ORGANIZATION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
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Commission on Human Rights
Sixty-second session (13 March – 21 April 2006)
2nd Session of the Human Rights Council
18 September – 6 October 2006
Standards of a Negotiated Settlement to End the Israeli Occupation
By Dr. Anis Al-Qasem
Third: Commitments of Other Countries and the United Nations
1- After looking into the legality of the wall built by Israel in the occupied Palestinian territories and ruling it was illegal and should be removed and compensation should be paid to the afflicted people, the International Court of Justice then looked into the commitments of other countries and those of the United Nations in that regard, in addition to their responsibility in solving the Palestinian cause. The ICJ blamed the United Nations for its failure due to the use of veto powers by one of its Security Council permanent member states. In this research, we briefly discuss that aspect of the ICJ ruling and recall here what we have said earlier; that is, the ruling is a binding one because the principles and rules which it is based on are general principles and rules of international and humanitarian laws binding to all countries and so considered by the UN General Assembly.
Commitments of Other Countries
2- By other countries, we mean the rest of the world, including of course the Arab states, the United States of America and the European Union. The ICJ addressed them as countries first, then as UN member states and we will come to that point in the second part of this article. As for their commitments as countries, the court determined them as follows:
First: Commitments imposed by the international and humanitarian laws on all countries.
Second: The commitment not to acknowledge the legality of the wall.
Third: The commitment not to provide help or assistance to preserve it.
Fourth: The commitment to ensure the respect of the Fourth Geneva Convention related to the treatment of civilians during armed conflicts.
First: Commitments imposed by international and humanitarian laws
3- The International Court of Justice determined the commitments imposed by the international and humanitarian laws regarding the Israeli occupation, deciding these were binding to all countries and not just to Israel due to their general nature. This means that in dealing with the Palestinian-Israeli conflict, countries are bound to respect the rules of international and humanitarian laws and never to violate them in terms of the occupation, its effects and the solution that must be reached. For example, countries that agree on the keeping of settlements or annexation of occupied Palestinian territories, such as Jerusalem, are violating these rules and legal principles. Naturally, providing Israel with political, financial or military assistance to continue its occupation or to build more settlements or to abuse Palestinian rights is also considered a violation. Israel's violation of the principles of international and humanitarian laws that are binding to all entitles each country to take necessary procedures in attempts to end such violations. This means that any country boycotting Israel with the aim of forcing it to respect the rights of Palestinians is a legal move. That also applies to severing diplomatic relations. These countries may even have the right to sue Israel before the International Court of Justice or any other proper legal entity because they have interest in enforcing the respect of international law. This applies specifically to Arab and Islamic countries. In addition to their general interest in the respect of international law, they also have special interest due to the direct impact of Israeli violations.
Second: The commitment not to acknowledge the legality of the wall
4- The International Court of Justice ruled the wall to be illegal, so it was only natural to decide committing all parties not to acknowledge it. That commitment is binding to all countries, including Arab states and the Palestinian Authority in particular. The Arab countries and the Palestinian Authority have grown used to accepting all Israeli claims about their security. Egypt, for example, ceded a great deal of its sovereignty over Sinai for that reason. The Palestinian Authority also hunted down and locked up Palestinian activists for that reason. In any future negotiations, Israel will sure hold on to the wall as being essential to its security. We are afraid situations may repeat themselves and Arab regimes would accept that and start pressuring the Palestinians to accept the wall. Israel is experienced in marketing its plans, so, it may offer crossings, vowing to keep them open or offer permissions to landlords whose lands are beyond the wall to reach them. The danger here is to accept such measures. The wall is illegal and we must insist on its removal as the ICJ has ruled, at any cost. This is going to be the final solution for the Palestinian cause that will not allow Israel to achieve its goal of borders extending from the river to the sea.
Third: The commitment not to provide help or assistance to preserve the wall
5- This is a natural commitment emanating from the ruling against the legality of the wall and the necessity to remove it. In our opinion, that commitment extends from financial support to political and diplomatic support as well. It is not limited to America's military aid to Israel or loans or loan facilitations, it also extends to support in the UN Security Council via the use of veto power to abort collective measures by the international community to force Israel to remove violations such as the wall. We also believe that the United States can be sued, not just over its support for the Israeli occupation, but also over its illegal use of veto powers to maintain an illegal status. That commitment also imposes on countries to ban their companies from participating in the construction of the wall. Henceforth the soundness of decisions taken by US and British churches to end their contributions to the US Caterpillar Company whose tools and equipment are used in building the wall and bulldozing Palestinian land and property.
