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New Year Message: Remembering Palestine
By: Joseph Schechla, HIC-HLRN
01 January 2017
 

As the world embarks on the New Year 2017, after crowning a series of global policy summits by adopting a new agenda at Habitat III (October 2016),[1] we turn our attentions to implementing, monitoring and evaluating the performance of a new layer of norms. That new standard coexists beside other abiding commitments and obligations of states, forming a unitary whole.

Meanwhile, at the start of 2017, the case of Palestine continues to reveal the gamut of habitat rights issues characterizing land conflicts, embodying the full range of possible violations of the most-fundamental human rights and peremptory norms of international law and world order. As 2016 closed, we witnessed not only impunity in the use of cunning tools and acts of dispossession, occupation, population transfer and demographic manipulation across Palestine, but also the commission of analogous copy-cat crimes by other states, occupying Powers and nonstate actors in the Middle East/North Africa (MENA) region.[2] We observe that neither the Habitat III process nor the 2030 Sustainable Development Agenda has addressed these habitat priorities with sufficient honesty and courage.

The 2030 Agenda, which the General Assembly adopted on 25 September 2015, recognizes that people continue to live under “colonial and foreign occupation, which continue to adversely affect their economic and social development as well as their environment.”[3] However, it offers no goal or target to remove those obstacles to sustainable development. However, that omission should not mean that we accept the present catalog of such recalcitrant state behavior as a new antinorm.

The presumed comprehensive 2030 Agenda also has failed to address related causes or consequences of the ensuing refugee and displacement crisis. The Habitat III process also has missed a second chance to fill that gap with a commitment to end the warring destruction of human habitats or the accompanying displacement of humanity.

For decades, and throughout the serial Habitat Agendas, the world community has entrusted the UN with “permanent responsibility” for the Palestinian people[4] until resolution of the conflict.[5] Meanwhile, UN bodies and the international community of states bear common-but-differentiated duties to promote and uphold public international law. That includes strict adherence to human rights and humanitarian law to curb Israeli practices affecting the human rights of the Palestinian people, whether in occupied Palestinian territories or inside the Green Line. That obligation is consistent with the international community’s repeated call to Israel not to practice discrimination and, as the occupying Power, not to exploit, to cause loss or depletion of, or to endanger the natural resources in the occupied Palestinian territory, including Jerusalem, and in the occupied Syrian Golan.[6]

As noted from the first Habitat Agenda in the Vancouver Declaration and Plan of Action (1976), the international community already had recognized the tendency for the ideologies of states to manifest through their housing policies, and warned not to use those powerful policy instruments to dispossess people from their land, or to entrench privilege and exploitation.[7] However, Israel’s domestic policies and its occupation of Palestine illustrate the very reasons for this ominous warning against serving up a recipe for a permanent state of war.

In light of the human rights and global norms affecting human habitat and, in particular, with a view to Palestine as an example, the new calendar contains numerous occasions on which to reflect.

The past year 2016 also posed numerous challenges, choices and opportunities in addressing the Question of Palestine in international law and diplomacy. The principal human rights commemoration in the 2016 calendar was the 50th anniversary of the two International Human Rights Covenants (1966).[8] Relevant to Palestine in 2016 also was the 25th anniversary of Israel’s ratification of those Covenants (1991). With the enhanced status of the State of Palestine—supplanting the Palestine mission’s former remit of representing the Palestinian people as a whole as PLO—and the State of Palestine’s unreserved ratification of the major human rights treaties in the meantime also pose new legal dimensions, opportunities—and challenges—in addressing the Question of Palestine in the UN system. This New Year may shed legal light on the overlapping obligations and mutually claimed jurisdictions of the State of Palestine and Israel, the occupier, in the West Bank, Jerusalem and Gaza Strip.

In addition to Israel’s periodic reviews under the Covenants since 1991, a quarter century of that State Party’s performance under those foundational treaties deserves a special evaluation. Such a review would assess whether the international community, including treaty partners and the United Nations, have lived up to states’ and public institutions’ own solemn mandates to uphold peremptory norms of international law, including human rights and other inalienable rights of the Palestinian people.

