point to another. Even if you have to go in an underground tunnel. Even if you have to go up on a bridge over somebody else’s land. Even if the land doesn’t actually touch each other if you can get from there to there, we’ll call it contiguous. Sorry, it doesn’t work; that’s not going to make a state. You can call it a state, give it a telephone code, a passport and postage stamps, that doesn’t make a state.
A state means control by the people who live there of the contiguous territory of the entire population. Crucially it means control of the use of force, that’s what every state does. They control, in this country we don’t do it very well, as anybody who sees how our country is flooded with guns knows we don’t do that very well at all, but that not for the lack of ability to do it it’s the lack of political will. But the problem for Palestine is that nobody is even talking about allowing Palestinians to have control over violence in their territory. “Everybody knows” Palestine will be disarmed from the outside and it will be Israel that maintains the control of force in violence in any Palestinian state. So Palestine, from the beginning, was defined by the United Nations as a “problem,” the “Palestine Problem.” Then it was changed to a “question”, so now it’s the “Palestine Question.” I just finished doing some work for the United Nations rewriting their book on “The United Nations and the question of Palestine.” Really? Is it still a question, 65 years later? Don’t you have the answers already? I thought we did but apparently we don’t, apparently it’s still a big question at the United Nations. And it’s defined as a question because none of the answers that make sense were ever allowed to be imposed.
So when you look at the United Nations Charter, the question is “why don’t we just go with what it says?” Well the answer lies just about half a mile down the road; the State department, the White House, the Congress; those are the forces that determine how the United Nations Charter is to be defined and how it is or is not allowed to be implemented. So that’s the problem that we face today, the United States goal in the United Nations is based on its special relationship with Israel, which began in 1967. The United States had a perfectly good, supportive relationship with Israel before 1967. The United States supported the creation of Israel, supported the partition agreement in the United Nations, but its relationship was quite tactical. It wasn’t so close. It took the 1967 war for the Pentagon to look and say ‘wow, we could do business with these people.’ And business, in fact, became the operative conception of the relationship.
The Pentagon looked at what the mythology said was tiny, plucky Israel defeating six Arab armies. Now we know that didn’t happen. Four of those big Arab armies didn’t even fight but whatever, it was clear the Israelis did pretty well militarily, they defeated the other side. After six days they controlled all the territory. Palestinians had been left with 22 percent of historic Palestine, now they were left with zero percent. So there is now one government in control of the territory of historic Palestine that includes the state of Israel, the West Bank, Gaza, and East Jerusalem. Together they made up the old Palestine Mandate that was turned over to the United Nations and it was that law of the United Nations that divided historic Palestine.
So what does it mean when you have one government that controls all of the territory but has different sets of laws governing different populations within that one territory? That’s the legal definition of apartheid. Not because the Israeli version of apartheid is the same as the South African version; it isn’t. It’s very different for a whole host of reasons I’m not going to get into here. What they share is that they both stand in violation of the International Covenant Against the Crime of Apartheid, which is a United Nations document signed by the majority of countries in the world. Not we should mention, by our own. But that’s what we have to look at.
So the question of how to look at the situation in Palestine is not just “how do we get back to the two state solution, how do we get everyone back to the table?” I can promise you, somebody will be back at the table and it will fail again. Not because people don’t understand each other’s narratives, not because Israelis and Palestinians don’t get along; it’s because it is going to be based on the failed diplomatic approach of the last 23 years. Going from 23 years of failed diplomacy to 24 years is not my idea of likely success. It was a great scientist who once said ‘the definition of [insanity] is doing the same thing over and over again a expecting a different result.” That’s why I called this last round the Einstein round of talks. They did the same thing and expected it to be different. Why? Because this time it was Obama and Kerry doing it instead of Bush doing it. Really? You think the rest of the world really cares who’s in the White House that much? No they don’t. So that was a huge problem and we will probably have to go through that again once or twice until we finally get back to the point that says ‘that’s not how you solve the question.’ You answer the question the way the United Nations should have answered it years and years ago: on the basis of human rights, international law, and equality for all.