Fourth: Commitment to ensure the respect of the Fourth Geneva Convention
6- Unlike what Israel claimed, the International Court of Justice ruled that the Fourth Geneva Convention related to the protection of civilians is binding to it. Consequently, the court imposed a commitment on other countries to work on seeing to Israel's respect of the articles of that Convention, in line with their very own obligations under that same Convention. The Fourth Geneva Convention provides not only for the signatories respect for it, but also for their obligation to ensure others' respect for it. This is an obligation on all signatories to that Convention. It is an individual and a group contractual obligation. That is to say each country is entitled to take the necessary measures against Israel to force it to respect the rules of the Convention, as much as it is the right of all countries to agree on similar collective measures. All Arab and Islamic countries are party to that Convention and are entitled to take measures against Israel to force it to respect that Convention and stop its violations. These measures include stopping normalization of relations and suspension of diplomatic ties. Once these countries take such measures, they will remind other countries of their obligations and can thus make a call to take effective collective measures. Collective work can be arranged through the call for a general conference of the member states signatories on the Convention. That same conference was already convened before and called on Israel to abide by the Convention. But it is high time for this international tool to be resurrected to take measures against Israel other than urging it to respect the Convention. No country has veto power in that international body. Current conditions are ripe due to the various and continuing Israeli violations and also due to the International Court of Justice ruling. Yet we repeat that our rights are wasted because our regimes do not hold on to them or are lenient in that regard.
Commitments of the United Nations
7- In the opinion of the International Court of Justice, the United Nations, especially Security Council and General Assembly, committed serious flaws in their efforts to solve the Palestinian cause. The court put the blame on the use of veto powers by a permanent member of the Security Council. The court asked the United Nations to take procedures to ensure respect for the international and humanitarian laws as determined by the court. The General Assembly started implementing that by demanding Israel to abide by the ICJ ruling. Things, however, stopped at that point since then because the General Assembly does not convene automatically. It convenes upon requests from the members. So far, Arab and Islamic countries have not requested a meeting of the UN General Assembly to seek certain measures against Israel to force it to implement the ICJ ruling. We have no doubt this is due to US pressures and promises of negotiations. In our opinion, this is not the right position on the part of Arab and Islamic regimes because it mortgaged the whole situation on a very highly doubtful hope. It is also certain that such a hope will not achieve what Arabs or Palestinians want and will not be in line with the legal principles and rules set by the International Court of Justice. Israel has continued to build the wall and never stopped construction, not even to demonstrate good faith. Arab and Islamic regimes are thus required to seek a General Assembly meeting to look into measures against Israel.
8- Being a member of the quartet committee tasked with the implementation of the roadmap, the United Nations was advised by the court not to relinquish command of that committee to the United States. It is, instead, demanded to take positions aiming at the implementation of principles and rules of the international and humanitarian laws, which are binding to the international community as ruled by the ICJ.
9- The International Court of Justice took a very important step to enhance the role of the UN General Assembly. It was commonly believed that the Security Council was the only body tasked with looking into conflicts that threaten international peace and security and that the General Assembly was not to discuss conflicts of the sort as long as they were on the agenda of the Security Council. But the International Court of Justice interpreted the rulings of the UN Charter in that regard. It stated that such right was not limited to the Security Council and that the General Assembly is entitled to discuss and decide on that kind of international conflict even if the conflict is on the agenda of the Security Council. As regards the Palestinian cause in particular, the court remarked that the General Assembly was more prone to look into it than the Security Council.
10- Based on that ruling by the International Court of Justice and putting the blame on the Security Council, especially the country that practiced the veto power to protect Israel's violations, doors are wide open now before the UN General Assembly to go past the Security Council as far as the Palestinian cause was concerned and to take whatever measures it deems fit. There is a good chance also for Arab and Islamic countries to work through the General Assembly and avoid the US veto in the Security Council. The General Assembly can do much if Arab and Islamic countries move seriously. The General Assembly's moves against racist South Africa are an indicator. These moves were taken even before the ICJ ruling that enhanced the role of the General Assembly in taking measures to ensure world peace and security. This is a highly important development to the General Assembly's role but apparently Arab regimes and the Palestinian Authority are yet to realize it.
11- After the issuance of that ICJ ruling and its adoption by the General Assembly with an overwhelming majority – no major country other than the United States opposed it, Arabs no more have a reason to fear the US veto in the Security Council. Countries that agreed on the ICJ ruling, including European Union countries, will find it difficult to oppose demands to implement that ruling under the principles and rules of international and humanitarian laws. The United States will then have to stand alone in the face of the International Court of Justice and the entire global community in its support of violating general principles and rules binding to the international community. Arab regimes’ subservience to the United States in situations detrimental to our causes add insult to injury and do not help solve these causes. There is a chance now and we hope our countries will take it instead of remaining paralyzed out of fear of the US or Israel or out of a false hope that denies our rights.