In 2016, both looking forward and reflecting back, we commemorated historic anniversaries outside the UN context. In 2016, these marked 115 years since the 1901 founding of the Jewish National Fund (JNF). Throughout that interim, the JNF has maintained a cross-border operation of organized population transfer and colonization not only throughout historic Palestine, but also from bases in some 50 other sovereign states.

The last year closed with the Security Council’s clear expression of the illegality of the settler colonies and associated regime that the State of Israel, its parastatal institutions JNF, World Zionist Organization/Jewish Agency and affiliates maintain in the occupied Palestinian territory, as elsewhere in historic Palestine. The new resolution S/RES/2334 of 23 December 2016[9] rests on the integrity of the foregoing series of Security Council resolutions since 1967, including its resolutions 242 and 338, which establish the boundaries of the internationally supported two-state solution. Significantly also, S/RES/2334 reaffirms S/RES/465 (1980), which “Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories.”[10] Resolution 2334 also “Calls upon all States…to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”[11]

However, the obligation of states and governments not to recognize or transact with the illegal situation comes not only from this recent resolution of the Security Council, but remains a duty of states, erga omnes. That long-standing obligation of all states—whether Members of the United Nations or not—prohibits support for, and cooperation or transaction with parties to the illegal situation in occupied Palestine. The Security Council resolution 2334 also recalls the 2004 International Court of Justice ruling on this point in connection with the Israeli wall, settlement enterprise and “associated regime.” (General Assembly resolutions further specificity the effective measures for states to take.[12])

Now, in this New Year, several auspicious commemorations deserve special note. Perhaps the most-obvious one is the centennial of the Balfour Declaration (1917), which saw a British Foreign Secretary promising to a settler movement to turn over a country that his government had no right to offer. However, precedent and just as relevant, too, is this 170th anniversary of the Congress of Lima (1847), which enshrined in a treaty[13] the time-honored and sacrosanct international law principle of uti possidetis, prohibiting the partition and recolonization of the territory of a people entitled to self-determination. The ultra vires Balfour Declaration followed 70 years hence, and its expression in the UN General Assembly recommendation to partition Palestine (A/RES/II/181, 29 November 1947) ironically fell on the centenary of that codified 1847 prohibition in Pan-American law.

Beyond such norms and their flouting contradictions, remembering Palestine at this New Year evokes at least the following commemorations for historians, analysts and campaigners to count down and consider throughout the 2017 calendar:

