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Responsibility to protect Palestinian refugees

Written by  Jeff Handmaker

when international authorities fail

Violations of human rights and humanitarian law, particularly when systematically carried out with no regard to their consequences, demand that other states and international organisations not simply take notice, but take action. The legal basis for proportionate and “effective” (1) responses to such violations are gaining momentum through an emerging international legal principle of the responsibility to protect, which forms part and parcel of state responsibility. The responsibility to protect is firstly a duty to ensure that mechanisms are in place to prevent violations from taking place (2) and secondly a duty of states, acting in their individual or – ideally – collective capacities, to intervene in order to protect civilians from potential or further violations.(3)

In his report of August 2007, UN Special Rapporteur, Professor John Dugard was harshly critical of the failure of the United Nations, as a member of the Quartet, to protect Palestinians and ensure respect for international law and human rights.

The Security Council has largely relinquished its powers in respect of the Occupied Palestinian Territory in favour of ... the Quartet. ... without a founding resolution or mandate from either the Security Council or the General Assembly. ... The Quartet does not see it as its function to promote respect for human rights, international humanitarian law, the advisory opinion of the International Court of Justice, international law or countless United Nations resolutions on the subject of the Occupied Palestinian Territory.(4)

When international authorities fail in their responsibility to protect, states, regional bodies (such as the EU) and also civil society have important roles to play in ensuring that international law is promoted as a determining framework to protect human security and resolve conflicts. As the International Court of Justice has confirmed on numerous occasions, States have legally binding obligations to hold other states to account to prevent violations of international humanitarian law.

State responses to violations of human rights and IHL

There are several possible interventions available to states, acting on their own or collectively, to put pressure on a belligerent state in order to prevent or stop violations of international humanitarian law. Umesh Palwankar has produced a useful overview of possible state responses, in order of severity, from state protests to collective, armed intervention.(5)

Exercising diplomatic pressure through protests and denunciation

States can challenge violations by other states through stepped-up phases of diplomatic pressure, beginning with protests. Official protests are directed either towards the ambassador and other diplomatic representatives representing the alleged violating state or directly to the government of the alleged violating state via one’s own diplomatic representatives. In order to be effective, Palwankar argues that such protests be “vigorous and continuous”.

A further level of diplomatic pressure is public denunciation of another state, preferably by more than one state and ideally through an influential organisation such as the Council of the European Union or the Security Council of the United Nations. An example was on 20 December 1990, when the USA called on the UN Security Council to denounce Israel’s deportation of Palestinian civilians from territories occupied by Israel and to “comply fully” with the provisions of the Fourth Geneva Convention.(6)

Diplomatic pressure can also be exercised against “intermediary” states, particularly when it is alleged that they are co-responsible for violations taking place, for example by providing arms, training and other equipment used by a belligerent state to violate human rights or humanitarian law. This is particularly relevant in the case of the USA and its role in arming the Israeli military.

Calling states to account through fact-finding missions

Palwankar refers to international fact-finding commissions as a further means of exerting pressure against alleged violating states. Such mechanisms operate under the auspices of the United Nations and regional political organisations, which have established various committees and special rapporteurs to gather information about a particular issue and report back to the organisation on recommended measures that could be taken against an alleged violating state.

Such commissions draw their legitimacy from a state (or group of states), who declare their acceptance of the competence of that body and their desire to approach it, even if the alleged violating state itself has not declared its acceptance. Such diplomacy in the establishment of a fact-finding commission can itself be a means of inducing a state to take steps to suppress continued violations of international humanitarian law. A refusal to accept a commission can be “publicly regretted” by states.

Matters can also be referred to international tribunals, notably the international Court of Justice (ICJ), which has the capacity to issue binding decisions concerning disputes between states, provided both states explicitly accept its jurisdiction. The ICJ also has the authority to receive requests from the United Nations to issue an advisory opinion on the application of international law to a given situation.

Holding states to account through retortion and reprisals

If “diplomatic” measures prove to have little or no effect against a state’s violations of international humanitarian law and human rights, then more aggressive options become available, though most options still fall short of armed intervention. Palwankar explains, by reference to various examples, that states have authority to respond by way of acts of retortion or reprisals. Acts of retortion are designed to leverage external political pressure against an alleged violating state. Such measures, though “unfriendly”, are intrinsically lawful, provided they are carried out in direct response to an act of state that may also simply be unfriendly (and lawful), or internationally unlawful. State reprisals, on the other hand, are counter-measures and thus by definition unlawful acts, though considered to be exceptionally justified in light of prior unlawful acts committed by the belligerent state to which they are directed.