Now the question of the arrangements; one state, two state, red state, blue state; that’s not the business of the United Nations. It’s not the business of us in this room except for those of us in this room who happen to be Israelis or Palestinians. People who live there get to choose the arrangements. The rest of us don’t. I’m a Jewish girl from California, I don’t get to say how many states people should have half a world away. I don’t live there, why is it my business? It’s my business, sort-of, because I pay taxes in this country. That’s the way everybody in this room has the right to say to our government; “let the United Nations be the central actor,” rather than these situations we have seen. There are so many examples of how the United States relies on its goal of this special relationship to ensure that the United Nations is not allowed to play the major role.
So what does that look like? Let’s look at the history of the United States veto. Since 1970, the United States has cast far more vetoes than anybody else in the Security Council. But if you count them up, you will see that two-thirds of those vetoes were in defense of apartheid policies either in South Africa or in Israel. Two-thirds of United States vetoes cast in defense of apartheid. You can look at the Madrid Peace Talks in 1991, a lot of people point to that as the beginning of the current phase of diplomacy. Big international conference held at the Crystal Palace in Madrid, it was “the issue.” I look around the room and I see most of you are old enough to remember that, from 1991. At those talks, there was all this talk about how this is the first time there’s an international conference. Well it wasn’t. There was an international day that opened it up and then it was divided into these working groups which was a problem because the Palestinians weren’t allowed to have their own representatives, they had to go through the Jordanians. But more important than that even, the Israelis were promised by the United States that the representative of the Secretary General of the United Nations would not be allowed to speak, that he would be allowed to talk to people in the halls and report back to the Secretary General but would he not be allowed to speak. That was the official position of this so-called international conference.
In 1994, Madeleine Albright, her goal for that year stated in the United States’ letter to the General Assembly that they write every year, was to get rid of all the old resolutions on Palestine. They were irrelevant, and now that Oslo was under way, they shouldn’t be on the United Nations agenda because they are being discussed by the parties. And she specifically mentioned settlements, refugees and Jerusalem; the three most important issues that were not under discussion at Oslo, that were deliberately postponed. So she just got up and lied and nobody said a word except ‘ok we’ll just do all those things to get rid of all those resolutions.’ International law is limited by the law; it is limited by political will. And that’s where civil society has a role to play. To re-establish the legitimacy and operational ability of the two-thirds to be at the center of what it’s going to take for real protection of Palestinians.
We hear a lot in the two-thirds about what they call “R2P”: Responsibility to Protect. It’s the new buzzword around the two-thirds for the past six or seven years and the idea is “all of this stuff that we used talk about humanitarian intervention, that was really just a cover for the major powers intervening in everything they chose and giving it a humanitarian gloss,” and you want to say “yeah you think?” Obviously that’s what it was but the problem is this isn’t any different. So lots of people were writing about how the so-called Responsibility to Protect isn’t going to work because it is only going to be used for those interests of the powerful countries. And I thought at the time what we should do instead of getting rid of R2P, get rid of it because it’s not legitimate and doesn’t reflect any kind of international equality, we should actually demand that it be the principle that’s used to provide protection for Palestinians. Then we would see how popular R2P really is at the United Nations. Because the idea of providing real protection when the force that you are protecting against happens to be the closest ally of the most powerful country in the world would provide a whole new challenge for the United Nations and the rest of the world.
Very quickly I would like to mention a couple more things and then we can get back to any of this in the questions.
The role of the United States right now is complicit in Israeli violations. That raises all kinds of questions about the role of the United States in the international organizations, from the United Nations to the International Criminal Court, where of course it has still not been willing to sign on as a full member on the Rome Treaty to establish the Court precisely because the United States is determined that its soldiers and officials will never be held accountable. For that reason, they signed off on these bilateral agreements with countries, particularly the poorest countries and particularly African countries, saying ‘if you turn over any American citizens, soldiers, anybody, to the international court you will lose all aid you might ever get and we will bring other unspecified pressures to bear on you so don’t even think about doing it.’ And then there was what was called ‘Invade the Hague’ law which was in fact passed, which basically say that if any United States official is actually arrested by the International Criminal Court and imprisoned in the Hague, the United States will invade the Netherlands and get them out: we will support our troops. So this is the US view of what international law and the United Nations means.