  • 170 years since enshrinement of the principle of nonrecognition and the prohibition against “partition” and “recolonization” by military or other means any territory whose people subject to self-determination process and independence, Treaty of Confederation, Congress of Lima (1847)[14];
  • 120 years since the First Zionist Congress and the founding of the World Zionist Organization (Basle, 1897);
  • 100 years since the British government`s “Balfour Declaration” (1917);
  • 85 years since the League of Nations adopted the Stimson Doctrine, recognizing occupation, colonization and population transfer as violations of international law (1932);
  • 75 years since the first explicit codification of population transfer as an international crime (January and October 1942)[15];
  • 70 years since the UN General Assembly’s partition resolution 181, and Zionist forces’ implementation of their village-massacre and terror campaign in Palestine (November 1947);
  • 65 years since UN General Assembly resolutions 615 and 616 determining apartheid to be a threat to international and regional peace and security; and since Israel’s “Law of Citizenship,” “World Zionist Organisation/Jewish Agency (Status) Law” and “Covenant between the Government of Israel and the Zionist Executive” (1952), formalizing institutionalized material discrimination against indigenous Palestinians, in favor of persons with “Jewish nationality” (i.e., persons of presumed Jewish faith), which favor is applied also to eligible citizens of other states;
  • 55 years since the UN Security Council determined Israel’s 16–17 March 1962 attack on Syria constituted a “flagrant violation,” and reaffirmed its resolution 111 (19 January 1956) condemning Israel’s military action in breach of the General Armistice Agreement[16];
  • 50 years since the June 1967 War and 50 years of Israel’s ensuing occupation in Palestine`s West Bank, East Jerusalem and Gaza Strip, and since the UN Security Council called on Israel to observe international humanitarian principles in its treatment of the inhabitants and to facilitate refugees’ return[17];
  • 45 years since the Security Council demanded Israel stop attacking Lebanon, [18] condemned its continuation[19] and deplored Israel’s refusal to release persons it had abducted in that neighboring country20 Israeli Foreign Minister Moshe Dayan’s false claim before the UN General Assembly that colonization of occupied territory and its elements (his term: “settlements”) are “legal”[21];
  • 35 years since the UN General Assembly specified trade, military and/or diplomatic sanctions as obligatory countermeasures to Israeli colonization (“settlements”)[22]; also since Israel’s war on Lebanon and UN Security Council calling on Israel to stop attacks against Lebanon and withdraw its troops, “condemning” Israel`s attack into West Beirut[23]; and the 35th anniversary of Israel’s organization and supervision of the Sabra-Shatila massacre (16–18 September 1982);
  • 30 years since the 1st Palestinian intifada started (December 1987), and Israel’s introduction of “administrative house demolitions” and “Jerusalem residency revocation” policies (1987);
  • 25 years since the Oslo negotiations and Israel’s “mass deportations” of West Bank Palestinians began (December 1992), and since the UN Sub-Commission’s study on “The Human Rights Dimensions of Population Transfer” (1992–93)[24];
  • 20 years since the Hebron Protocol (January 1997)[25];
  • 15 years since the Rome Statute on the International Criminal Court entered into force (July 2002), and since Israel’s attack on al-Darraj neighborhood, Gaza City (22 July 2002);
  • 10 years since the UN Committee on the Elimination of Racial Discrimination (CERD) cited breaches of Israel’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination to “prevent, prohibit, combat and eradicate all practices of apartheid in territories under its jurisdiction” (Article 3)[26];
  • 5 years since the UN General Assembly recognized the observer status of the State of Palestine (December 2012), and the second time that CERD found Israel in breach of Article 3 of the Convention.[27]

One of the recommendations from civil society participants to a September 2015 international meeting organized by UN Committee on the Exercise of the Inalienable Rights of the Palestinian People and the UN Division for Palestinian Rights has been to support a diplomatic and civil society campaign to commemorate 2017 as “Year of the Palestinian People,” recalling and reviewing relevant historic dates. A corresponding objective for 2017 rising from that meeting also echoed the repeated recommendation of the Russel Tribunal[28] and others to reconstitute the Centre against Apartheid as a specific function of the General Assembly (on this 55th anniversary of that Centre’s original establishment).[29]

As decades pass, meaningful reflection and evaluation of these significant dates in international law and diplomacy are in order. The impunity with which crimes and grave breaches continue against Palestine and its people also should give us pause, particularly as so many other actors in the Middle East region recently have been imitating Israel’s long-established behavioral model.

The yet-untried strategy to combat chaos in the Middle East region is the restoration of the rule of international law and world order. The crimes and breaches amid the events commemorated here give occasion for a normative New Year’s resolution. The current breakdown in the rule of law at the international level has been a key factor behindso much disaffection with the international system. The flouting of fundamental norms has become as much an inspiring cause as a casualty of the resort to violent conflict.

Let 2017 become the year to begin remedy and reparation of these crimes and grave breaches, the human suffering and other cumulative losses that accompany them. However, that aspiration can only be realized when the effort to resist and reverse these violations begins within ourselves and in our own conscious choices as thinkers, social actors, producers and consumers.

The lyrics of a seasonal carol propose: “Let there be peace on earth, and let it begin with me.”[30] This would make an appropriate New Year’s resolution, since the litany of lawlessness and complicit state behavior has taught us that we cannot continue relying on our spectacularly failed political leaderships to do the job.

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