Acts of Retortion

A state that is believed to be violating international humanitarian law can face expulsion of its diplomats and/or severance of diplomatic relations with other states. Such measures are exercised as temporary, though forceful responses. For example, the government of Venezuela recalled its ambassador from Tel Aviv in the summer of 2006 in protest at Israel’s attacks on the civilian population in Southern Lebanon.

Further steps include halting ongoing negotiations on bilateral or multilateral agreements with a violating state, or refusing to ratify agreements already signed with a violating state. Such measures often concern trading agreements that provide for preferential terms of trade, for example Israel’s Association Agreement with the European Union. The EU includes Israel’s largest trading partners, as such the Association Agreement could be a substantial means of exercising combined political and economic pressure against Israel’s belligerence.

Reprisals

When a state still refuses to comply and continues to violate international humanitarian law with impunity, further counter-measures can be taken by individual or groups of states against a belligerent state. As with the above, most of these measures do not involve armed intervention, though they may well aim to reduce the military capacity of the belligerent state concerned.

Trade restrictions, bans on direct and/or indirect investment in a belligerent state and the freezing of capital held by nationals of a belligerent state are steps beyond state acts of retortion that aim to do more than simply remove trading privileges, but to place direct pressure on a belligerent state’s economy. In order to be most effective, such restrictions should focus directly on the mechanisms of state repression, in particular the banning of military and other state security equipment. However, long-term efforts often demand broader trading restrictions. Such restrictions are intended as a means of punishing a belligerent state by way of economic sanctions and potentially a much broader official boycott.

For example, the Government of France in 1985, later followed by the United Kingdom, The Netherlands and eventually the USA, banned all new investment in the Republic of South Africa in response to the Apartheid regime’s increasingly repressive and violent repression against the country’s majority black nationals.

A final measure of last resort that states can exercise against a belligerent state are armed interventions. Such measures must satisfy a range of minimum requirements, discussed by others, not least the High Level Panel.(7) Armed measures must only be carried out under the auspices of the United Nations Security Council in reference to chapter VII of the UN Charter. Under Chapter VII, this may involve explicit delegation from the Security Council to regional security agreements such as the North Atlantic Treaty Organisation (NATO).

Responses to violations from civil society

When both states and international authorities fail in their responsibility to protect, as the Quartet has clearly demonstrated, civil society organisations often present the last hope for ending a violent and/or repressive regime or to prevent mass violations of human rights. In this context, it is important to emphasise that civil society (see below) exercises a tertiary role in the responsibility to protect, with the primary purpose of such interventions being directed at urging states to take action.

This complex process of claiming rights, either directly (against a violating state) or indirectly (via a third state) are important components of the responsibility to protect. Individuals, both on their own and through collective mechanisms, are increasingly holding states to account. This is achieved through an ever-growing array of national, regional and international mechanisms.

Beyond direct and indirect claims, there are many other human rights advocacy strategies that civil society organisations can follow in seeking to hold authoritarian regimes to account. Examples of these include public shaming and boycott and divestment actions. As discussed in a previous Al-Majdal article(8), bringing about change in a country that persistently refuses to abide by international law (such as the South African Apartheid regime) is not an easy task, but it is by no means insurmountable.

International legal responses to the Palestinian refugee crisis

There is no issue that has received more attention by the United Nations than the conflict in Israel / Palestine. Beginning with the 1947 UN Partition Plan, the UN has consistently sought to uphold international law as the context in which the conflict ought to be resolved and in which refugees are to be protected, but sadly, with only marginal success.(9)

The UN recognised its responsibility to protect Palestinian refugees back in 1948, with the creation of the UN Conciliation Commission on Palestine (UNCCP) in 1948 and the UN Relief and Works Agency (UNRWA) in 1949. The creation of these two institutions was to ensure, respectively, protection of and assistance to Palestinian refugees. The mandate of the UNCCP is enshrined in UN General Assembly Resolution 194 of 1948,(10) although the UNCCP ceased all effective activities a few years later.

