May 30, 2013
RAMALLAH — June 5 will mark the 46th anniversary of Israel’s occupation of the Palestinian West Bank, Gaza Strip and East Jerusalem following the 1967 war.
After decades of Israeli colonialism, settlement expansion and land confiscation, Israel’s hold on the Palestinian territories appears ironclad. One of the country’s most right-wing and pro-settler governments is at the helm, the so-called "peace process" negotiations have been stalled for years and Israeli settlements continue to swallow up more Palestinian land.
Frustrated by this reality, and by the international community and Palestinian leadership’s inability to hold Israel accountable, Palestinians are searching for alternatives, including both direct and third-party appeals to international tribunals and foregoing the longstanding strategy of using international humanitarian law to protect Palestinian rights.
"International humanitarian law is not sufficient. It has some positive elements, but it’s not sufficient. It shouldn’t be the only legal term of reference for the Palestinians," said Zakaria Odeh, director of the Civic Coalition for Palestinian Rights in Jerusalem.
"International humanitarian law confined our discussion to the areas occupied in 1967. What we have is a colonial apartheid regime in Palestine, and that includes what happens with the Palestinians in Israel, who have Israeli citizenship, Palestinians in the diaspora and what’s happening in the West Bank and Gaza."
International humanitarian law
Since the Israeli occupation began in 1967, both local and international human rights groups operating in the area have based much of their struggle against Israeli policies on the tenants of international humanitarian law.
Also known as the laws of war, international humanitarian law is a set of regulations that aims to protect individuals who are not directly involved in armed conflicts and limit the means of warfare that state and non-state parties are allowed to use. This includes, in particular, which weapons and military tactics are permissible.
In essence, international humanitarian law seeks to create a balance between an occupying power’s security and military considerations, and the rights of an occupied civilian population. These regulations are set out mainly in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949.
The Fourth Geneva Convention is regularly used, for example, in the case of Israel and Palestine, to point out the illegality of Israel transferring part of its population to Jewish-only settlements in the West Bank.
Among other things, the Hague Regulations state that an occupying power must respect the laws in place in the occupied territory and provide the occupied population with adequate protections, including healthcare and food.
It also prohibits an occupying power from conducting any mass or forcible transfers of the local population, collective punishment and the destruction or seizure of property, among other things.
Still, there is no mechanism for enforcing international humanitarian law — or any other international law, for that matter — and there are no bodies that can compel states to comply with these regulations. This leaves governments open to ignoring serious breaches of international humanitarian law. In the case of Israel, this is largely accomplished by arguing that international humanitarian law doesn’t apply to the occupied Palestinian territories.
Prolonged military occupation
No tenet of international humanitarian law explicitly outlaws military occupation or judges an occupation’s legality. Further, a major component underlying the Hague Regulations is the assumption that military occupation is a temporary situation.
But what about Israel’s occupation, now spanning nearly 46 years?
"What is discussed by lawyers and diplomats, in the language of international humanitarian law, is really [a discussion] that doesn’t reach the situation of an extended form of settler colonialism," explained Richard Falk, United Nations special rapporteur on Palestinian human rights in the occupied territories, at a conference on international law held at Birzeit University in early May.
Speaking to a packed conference hall via Skype, Falk explained that a new "positive law" paradigm must be created to protect Palestinian rights under Israeli control and better address the many facets of Israeli occupation, including apartheid and ethnic-cleansing policies.
Establishing a new international treaty that can deal with situations of prolonged occupation — an occupation lasting five years or more — is crucial, he added, but would require significant political will.
"We must abandon this notion that international humanitarian law as it’s written is sufficient to cope with reality," Falk said, adding, "The language of international humanitarian law no longer corresponds to the realities of oppressive existence that confronts the Palestinian people."
In 2009, after Israeli human rights group Yesh Din submitted a petition challenging the legality of Israeli quarries using the resources of the West Bank, the Israeli Supreme Court itself stated that the rules change when occupation is long term. The court made this decision, however, to justify expanding the occupier’s powers, while reducing restrictions on its authority that would otherwise protect the occupied population.
"Quarrying natural resources in an occupied territory for the economic benefit of the occupying state is pillage, and the court’s reasoning that a long-term occupation should be treated differently cannot legalize an economic activity that harms the occupied residents," said Yesh Din's legal advisor, attorney Michael Sfard.
Using international mechanisms
In November of last year, the Palestinian Authority (PA) upgraded Palestine to "non-member observer state" status at the United Nations. In theory, this largely symbolic move allows Palestinians to join UN bodies and apply for membership to the International Criminal Court (ICC), where it can attempt to hold Israel accountable for alleged war crimes.
"We believe, unfortunately, that the PA went to the UN not as part of a strategy … but because they felt that they reached a deadlock with the negotiations," said the Civic Coalition’s Zakaria Odeh. "They can use it as a card just to put pressure on Israel and the Americans. I don’t think that the PA really will use these mechanisms as part of a strategy."
Since receiving its upgraded status, the PA has regularly threatened to file international complaints against Israel, though no concrete action has been taken and the threats seem largely political in nature. Recently, the PA announced that it would postpone making appeals to the ICC in order to give US-brokered peace talks a chance to resume.
Odeh told Al-Monitor that bypassing the PA — and, for example, asking third-party states to appeal to the UN or to international courts on the Palestinians’ behalf — may be the only way to hold Israel accountable.
Palestinians used this strategy in 2004 to push Arab states to bring up the issue of Israel’s separation barrier in the West Bank at the United Nations General Assembly, which in turn asked the International Court of Justice to assess the wall’s legality.
In a non-binding, advisory opinion that was immediately rejected by the Israeli government, the court found that the separation wall was illegal. It ordered the existing sections dismantled and Palestinians compensated for damages.
Similarly, the ICC recently began investigations into the Israeli navy’s killing of nine Turkish activists aboard a Gaza-bound flotilla in 2010, after an appeal from the small island nation of Comoros.
"[Third-party states] have a duty to stop the state which is committing these crimes or these violations," Odeh said. "We call upon the international community and other states to be responsible and stop these violations that are committed by the Israelis."
Jillian Kestler-D'Amours is a Canadian journalist and documentary filmmaker based in Jerusalem. She is a regular contributor to the Inter Press Service news agency, Al Jazeera English and Free Speech Radio News. On Twitter: @jilldamours