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Posts

Using international law

Page last updated 16 Jun 2015

Introduction

International law supports the Palestinian cause. It is essential that Palestinians are familiar with the rules of international law that are violated by Israel and the procedures that may be followed to enforce these rights. A greater awareness on the part of Palestinians of their rights is necessary to ensure that the Palestinian Authority and the PLO take full advantage of the mechanisms afforded by international law for the redress of Palestinian rights.

John Dugard, Professor of International Law
former UN Special Rapporteur on Human Rights in the OPT

International law, when integrated with broader popular resistance, can challenge the apartheid system that Israel has imposed on the Palestinian people since 1948. Unfortunately, international law is not self-executing, and Palestinian officialdom has been lax in exploiting it. Thus it falls to civil society to ensure that principles of international law and human rights are realized in Palestine today.

George Bisharat, Professor of Law, expert in criminal law

International law is, or should be, one of the weapons deployed in the struggle for Palestinian rights. It has been used from time to time, most notably in the application to the International Court of Justice on the legality of the Wall, which found on 9 July 2004 that “the construction by Israel of a wall in the Occupied Palestinian Territory and its associated régime are contrary to international law”. It has been used to try to get Israeli military and senior politicians arrested when travelling abroad where there is strong prima facie evidence that they are guilty of war crimes. It has been used against companies like Veolia and G4S in arguing that their actions amount to “grave misconduct” in the conduct of business under any reasonable interpretation, given that they directly assist serious violations of international humanitarian law by Israel.

And of course, Palestine’s application to join the International Criminal Court, in January 2015, was successful and Palestine accepted as a full member on 1 April. (Israel’s immediate response was to cut off millions of dollars in monthly tax payments it collects on behalf of the Palestinian Authority…) It remains to be seen whether the ICC will actively pursue cases against Israel, but the possibility is now there.

Organisations like Lawyers for Palestinian Human Rights in the UK are particularly concerned with this arena of struggle.

 


A: General

1. Duty of all states not to recognise as lawful Israel’s illegal acts
Civic Coalition for Palestinian Rights in Jerusalem in cooperation with the Birzeit University Institute of Law, JfJfP Feb 2014

This guide is an outcome of the conference “Options and Strategies of International Law for the Palestinian People” held at the Birzeit University Institute of Law in May 2013. It aims to help non-lawyers understand and apply international law to Israel’s oppressive regime over the entire Palestinian people: those in the Occupied Palestinian Territory since 1967 (OPT), Palestinian citizens of Israel and the refugees since 1948. It explains briefly:

1) Why speaking only about “occupation” is not enough;
2) Why we should rather speak about (settler) colonialism, population transfer (ethnic cleansing) and apartheid, in addition to occupation;
3) How we can do so in accordance with international law; and,
4) Why colonialism, population transfer and apartheid, as legal frameworks, are helpful for building pressure on third parties to take action against Israel’s oppressive regime.

 


B: ICJ decision

1. World court tells Israel to tear down illegal wall
Chris McGreal, Guardian, 10 Jul 2004

The basic story

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2. Summary of the Advisory Opinion
ICJ, 9 July 2004

The ICJ came to 5 decisions:

A. The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law;

B. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion;

C. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;

D. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;

E. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

“The Court gives a variety of reasons for this conclusion, but the primary reason is that it infringes upon the right of the Palestinian people to self-determination as laid down in Article 1 to the UN Charter.” It also found that “in constructing the wall Israel has breached the Fourth Geneva Convention (on the Protection of Civilians Persons in Time of War), because the destruction or requisition of property in order to make way for the wall is contrary to Article 53 of the Convention.”

 


C: Universal jurisdiction

1. Abettors of war crimes will be held accountable
Adri Nieuwhof & Daniel Machover, Electronic Intifada, 10 Jan 2009

A strong argument made during the 2008-09 war on Gaza, challenging Israel’s claim to be acting in lawful self-defence

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On 1 April 2015, Palestine became a State Party to the Rome Statute, able to refer any future war crimes committed within its territory to the International Criminal Court (ICC). This followed the launch of a preliminary examination into the Palestinian situation by the ICC Prosecutor on 16 January 2015, after Palestine submitted an ad-hoc declaration giving the ICC retroactive jurisdiction from 13 June 2014. However, crimes committed before that date will not be subject to investigation or trial by the ICC. This is one of the reasons why Universal Jurisdiction may still have an important role to play in bringing perpetrators of alleged war crimes in Palestine to justice.

 


D: The International Criminal Court

Many observers are pessimistic about the chances that the ICC will investigate accusations against Israel see e.g. Novak and Heller below; but Raji Sourani, the Director of the Palestinian Centre for Human Rights and Shawan Jabarin, Director of Al-Haq are more optimistic…

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1. Why Palestine Has No Chance at the International Criminal Court
Andrew Novak, The Daily Beast, 17 Apr 2015

A downbeat if not utterly dismissive account, arguing that despite the “consternation in both the United States and Israel” there was little to fear from Palestine’s accession to the Court.
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2. The ICC in Palestine: Be Careful What You Wish For
Kevin Jon Heller, Justice in Conflict, 2 Apr 2015

Heller, Professor of Criminal Law at SOAS, argues why he does not believe the ICC will ever investigate Palestine. And, if it does, the easiest case – “Not the gravest crime – but absolutely the easiest to prove in terms of its legal elements and evidentiary considerations.” – would be against Hamas’s rocket attacks against civilians…
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3. Palestine and the International Criminal Court
internationaljusticereport, 18 Mar 2015

A brief discussion of the possiblities that Raji Sourani and Shawan Jabarin, Palestinian human-rights activists, see memberhip of the ICC opening up for Palestine.

 


E: Use of the law against companies aiding and abetting the occupation

1. G4S

Lawyers for Palestinian Human Rights made a submission against G4S to the UK National Contact Point, the UK watchdog that investigates complaints against multinational enterprises. On 9 Jun 2015 this body found that G4S is violating human rights obligations towards Palestinians

See LPHR statements issued on that day

a) Q&A on LPHR’s human rights complaint against G4S
b) LPHR Press Statement: UK watchdog finds G4S is violating human rights obligations towards Palestinians
c) LPHR Commentary on the UK National Contact Point Final Statement concerning LPHR’s human rights complaint against G4S

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2. Veolia

For the Hickman Rose legal briefing see Veolia – a case to answer

 


Contents of this section

3. STRATEGIES FOR CHANGE

a) Negotiating for peace
b) Palestinian popular resistance
c) Boycott, divestment, sanctions

Some early history
The campaign against settlement goods and institutions
Arms boycott
Boycott of companies profiting from the occupation
Academic and cultural boycott
Sanctions: the EU and Israel-Palestine

d) Israeli social movement opposition
e) Solidarity with Palestinian and Israeli campaigns and activities
f) Hamas’s strategy
g) The call for equal rights
h) Using International Law

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