In July 2004, following a request by the United Nations Secretary General, the International Court of Justice in The Hague delivered an advisory opinion on the legal consequences of the construction of a Wall in the occupied Palestinian territory.(11) As with every judgement it issues, the ICJ’s conclusions in an advisory opinion are more than mere rhetoric, they represent the most authoritative statement of the content and applicability of international law. As discussed in previous issues of Al-Majdal, the court’s judgement proved significant in an umber of relevant aspects, including a confirmation that third states also have obligations.

Unfortunately, there has continued to be a persistent failure on the part of the United Nations, European Union and most individual states to hold Israel to account and protect Palestinians. States indeed continue supporting Israel and its military occupation, despite such actions clearly violating international law.

The consequences have been disastrous. Israel’s non-recognition of the right of return, coupled with its illegal annexation of land and control of movement in occupied Palestinian areas, has resulted in 55, densely-populated Bantustans and a decades-long exile in refugee camps. Civilian areas, including refugee camps, are regularly subjected to attacks by the Israeli army, whether through indiscrete policies of extra-judicial assassinations or collective punishment.

Conclusions

With prevention of human rights and humanitarian law violations at the core of the responsibility to protect, states and international organisations have expressed a renewed commitment to respect international law and protect vulnerable populations.

In finding away forward, it is helpful to recall two of Professor Dugard’s most recent recommendations.(12) In addition to recalling states' independent obligations to hold Israel accountable, Dugard advised the UN Secretary General:

If the Secretary-General is unsuccessful in persuading the Quartet to act as proposed above, the United Nations should cease to give its imprimatur to the actions of the Quartet and should withdraw from the Quartet.

And to the UN General Assembly:

The General Assembly is urged to request the International Court of Justice to give a further advisory opinion on the legal consequences for the occupied people, the occupying Power and third States of prolonged occupation.

When the United Nations and states fail in their responsibility, it is left to individuals, global citizens acting on their own or through NGOs, who can take steps on their own account, including boycott, divestment and sanctions, until international law is respected. At the other end of the international law spectrum is still the ICJ, which as Dugard reminded, resolves disputes and advises the UN in international crises. All have a key role to play when international authorities fail in their responsibility to protect.

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Jeff Handmaker is lecturer in Development, Human Rights and Governance, Institute of Social Studies, The Hague. This article is an abbreviated version of a chapter originally published in The Responsibility to Protect: Ethical and Theological Reflections,WorldCouncilofChurches:Geneva,2005anddrawspartly on a presentation by Susan Akram and Jeff Handmaker, ‘Legislative and political advocacy: the obligations of Governments under international law’, United Nations International Conference on the Question of Palestine, New York, Sept 2004.

Endnotes

(1) Effective Strategies for Protecting Human Rights, David Barnhizer (ed), Ashgate, 2001.

(2) Marco Sassoli, ‘State responsibility for violations of international humanitarian law’, IRRC, Vol 84, No 846, June 2002 argues that “the focus of implementing mechanisms is and must always be on prevention”, 401.

(3) The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (ICISS Report), December 2001; A More Secure World: Our Shared Responsibility, Report of the High Level Panel on Threats, Challenges and Change, December 2004; In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General of the United Nations, March 2005.

(4) Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, United Nations General Assembly, 17 August 2007, Ref: A/62/275.

(.5) Umesh Palwankar, 'Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law', International Review of the Red Cross, No. 298, February 1994, p.9-25.

(6) Palwankar, Ibid.

(7) Above, note 4.

(8) Handmaker, J., ‘Palestine Does Not Have to Bargain to Obtain its Human Rights’, Al-Majdal, Issue 25, Spring 2005.

(9) Countless books and articles have been written about this. See: www.reahamba.nl/palestine/biblio.pdf

(10) United Nations General Assembly Resolution 194 (III), 11 December 1948.

(11) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, International Court of Justice, 9 July 2004.

(12) See note 5, above.

 

Jeff Handmaker

Jeff Handmaker

Jeff Handmaker teaches human rights, development and social justice and conducts research at the International Institute of Social Studies (ISS) of Erasmus University in The Netherlands. He is a member of the Editorial Committee of Al-Majdal and of Badil’s Legal Support Network.