Editorial: 60 years after the UN partition plan

Still no framework for peace that respects international law

Will the US-led Annapolis meeting fail, succeed, or even happen at all? Whatever the answer, one thing is clear: there is again no accountable process based on international law. In other words, the 'best' outcome will be another meaningless peace process, because it fails to take into account international law and best practice.

The refugee question is being discussed, informally and outside the realm of international law, under the politically-driven and 'pragmatic' approach advocated by the Quartet and other members of the international community. Tzipi Livni, the Israeli Foreign Affairs Minister, has stated that one of the main goals of Annapolis is to 'agree' that Palestinian refugees should be resettled in a future Palestinian state and not return to their homes of origin. This position has also recently been endorsed by the new French president, Nicolas Sarkozy, who said that Palestinian refugees will not return to Israel.(1) All this despite the clear legal framework supporting the right of Palestinian refugees and internally displaced persons to a remedy and reparation, including return, restitution and compensation.

 It is not surprising therefore that according to a recent survey by the Jerusalem Media and Communications Center, most Palestinians expect Annapolis to fail, although they still want to give peace negotiations a chance. But for such negotiations to have a chance, the rights of both peoples need to be recognized, those guilty of crimes against international law held accountable, and remedy provided. We are still far from this.

Indeed, the Quartet, the informal body self-mandated to lead the peace process based on the Road Map, does not take a rights-based approach to conflict resolution, but a so-called realistic-pragmatic approach based on power politics. The role of the UN in the Quartet is also questioned, in particular by the UN Special Rapporteur on the Occupied Palestinian Territory John Dugard, who stated in his latest report to the Human Rights Council in August 2007 that “instead of promoting Palestinian self-determination, striving to end the occupation and opposing the ongoing violation of human rights, the United Nations has chosen to give legitimacy to the statements and actions of the Quartet.” Indeed, the UN “acting through the Secretary-General, has ignored the views of the majority of its members and abandoned its role as guardian of international legitimacy.”(2) The rapporteur suggested that if the UN is unable to convince the Quartet to adopt an approach based on human rights law, international humanitarian law, the advisory opinion of the international Court of Justice and considerations of fairness and even-handedness, it should withdraw from the Quartet.

It is in this context of ongoing impunity that this issue of al Majdal examines the role of accountability in the Israeli-Palestinian peace process. It aims to contribute to the discussion on how Palestinian refugees and internally displaced persons, states, civil society and lawyers can and/or do hold accountable their representatives, Israel, the UN and other members of the Quartet.

There is not one definition of accountability; moral, political, legal, financial and other forms of accountability exist for individuals, armed forces and military personnel, companies, non-governmental organizations and international organizations. The Anti-Corruption Resource Center, which serves development agencies to more effectively address corruption challenges, says that accountability “denotes a relationship between a bearer of a right or a legitimate claim and the agents or agencies responsible for fulfilling or respecting that right”(3). The Humanitarian Accountability Partnership-International (HAP), a movement of aid agencies committed to strengthening quality assurance practice within the humanitarian system, states that “accountability is the countervailing force which confronts power and ensures that it is exercised responsibly.”(4)

The concept of accountability is thus closely linked with responsibility, which for international organizations refers to “the legal consequences of noncompliance with an international obligation by conduct that is attributable to the organization.”(5) State responsibility has been extensively studied by the International Law Commission, which concluded that an international responsibility “arises from the serious and manifest breach by a State of an obligation owed to the international community. Such a breach entails, for the State responsible for that breach, all the legal consequences of any other internationally wrongful act ... it also entails, for all other States, the following further obligations:

(a) not to recognize as lawful the situation created by the breach;

(b) not to render aid or assistance to the State which has committed the breach in maintaining the situation so created;

(c) to cooperate in the application of measures designed to bring the breach to an end and as far as possible to eliminate its consequences.”(6)

This issue of al Majdal includes, among others, a report from Badil, which analyzes the political context on the eve of the Annapolis Meeting and the need for Palestinian and international civil societies to build an anti-apartheid movement, including the Boycott-Divestment-Sanction (BDS) campaign, in order to hold Israel to account for its gross breaches of fundamental obligations (erga omnes) and peremptory norms of international law (jus cogens). A comparative analysis of the Bosnian and Palestinian peace agreements examines how peace agreements have addressed remedies for the crime of population transfer while another article discusses the role of refugees in bringing about an 'agreed upon' solution to the refugee question. Based on the concept of a responsibility to protect, an overview is presented of the actions states and international organizations can undertake to end Israel's violations of human rights and humanitarian law. Finally, the emerging principle of universal jurisdiction and its applicability to the Palestinian case is examined.

60 years after India's partition and the failed UN partition plan for Palestine, other articles in this issue examine Israel's manipulative use of the Indian case to justify its discriminatory regime over Palestine, assess the importance of building a Palestine lobby in the US, and report about current forced displacement of Palestinians, as well as recent efforts at building accountability.

Endnotes

(1) Aluf Benn, “Sarkozy tells PM: Palestinian refugees will not return to Israel” Haaretz, 23 October 2007.

(2) John Dugard, Situation of human rights in the Palestinian territories occupied since 1967, A/62/275, 17 August 2007, pp.3,20.

(3) Taken from the website of the Anti-corruption Resource Center. See: http://www.u4.no/document/glossary.cfm#accountability

(4) HAP -International Principles of Accountability. See:

http://www.hapinternational.org/en/page.php?IDpage=3&IDcat=10

(5) See the commentary on Article 1 reproduced in James Crawford, the International Law Commission's Articles on State Responsibility: Introduction, text and Commentaries, 77-80 (2002) in Gerhard Hafner, “Can International Organizations be Controlled? Accountability and Responsibility”, 97 Am. Soc'y Int'l L. Proc. 236.

(6) James Crawford, Third report on State responsibility, International Law Commission, A/CN.4/507/Add.4, Fifty-second session, 4 August 2000, p.24.