The question of accountability is fundamental. Israel is not held accountable either from the Goldstone Report around Cast Lead or the other myriad of reports that were done. And at the moment it’s not going to be accountable yet until something changes. Not because they’re not, well I won’t say they’re guilty because we haven’t had a real investigation, but not because there can’t be an investigation of potential war crimes but because they are protected by the United States. That’s what has to change and that’s what brings it back to Washington. This isn’t an issue for the United Nations; this is an issue for us because, and this is my last point, the role of civil society, both in the United States and globally is crucial for any possible way of keeping accountability at the United Nations, for keeping the legitimacy of the United Nations. We need the United Nations to be able to act on behalf of its Charter that says its role is to end the scourge of war. It has to be empowered to do that. When the human rights council votes, I think it was 38 “yes,” a few abstentions and 1 vote “no,” that said no there should not be an investigation of war crimes, by all sides I should note. Not only by the occupied power but by the occupied population as well, which I agree with. Everybody responsible for war crimes should be held accountable. The United States said ‘no, we can’t do that, we can’t allow it.’ Luckily, they don’t have a veto, but they do have economic, political and diplomatic pressure that they can bring to bear on any country that dares to challenge them on these kinds of issues.
So that’s where we come back to the role of civil society and organizations like The Palestine Center that are a part of bigger organizations. The United States Campaign to End the Israeli Occupation now has over 400 organizations around the country, the International Coordinating Network on Palestine, which is the broad global network of organizations accredited to the United Nations who work on the issues of enforcing international law and keeping the United Nations as central; who work with the special rapporteurs on human rights in Palestine; who work with the Human Rights Council; who work with the General Assembly when we can get access etc. These are the organizations that are going to make a difference in changing that understanding of what does the law say, whether it’s the United Nations Charter or the Universal Declaration of Human Rights, what does the law say versus how does it get interpreted, enforced, or ignored and therefore violated by our own government. Thank You.
Nidal Sliman: Thank you, Phyllis. It’s great to be here, I’m going to try and be brief as much as I can.
It’s great be here at The Palestine Center again, to talk about Palestine and international organizations. I will try to be brief, as I mentioned, to allow for more questions and answers. The topic is really the potential future role, Phyllis focused more on the history and why the UN didn’t work so far. The focus of my presentation will be on the potential future role that international organizations can play in ending the occupation and protecting human rights in Palestine. The focus really will be on the main international organizations and mechanisms that can likely advance a peaceful and just resolution to the conflict. Here’s the summary of options that Palestine has and can have in the future: there’s UNESCO of course, that we are all aware of and there are other United Nations specialized agencies that Palestine can join. There’s the International Court of Justice, there’s the International Criminal Court and there’s also the recent call by Palestine to place it under the trusteeship of the United Nations Charter.
Now we all know that membership in an international organization doesn’t not produce peace agreements, right? Proactive involvement; advocacy in international organizations should be a part of a national liberation struggle aimed at effectively utilizing international law and diplomacy in order to first of all expose the violations and demand just and effective remedies to these violations. Uphold third states to responsibility to comply with and enforce international law, and there are of course many challenges to achieve all of this, but after all we have to remember that law is a tool for the struggle for justice and human rights and it cannot be the answer to all problems and challenges.
Article 1 of the United Nations lists the main purpose of the organization. This makes the United Nations a forum where collective action is taken to first of all maintain and remove threats to peace, uphold the role of international law, protect human rights and promote the peaceful resolution of conflict through collective international cooperation. Full United Nations membership for Palestine will provide it, as any other state, with the right and opportunity to be heard and take part in this important intergovernmental organization.
I want to mention briefly the statehood issues. The existence of states in international law is a matter of factual determination. United Nations General Assembly resolutions do not create states per se but they help to prove and entity that has: one, a permanent population; two, a defined area or territory; three: the government has the capacity to enter into international relations with other states. The recognition of state is a political matter and should be separate from the existence of states under international law. Currently there about 140 states that have recognized Palestine as a state since it declared independence in 1988.
I will briefly talk about the process for becoming a full member of the United Nations. The most important section is Article 4:2 of the Charter which says the admission of any state in to membership in the United Nations will be affected by a decision of the General Assembly upon the recommendation of the Security Council. Palestine, as we all know, officially applied for United Nations membership in September 2011 but its application has been effectively blocked by the United Nations Security Council’s committee on admission of new members. And that’s basically because of political reasons and the threat of the United States to use its veto power in the Council. The legal background of this is that in 1950 the International Court of Justice, which is the principal judicial organization of the United Nations, has advised that the General Assembly can only admit new members upon the recommendation of the Security Council. And that decision wasn’t really accepted by many, including a judge that dissented and said in his dissenting opinion that a ‘single vote would thus be able to frustrate the votes of all the other members of the United Nations, and that would be an absurdity.’ Some have proposed to amend article 4:2, however, many others believe that there’s no need to make an amendment to the Charter and the current Charter should be allowed and can actually not provide members of the Security Council with veto power.
