OCCUPATION, COLONIALISM, APARTHEID?

These are the conclusions:

Ground-breaking Report on Israel in International Law presented in the House of Commons

Friends of Al-Aqsa, in conjunction with the Britain-Palestine All Party Parliamentary Group, hosted an event at the House of Commons on Tuesday 19th May, considering the findings of a report titled: ‘Occupation, Colonialism, Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian territories under international law.

This investigative Report was produced by a team of high-profile international lawyers and academics following 18 months of research looking at Israel’s practices in the occupied Palestinian territories and its implications under international law.Four of the authors of the Report, Prof. Virginia Tilley, Prof. Iain Scobbie, Rina Jabareen and John Reynolds (Al-Haq), all presented their findings to a group of MPs, Lords and Baronesses’. Amongst those in attendance were Lord Hilton, Claire Short MP and Baroness Jenny Tonge.

The report is available to view at the
Human Sciences Research Council website ( http://www.hsrc.ac.za/Event-363.phtml

For further information about the report, contact Friends of Al-Aqsa.

20 May 2009

OCCUPATION, COLONIALISM, APARTHEID?

F. Implications and Recommendations

International law is inherently biased

towards the protection of State interests. Although

the Palestinian people has some international

status because of its entitlement to selfdetermination,

the remedies available to it on the

international sphere are limited, and principally lie

in recourse to human rights bodies in attempts to

ensure that Palestinian rights are respected. This

relative absence of remedies available to the rightbearer

does not, however, have the consequence

that Israel’s obligations are lessened or

extinguished. The conclusion that Israel has

breached the international legal prohibitions of

apartheid and colonialism in the OPT suggests that

the occupation itself is illegal on these grounds.

The legal consequences of these findings are grave

and entail obligations not merely for Israel but also

for the international community as a whole.

Israel bears the primary responsibility for

remedying the illegal situation it has created. In the

first place, it has the duty to cease its unlawful

activity and dismantle the structures and

institutions of colonialism and apartheid that it has

created. Israel is additionally required by

international law to implement duties of

reparation, compensation and satisfaction in order

to wipe out the consequences of its unlawful acts.

But above all, in common with all States, whether

acting singly or through the agency of intergovernmental

organisations, Israel has the duty to

promote the Palestinian people’s exercise of its

right of self-determination in order that it might

freely determine its political status freely pursue its

own economic policy and social and cultural

development.

The realisation of self-determination and

the prohibition on apartheid are peremptory

norms of international law from which no

derogation is permitted. Both express core values

of international public policy and generate

obligations for the international community as a

whole. These obligations adhere to individual

States and the intergovernmental organisations

through which they act collectively. Breaches of

peremptory norms, which involve a gross or

systematic failure by the responsible State to fulfil

the obligations they impose, generate derivative

obligations for States and intergovernmental

organisations of cooperation and abstention.

States, and intergovernmental

organisations, must cooperate to bring to an end

any and all serious breaches of peremptory norms.

The obligation of cooperation imposed upon

States may be pursued through intergovernmental

organisations, such as the United Nations, should

States decide that this is appropriate, but must also

be pursued outside these organisations by way of

inter-State diplomatic measures. One possible

mechanism is that States may invoke the

international responsibility of Israel to call it to

account for its violations of the peremptory

prohibitions of colonialism and apartheid. All

States have a legal interest in ensuring that no State

breaches these norms, and accordingly all States

have the legal capacity to invoke Israel’s

responsibility. Above all, however, all States and

intergovernmental organisations have the duty to

promote the Palestinian people’s exercise of its

right of self-determination in order that it might

freely determine its political status and economic

policy.

The duty of abstention has two elements:

States must not recognise as lawful situations

created by serious breaches of peremptory norms

nor render aid or assistance in maintaining that

situation. In particular, States must not recognise

Israel’s annexation of East Jerusalem or its attempt

to acquire territory in the West Bank through the

consolidation of settlements, nor may they bolster

the latter’s economic viability. Should any State fail

to fulfil its duty of abstention then it risks

becoming complicit in Israel’s internationally

wrongful acts, and thus independently engaging its

own responsibility, with all the legal consequences

of reparation that this entails.

In short, for States the legal consequences

of Israel’s breach of the peremptory norms

prohibiting colonialism and apartheid are clear.

When faced with a serious breach of an obligation

arising under a peremptory norm, all States have

the duty not to recognise this situation as lawful

and have the duty not to aid or assist the

maintenance of this situation. Further, all States

must co-operate to bring this situation to an end.

If a State fails to fulfil these duties, axiomatically it

commits an internationally wrongful act. If a State

aids or assists another State in maintaining that

unlawful situation, knowing it to be unlawful, then

it becomes complicit in its commission and itself

commits an internationally wrongful act.

States cannot evade these obligations

through the act of combination. They cannot claim

that the proper route for the discharge of these

obligations is combined action through an

intergovernmental organisation and that if it fails

to act then their individual obligations of

cooperation and abstention are extinguished. That

is, States cannot evade their international

obligations by hiding behind the independent

personality of an international organisation of

which they are members.

Moreover, like States, intergovernmental

organisations themselves bear responsibility for

their actions under international law. Obligations

erga omnes

generated by a breach of a peremptory

norm of international law are imposed on the

international community as a whole and are thus

imposed equally on intergovernmental

organisations as well as States. As the International

Court of Justice stated in the

Legal consequences of the

construction of a wall in occupied Palestinian territory

advisory opinion, the United Nations bears a

special responsibility for the resolution of the

Israel-Palestine conflict.

While both States and intergovernmental

organisations have a degree of discretion in

determining how they may implement their duties

of cooperation and abstention, the authors of this

study agree with Professor Dugard’s suggestion

that the parameters of these duties might best be

delineated by seeking advice from the International

Court of Justice. Accordingly we respectfully

suggest that, in accordance with Article 96 of the

Charter of the United Nations and pursuant to

Article 65 of the Statute of the International Court

of Justice, an advisory opinion be urgently

requested on the following question:

Do the policies and practices of Israel

within the Occupied Palestinian Territories

violate the norms prohibiting apartheid and

colonialism; and, if so, what are the legal

consequences arising from Israel’s policies

and practices, considering the rules and

principles of international law, including the

International Convention on the Elimination

of all forms of Racial Discrimination,

the International Convention on the

Suppression and Punishment of the Crime

of Apartheid, the Declaration on the

Granting of Independence to Colonial

Countries and Peoples, UN General

Assembly Resolution 1514 (1960), the

Fourth Geneva Convention of 1949, and

other relevant Security Council and General Assembly Resolutions

Background and draft table of contents (You will be able to download the Occupation, Colonialism, Apartheid? executive summary and full report shortly. If you would like an advance copy please request it via email: mep@hsrc.ac.za)