Towards ‘Responsible Sovereignty’: Operational Experience in the Occupied Palestinian Territory 3 March 2009

Colleagues and friends:

My thanks go to the Prindle Institute and to DePauw University (my alma mater) for inviting me to join these discussions. I am pleased to be here to offer some thoughts on responsible sovereignty and the responsibility to protect. These are subjects with particular relevance for Palestinians and Palestine refugees in Gaza, where I live and work, West Bank and elsewhere in the Middle East.

As might be expected from the mandate of the agency I head, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (commonly referred to as UNRWA), the perspectives I bring are grounded in the experience of Palestinians and Palestine refugees whose sixty-year experience of dispossession and exile is unique among refugees the world over. Although Palestinians are rarely in the forefront of debates about the responsibility to protect, it is precisely their unfulfilled need for international protection in its broadest sense that makes their situation a powerful test of that concept.

I wish to spend a few moments on the difficult to define notion of sovereignty. Over the centuries, philosophers, jurists, theologians and scholars have wrestled with the concept, striving to shed light on its form and functions in human society.

We can see why sovereignty tends to fascinate. Implicit in it is a tension of opposites. Literally, sovereignty carries connotations of supreme authority. A sovereign answers to no one and occupies a lofty position above the law. In reality, however, supreme authority is subject to myriad caveats and impossible to reconcile with human imperfection, the intricacies of social organization and the complex demands of government. The limits of supremacy are particularly stark in the diffuse atmosphere of international relations with its collection of deeply inter-dependent States and entities. Thus, it becomes obvious that sovereignty may be understood only in terms of its limits. More than that, it is a concept that makes sense only if and when those limits are identified, clarified and enforced.

Over the past century, progressively greater curbs have been placed on our understanding of sovereignty in the real world. This trend has been a measure of the evolution of international relations and international law, most notably, the pivotal transition since 1945 to a multilateral global system of common allegiance to the United Nations Charter. I use the phrase "common allegiance" to highlight the element of mutual responsibility, which is a central characteristic of our modern framework of international relations. This is reflected in UN Charter provisions calling for: "collective measures…"; or for the achievement of "…international cooperation in solving international problems…" Joint action is, indeed, vital to the core mission of the United Nations.

Apart from cooperation in pursuit of shared interests, another defining feature of modern international relations is the parity human rights and the international rule of law now share with economic and political questions. The explicit recognition in the UN Charter and numerous other instruments of the inherent dignity and worth of every human being, means that people everywhere, as a matter of right, are within the contemplation of international law and entitled to claim its protections.

The concepts "responsible sovereignty" and "responsibility to protect" are woven from these related strands, namely, the shared responsibility of States acting jointly in the defence and advancement of the UN Charter’s stipulations, and the heightened significance of human rights and fundamental freedoms as normative, international obligations. Together, these precepts substantially circumscribe the scope of the "reserved domain" mentioned in Article 2 (7) of the UN Charter. It is true that the duty to ensure the human rights and protection of people in their own territories still rests with the concerned States and governments as matters "essentially within their domestic jurisdiction". However, the duty to protect is shared directly by the international community of States and the supra-national institutions to which they belong. [This means that the sphere of domestic jurisdiction is no longer entirely exclusive to States and governments.]

If we examine these concepts through the prism of the experience of Palestinians and Palestine refugees, we see that responsible sovereignty and the responsibility to protect are much easier to describe than to translate into reality for those in the occupied territory. We can suggest a variety of inter-related reasons for why this is so. Some stem from the peculiarities of the Palestinian condition and the degree to which that condition relates to the criteria for applying the concept of the responsibility to protect. Other reasons pertain to the international community itself and the seriousness – or otherwise – of its intent or ability to ensure that the responsibility to protect evolves beyond an attractive slogan to deliver actual protection to those who need it.

For these reasons, and in spite of Palestinians’ manifest need for international protection, it is not entirely clear that recourse to the responsibility to protect will provide them the immediate and effective relief they need. The Secretary-General, affirming the language of the 2005 World Summit Outcome Document, made it clear that the scope of the concept must remain confined to genocide, war crimes, ethnic cleansing and crimes against humanity. In his July 2008 speech in Berlin, he also pointed out that the responsibility to protect "is not a new code for humanitarian intervention" and that it should be distinguished from human security, which he referred to as a "conceptual cousin" to the concept.

This fairly rigid de-limitation of scope poses several difficulties for Palestinians who might wish to avail themselves of this protection. Genocide, war crimes, ethnic cleansing and crimes against humanity are the most egregious transgressions known to international law. Accordingly, they are politically sensitive and command a high standard of legal proof. An allegation that any of these crimes has been committed is controversial, certain to trigger denials, protracted and complex fact finding and legal proceedings.

In the occupied territory a charged atmosphere does little to address the immediate protection needs of the civilians who bear the brunt of such crimes. The experience with war crimes is instructive.

Since the second intifada began in the year 2000, intensive episodes of armed conflict have seen both Israelis and Palestinians conducting hostilities in ways that strongly suggest breaches of international law. In the recent 22 day conflict in Gaza, questions of accountability for war crimes were raised more pointedly than ever, in light of the firing of rockets by militants and Israel’s ferocious attacks on Gaza’s civilians and civilian areas with predictably high numbers of casualties.