The International Court of Justice opinion, however, has shaped the practice of the United Nations since 1950 and without its reversal, or a new Security Council recommendation to admit Palestine, the Palestinian application will effectively be blocked. Now, in December of 2012 the General Assembly of the United Nations upgraded Palestine’s status to “non-member state.” We all know that many states have voted in favor and only nine voted against, which is less than 5% of the United Nations members. United Nations General Assembly resolutions are recommendations under the Charter, but their importance goes beyond granting Palestine with almost all procedural rights and privileges, except maybe the right to vote. Why is that? Because they reflect the views of the international community on normative issues. They also serve as evidence of customary international law. As my colleague Valentina Azarov rightly observed, the real legal value of Resolution 67/19, which credited status to Palestine as a state, is in its answer to the broader looming legal question as to its status as a state in international law. So that has been resolved, because of the so many countries that voted in favor of the resolution, now the resolution has direct impact on Palestine status and standing vis a vis third states. Palestine may ratify any international agreement that is deposited with the United Nations Secretary General under the Vienna formula or the old state formula, which is basically in practice that the United Nations Secretary General has been seeking General Assembly guidance when statehood is disputed or unclear.
Now a note on UNESCO. In October 2011, Palestine became a full member of UNESCO and that meant an affirmation of Palestine’s status as a state. It also meant that it is able to join international organizations and to ratify a list of international treaties deposited with the United Nations such as the Rome Statute of the International Criminal Court. It also enhanced the status, or the standing of Palestine to pressure third parties and international actors to demand Israeli compliance with their international obligations.
In addition to the United Nations’ constitution, Palestine has ratified eight treaties and among the most important ones is the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. It also ratified the 1970 Convention on the Illegal Trade of Cultural Properties as well as the 1972 World Cultural and National Heritage Protection Convention. Now there is, as I mentioned, eight of them. I’m not going to go through them but they’re listed up there.
In addition, as I mentioned earlier, Palestine now has enhanced legal standing to demand that third states seize and return artifacts illegally removed from Palestine and to prosecute crimes against cultural heritage. Statehood annexation to international treaties can afford protection for rights but they also entail obligations, so we also have to be aware of that. Palestine is required to define its national legal system and relevant institutions according with its obligations. Its needs to do that to deter domestic violations and further its standing in third countries and international institutions to contest prevent and take measures against unlawful Israeli conduct.
Now on treaty ratifications. Specifically, as we mentioned UNESCO membership and also United Nations General Assembly resolution 67/19 gave Palestine the right to ratify treaties and that enhances its standing vis a vis third states and it also improved its bargaining position vis a vis Israel. Although many might think its minor, I think it’s important now that Palestine is negotiating a peace agreement as an occupied state and not as an entity or an organization, and that as you know is very important in international law.
The UNESCO membership and also the General Assembly resolutions have strengthened the right to join international treaties and organizations. As of April 2014, about four months ago, Palestine has ratified 15 international law treaties, human rights and humanitarian conventions and treaties. Many of them are very important, including the Geneva conventions. Many of these treaties, as I mentioned, enhance the protection of Human Rights in Palestine but they also provide it with additional mechanisms to expose and pursue remedies for human rights and international law violations. Accession to treaties will provide Palestine with standing to demand from Israel and other states to honor their obligations and support the rule of law.
It’s also important to mention that, theoretically at least, there is a way for Palestine to join the International Court of Justice. United Nations members are parties to the International Court of Justice Statute, which form the world court as we all know it. However, members of the United Nations can also be admitted upon the decision of the General Assembly upon the recommendation of the Security Council. The United Nations is likely to treat the recommendation under this article, however, similar to Article 4:2, meaning that the General Assembly would not be able to approve an application to join the International Court of Justice without a Security Council recommendation.
