Michael Mansfield, QC, 11 March 2010
If you lived on a street where a neighbour frequently and flagrantly broke the law, you would want something done about it, especially if that neighbour took part of your garden, replaced the fence with a 30ft wall, cut down your trees and redirected your water supply.
Suppose the authorities to whom you complained merely denounced the illegalities and took no action? You might think that this situation is inconceivable. But that is precisely what has been happening to the Palestinians for the best part of 60 years.
On July 9, 2004, the International Court of Justice in The Hague (ICJ) produced a strong advisory opinion on the legal consequences of the construction of a wall in the occupied territories.
Fourteen of 15 judges agreed the core findings: that the construction was contrary to international law, both human rights and humanitarian; that it should be dismantled with reparations being made for all damage caused. This was adopted by a UN General Assembly resolution on July 20, 2004.
This resolution, like so many before it concerning violations perpetrated by Israel, was fundamentally ignored. The ICJ had not only specified the obligations owed by Israel under international law but also spelt out very clearly the obligations incumbent on third-party states to ensure that the core values or peremptory norms — such as the right to self-determination — are upheld by those states that break them. This is a matter of common sense and ordinary reason; for, were it to be otherwise, the rule of law and the authority of international justice would be completely undermined.
It was in this context that the Russell Tribunal was reconvened in Barcelona on March 1 to 3 to examine the legal responsibility for violations in the Palestinian Territories. Four more international sessions are planned.
The tribunal has an illustrious history with its origins in the Bertrand Russell Peace Foundation launched in 1963. The first tribunal concerned the war in Vietnam, and led to citizens’ commissions of inquiry held in several American cities. A second tribunal was established to investigate human rights violations in South America in 1974-75.
These are tribunals of conscience, created in response to the demands of citizens in many countries who feel that perpetrators must be held to account and that states cannot be allowed to act with impunity; which is often the result of inaction and complicity by others.
The first session examined the responsibility of the European Union and its member states. The hearings dealt with six topics: self-determination; the annexation of East Jerusalem; settlements and the plundering of natural resources; the EU Israel Association agreement; the Gaza blockade/Operation Cast Lead; and the wall.
Proceedings were opened by Stéphane Hessel, a co-author of the Universal Declaration of Human Rights, followed by 27 witnesses with a range of expertise and experience (lawyers, academics, aid workers, human rights advisers, members of the European and British parliaments and a military adviser).
Israel’s violations are well known and well documented through to the Goldstone report on the invasion of Gaza in early 2009 and were summarised in the tribunal’s report under ten separate headings. The Palestinian Territories determined that a form of apartheid is being practised. The EU and its member states were found to have transgressed the EU Treaty itself as well as international obligations under the UN Charter and the 1966 Covenant on Civil and Political Rights.
The real question, however, is not just inaction but positive action undertaken by Europe that supports the illegality. This can be exemplified by the export of weapons and components; the trade in produce from settlements in the occupied territories and above all the multibillion EU Israel Association agreement that confers benefits on Israel. The EU is the third most important trading partner for Israel and the EU Parliament has passed a resolution requiring the suspension of the association agreement, but like so much else this has not been implemented.
It was obvious to the tribunal, therefore, that the EU may not be prepared to comply with international law. In these circumstances it is necessary for concerned citizens to examine ways in which accountability may be effected. There are a number of legal avenues that can be pursued against individual European governments and their agencies, and individual private companies that maintain the regime of illegality. Additionally Israeli perpetrators of war crimes are susceptible to universal jurisdiction and are liable to be arrested should they travel to Europe.
So far the exercise of this power has not been overwhelmingly embraced by European states; instead it has been left to the endeavours of committed individuals on behalf of the victims and their families in the Palestinian Territories.
The author, a QC, was one of the eight member international jury panel of the RTP. See their full report at www.russelltribunalonpalestine.com