Options and Strategies of International Law for the Palestinian People
Institute of Law, Birzeit University
8 May 2013
An international law conference organized by the Birzeit Institute of Law, the Civic Coalition for Palestinian Rights in Jerusalem and the Decolonizing Palestine Project
Concept Note
This conference aims to create space for Palestinians to discuss options and strategies of international law from a theoretical and practical perspective. It will examine the currently dominant international law paradigm, its merits, limitations and possible alternatives. As such, the conference will be relevant for both academic and political actors. Against the background of Palestine’s recent admission to the United Nations as a non-member observer state, it will critically reflect on the role and impact of the dominant paradigm on the Palestinian people, examine alternative paradigms appropriate for the analysis of Israel’s regime of prolonged occupation, and discuss practical, legal and political strategies that can build respect of the human rights of the Palestinian people, in particular the rights to self-determination and reparation, and the respective international obligations of Israel and third parties.
The conference specifically aims to:
a) Increase the legitimacy, visibility and support of the debate about alternative international law paradigms that can better reflect the breaches committed by Israel’s regime of prolonged occupation and provide new vision and strategies to counteract it;
b) Examine possible practical strategies, including risks, and build consensus among the participants about the appropriate legal analysis, strategies and actions;
c) Motivate participants to engage in follow-up activities to be implemented after, and separately from, the conference.
The Problem to be addressed: The use of international humanitarian law as the dominant paradigm for Palestine
For the past 45 years, analysis and policy on Palestine has been increasingly dominated by an International Humanitarian Law (“IHL”) paradigm whose foundations were laid by United Nations (“UN”) Security Council Resolution 242 (1967). Whereas prior and immediately after 1948, the UN’s approach to the “Question of Palestine” had encompassed the entire territory and population of British Mandate Palestine, Resolution 242 significantly narrowed the scope of the conflict-to-be-resolved. The Resolution made no reference to the Palestinian people and did not provide a legal framework for the solution of their issues with Israel; it only affirmed the need for an unspecified “just solution for the refugees.” It also shifted the focus to the territories which had come under Israeli control as a result of the war of 1967, i.e. the West Bank, including East Jerusalem, and Gaza Strip. With regard to these territories, the Resolution established that they were occupied territory, that they were not – and could never become – Israeli territory, and that Israeli withdrawal from them was a requirement for peace.
Under the legal paradigm that evolved out of Resolution 242, the Palestine question became the question of the future status of the Israeli occupied West Bank and Gaza Strip, rather than the issue of the indigenous Palestinian people and citizens of former British Mandate Palestine with substantial outstanding rights and claims in their homeland. Based on the assumption that Israel was willing to end its occupation in exchange for peace agreements, Palestinians became expected, like Arab states, to terminate all claims against Israel, and to recognize the status quo Israel has created in the part of Palestine it conquered in 1948, in exchange for Israeli withdrawal from and Palestinian sovereignty in the West Bank and Gaza Strip (the so-called land for peace formula). Moreover, IHL became the primary body of law regulating the Israeli occupation in the West Bank and Gaza Strip designated as Occupied Palestinian Territory (OPT). Using IHL as the paradigm, the Israeli occupation regime per se was not illegal. Israel, as the occupying power, was granted the authority to establish its own temporary regime for maintaining law and order in the OPT. Hence, the legality of Israeli practices in the OPT became an issue, rather than the occupation regime itself, and the right to self-determination of the Palestinian people, though recognized, was effectively suspended until the termination of the occupation. Notably, the 2004 advisory opinion of the ICJ on Israel’s illegal construction of the Wall in the West Bank and East Jerusalem resurrected the principle of self-determination as the primary legal framework with which to evaluate Israeli actions. However, most of the international community and even the Palestinian leadership have not utilized fully this legal precedent.
In the OPT since 2001, this IHL paradigm has given rise to an international aid enterprise that further reduces the scope of the Palestinian right to self-determination and other human rights to those of IHL protected civilians under (temporary) occupation. International actors interpret their mandates as being limited to mitigating the humanitarian impacts of Israel’s occupation. Their responsibility to ensure the right to self-determination and reparation of the entire Palestinian people as well as Israeli respect of its international obligations is relegated to the diplomatic community and the unsuccessful peace processes. Despite 60 years of deadlock, international diplomacy continues to dictate that Palestinian self-determination, independence, sovereignty and return of the refugees are negotiable rights contingent on Israel’s consent. The recent admission of the State of Palestine in the OPT to the UN as a non-member observer State does not change the reality on the ground, as the Palestinian living the OPT remain under military occupation. It also has not changed, but rather affirmed the dominant paradigm.
In the meantime, the Israeli occupation- which operates under the legal premise that it is temporary- has developed into almost half a century of military control and Israeli colonies. Still, Israel’s occupation regime per se has never been declared illegal by the United Nations. The assumption of the lawful, temporary character of Israel’s occupation is being upheld despite ample evidence of Israeli policies and practices of colonialism and forced population transfer which systematically discriminate and oppress Palestinians and indicate Israel’s intention to acquire permanent control of the OPT. These Israeli policies and practices have been documented by UN human rights treaty committees, UN Special Rapporteurs and fact finding missions. Some of them constitute serious breaches of peremptory norms of international law (ICJ advisory opinion of 2004) and/or are defined as war crimes and crimes against humanity. Under the dominant IHL paradigm, however, although occasionally condemned, they are treated as single incidents and exceptional acts of an otherwise lawful occupation regime, justified by Israel on grounds of public order, security or military necessity.
Conference Agenda: HERE