However, there maybe is a way out of this. An interpretation that does not recognize a veto power seems to be more in line with the object and purpose of the United Nations that calls, as we all know, of the “peaceful resolution” to international dispute. And if you allow countries to join the Court, we are encouraging the resolution of conflicts through peaceful means.
In any event, we know all unfortunately the International Court of Justice may not hear cases if concerned state has not recognized its jurisdiction. And Israel has not, unfortunately, accepted the jurisdiction of the court as compulsory and therefore it will be difficult to bring cases against Israel. However, it will be possible to bring cases against other states that are complicit, supporting or in violation of their international obligations if they filed that declaration accepting the jurisdiction of the court.
Palestine is already member of other intergovernmental organizations including the League of Arab States, the Organization of Islamic Cooperation, that’s among the organizations. Fortunately the Security Council veto power that belongs to the five permanent members does not apply to United Nations specialized agencies such as UNESCO, which are free to admit new members according to their rules and procedures. Therefore, there are several specialized United Nations agencies that Palestine might seek membership in and among them are the International Fund for Agricultural Development, the United Nations Industrial Development Organization, World Trade Property Organization; I’m not going to go through them but these are the main ones that Palestine may seek admission to. The United States is not member, by the way, to some of these organizations and therefore there’s no risk of [the United States] cutting funding like UNESCO. And that, by the way, violated international law. Why is that? Because states may not use their domestic legal system, as the United States did with regard to UNESCO, in order to justify noncompliance with their international obligations.
There are also other United Nations bodies that required a two-thirds majority. If Palestine can get two-thirds majority of the membership of these organizations it can also seek admission into; the Food and Agricultural Organization, also known as FAO; the International Labor Organization and many other organizations that I’m not going to go through in order to be short and allow time for questions and answers. Also it may seek to join Interpol if it so wishes. The International Monetary Fund is also open because they already have a precedent of admitting Kosovo, which is not a United Nations member, into the organization. And voting power depends on the size of the state economy in world economics, so it’s more for powerful economic countries.
Briefly on the ICC, the Rome Statute as we all know became effective 1 July, 2002 and Article 12:3 allows nonparties to the Rome Statute to accept jurisdiction of the Court since 1 July, 2002. Contrast between accepting the Statute, which is only prospective so there’s no retroactive application unlike the declaration. So as the declaration is issued, the Court may have jurisdiction going as far as 1 July, 2002.
In January of 2009, Palestine filed declaration accepting Court jurisdiction as far back as 1 July, 2002. The declaration gives the International Criminal Court jurisdiction over the crimes of aggression, genocide, crimes against humanity or crimes as defined by the Statute. And according to the office of the prosecutor, more than 400 communications were received on crimes allegedly committed in Palestine. Now in 2012, and to be precise in April of 2012, the prosecutor decided not to proceed, citing lack of authority to adopt a method to define the term state. It stated, however, that it could in the future consider allegations of crimes committed in Palestine should competent organs of the United Nations or eventually the Assembly of States resolve the legal issue or should the Security Council refer the situation to the International Criminal Court jurisdiction.
The prosecutor also sided with the practice of the General Assembly [and the] Secretary General in fact, to seek General Assembly guidance when it’s controversial or unclear when an applicant is a state. But he also, issuing a decision, failed to note that members of specialized agencies such as UNESCO are automatically permitted to join the International Criminal Court. It also should be noted that his decision was issued six months after Palestine joined UNESCO, so there really was room for the prosecutor to accept the declaration.
There was a recent request by the minister of justice in Palestine, as well as the attorney general in Gaza, to reconsider the International Criminal Court decision, or at least submit the validity of the decision to the chamber and let the Court decide whether the 2009 declaration was valid or not. It is unclear, however, whether the office of the prosecutor would reopen an examination it already considered invalid in the past. Several human rights organizations urge Palestine to re-submit the declaration again and that way it will avoid any legal issues with the 2009 declaration. However, it is well known that it seems, according to news reports, the Palestinian Liberation Organization is trying to get a consensus among other factions before they submit a new declaration. Amnesty also release last week n important briefing calling on the International Criminal Court to investigate and arguing that International Criminal Court action is the only way to break “the culture of impunity” in Gaza. It also called upon Israel to do the same and accede to the International Criminal Court and accept the jurisdiction of the Court and also for the United Nations Security Council to refer the situation as it did for example in Darfur, Sudan.
And that’s probably going to be my last topic to discuss in this presentation. The recent request by the president of Palestine, President Mahmoud Abbas, to seek United Nations protection from Israeli aggression, continued occupation and violation of international law; in particular its escalation and its bombardments against the civilian population of Gaza. Now this is in effect going back to the United Nations Trusteeship System which was created to replace the League of Nations mandate system in order to administer the colonies for the defeated states of WWII. That was the main purpose of the Trusteeship Council. And United Nations areas can be placed voluntarily by states responsible for the administration under the Charter. The Trusteeship Council was also created to assist the General Assembly in carrying out its functions according to the Charter. It’s also important that Palau was the last territory of the original 11 to achieve full independence in 1994. And since then, the Trusteeship Council, which is now composed of the five permanent Security Council members, has been left without any responsibilities and meets only once a year.
What are the main objectives of the Trusteeship System under the Charter? It is to further international peace and security and to promote the political, economic, social and educational advancement of the inhabitants towards self-government or independence as made appropriate. There are also other objectives, including protecting human rights/ I’m not going to go through them, but they’re very clear in the Charter.
What are the pros and cons about going back to the trusteeship system, or maybe something similar to what Palestine was like under the mandate system? First of all, the legal challenge would be to look on these questions: what state is responsible for the administration of Palestine now? Some would argue that the state responsible for the administration of Palestine falls with the state that has effective control over it, meaning the occupying power; that is Israel. Palestine, however, does not lose sovereignty of its land and hence Palestine could be considered the administering state for the purposes of Article 77 of the Charter. Another legal obstacle that is both procedural as well as substantive is that under the United Nations Charter there is a distinction between strategic and nonstrategic areas. Now what is strategic? It is not defined in the United Nations Charter. However, if it is considered to be a strategic area it would fall under the mandate responsibility of the United Nations Security Council. The distinction was used only once so far and that was in the case of the former Japanese mandated islands and the United Nations back then considered these islands to be strategic because they were important to international security as well as being an integrated physical complex vital to the security of the United States. It should also be noted that the establishment of military bases, for example, and trust territory doesn’t necessarily make it a strategic area. So that’s also important to know.
Some have argued in the past and maybe they still believe that Palestine is still under some sort of responsibility of the United Nations General Assembly simply because it is the successor to the League of Nations, with regard to Palestine as a mandate. However, this argument isn’t likely to prevail because it’s not favored by many in the decision making circles. However, in terms of the agreement, the geographical agreement and the duration of such an agreement is very important. What would be the exact mission of the trusteeship? What would be the extent of the functions of the entity that would administer Palestine? Would it fully administer, or only assist the Palestinian government? What would that entity be composed of, the United Nations? One state or a multilateral force? What would be the status of the settlers? Would they be evacuated, and if so and by whom? What would be the fate of the wall? Would all of Palestine placed under protection, or only certain areas? Who would finance the trusteeship? Would it be limited for a limited duration, or open ended until independence is achieved? These are all very difficult questions to answer and therefore due to the complexity of the issues and world politics as we know it, it is unlikely in my views that the United Nations would actually act on the application. Thank you all for your attention.
Phyllis Bennis directs the New Internationalism Project at the Institute for Policy Studies. She is also a fellow of the Transnational Institute in Amsterdam. She has been a writer, analyst, and activist on Middle East and UN issues for many years. In 2001 she helped found and remains on the advisory board of the U.S. Campaign to End Israeli Occupation. She writes and speaks widely across the U.S. and around the world as part of the global peace movement. She continues to serve as an informal adviser to several top UN officials on Middle East and UN democratization issues. Phyllis Bennis is the author of many books including: From Stones to Statehood: The Palestinian Uprising (1990); Calling the Shots: How Washington Dominates Today’s UN (2000); Before & After: US Foreign Policy and the September 11th Crisis (2003); Challenging Empire: How People, Governments, and the UN Defy US Power (2006); Understanding the Palestinian-Israeli Conflict: A Primer (2009). She is also co-editor of Beyond the Storm: A Gulf Crisis Reader (1991) and Altered States: A Reader in the New World Order (1993).
This transcript may be used without permission but with proper attribution to The Palestine Center. The speaker’s views do not necessarily reflect the views of The Jerusalem Fund.