These actions offer a clear opening if the international community moves quickly to establish the facts, hold the perpetrators to account and ensure redress for the individuals who suffered. The force and efficacy of international law will be demonstrated and the utility and practical value of the responsibility to protect could be proved beyond doubt. If, however, we allow ourselves to be mired in the political context and complex legal issues, justice will be delayed, if not denied, and we will have lost a real opportunity to advance the international rule of law.

For the people of the occupied territory, it is not particularly helpful that the trigger for the responsibility to protect is linked to the high threshold demanded of the most serious international crimes. Cumulatively, the Palestinian experience probably satisfies the criteria for "the most serious crimes of concern to the international community as a whole".

But the reality of the Palestinian experience is that the suffering they bear from day to day is inflicted by means that often fall below the standard of proof for the most serious crimes. There is the illegal separation barrier in the West Bank and its associated regime of movement restrictions, the closure of Gaza’s borders which deprives the entire population of a normal life, and there is as well the pervasive sense of deep isolation generated by the failure of the international community to ensure protection of civilians in armed conflict and to help Palestinians achieve their aspiration for a State of their own.

Much of what Palestinians need, to regain their dignity and to feel protected, could be achieved through reversing the immediate causes of their misery and through more vigorous efforts to assure them basic human rights and freedoms. In addition to focusing exclusively on high international crimes, the international community could give fresh, practical meaning to the responsibility to protect by investing political leverage in actions such as opening the border crossings and allowing freedom of movement of people, goods and currency, actions that are closer to the ground and more meaningful on a daily basis to civilians in need of protection.

There is another aspect of the responsibility to protect which is at odds with the Palestinian situation. In the Outcome Document, the responsibility to protect is addressed to "each individual State" and framed in terms of governments’ duty to defend those residing in their territories. Palestinian territory, comprising the West Bank and Gaza, has been occupied by Israel since 1967 and Palestinian claims to self-determination and statehood are yet to be realized. Given the criteria for applying the responsibility to protect, the non-existence of a Palestinian State poses a dilemma. It means there is no [Palestinian State] entity which can be held to account for the protection of the Palestinian people.

However, there is no vacuum of protection under existing rules of international law because the responsibilities of Israel towards Palestinians whose territory it occupies are grounded not in the responsibility to protect, but rather in Israel’s obligations under existing international law, including human rights law and international humanitarian law. The Palestinian Authority also has obligations to protect Palestinians as do military and political groupings in Gaza and the West Bank.

These considerations affirm another of the Secretary-General’s observations that is also fully acknowledged by the originators of the concept. The responsibility to protect concept makes no claim to novelty. It is a reformulation of principles and obligations found in binding international instruments, and it establishes a framework through which the enforcement of those obligations may be strengthened.

To illustrate the point, allow me to cite a few of the underpinnings of the concept. Article 56 of the UN Charter articulates the pledge of all UN members states to "take joint and separate action" to achieve the UN’s purposes. Article 1, common to the four Geneva Conventions of 1949, requires States "to respect and ensure respect" for international humanitarian law. And there is as well the international law concept of "universal jurisdiction" under which particular breaches of law may be prosecuted and punished by any State that acquires custody of a violator.

These and other similar rules existed long before "responsible sovereignty and the "responsibility to protect" were conceived and are, in fact, the legal grounding for these relatively new concepts. This means that the new concepts partake of the strengths as well as the weaknesses of the pre-existing legal framework, on which it relies for its enforceability. Unfortunately, it is the weaknesses that have been most striking in the Palestinian experience.

There is no lack of international awareness of the plight of Palestinians or of the implications of their situation for regional and international peace and security. Yet several vital requirements for responding effectively to their protection needs have been consistently absent. The international community – up to the highest levels of the Security Council – has often replicated the emotively divisive character of the Israeli-Palestinian conflict, precluding the consensus necessary for forthright, concerted action.

Questions relating to Palestinians’ human rights, freedoms and human dignity – matters that should be fundamental enough to frame the international community’s approach - have been masked or disregarded. In place of mustering the will to act, we have willed ourselves into inaction, allowing the situation to drift into conditions of ever deeper crisis. This paralysis has had - and continues to have - dire consequences. It has imparted a state of near stupor to the search for a genuine negotiated solution to the conflict. And it has given a free hand to a harsh border closure regime on Gaza, in place before the recent conflict and currently in its 22^nd month of severely and indiscriminately penalizing the entire population.

In the absence of consensus for concerted action on the part of the international community, both sides have considered themselves free from the constraint of being held to account under international law. They have interpreted this as license, progressively intensifying their violent encounters and in the process have called into question the effectiveness of the limits set by law on the permissible choice of weapons and methods of armed conflict. Given these considerations, in the occupied territory the "responsibility to protect" is treated, at least for the moment, as no one’s responsibility.

In any part of the world, and particularly in the occupied Palestinian territory, there are many risks to allowing the absence of consensus to continue to engender inaction, leaving the rules of international law unenforced. With every flagrant breach of law that goes unquestioned and unchallenged, with every civilian life that is lost or destroyed by force of arms deployed, the edifice of the international rule of law wears away. In its place emerges a habit of casual violence which is often delivered with sophisticated weaponry. This habit is spurred by an indifference to – perhaps a disdain for – the law and its consequences, because there is no memory of perpetrators being brought to justice. In the occupied territory, impunity openly flaunted has become the new sovereignty.

The responsibility to protect is a necessary addition to the array of frameworks that reinforce international law. It is a welcome reminder that human dignity is an overarching imperative which all States bear a duty to defend and promote. Much remains to be done to inscribe the concept in State practice and to give it practical meaning, not least by seeking ways to reflect within it people’s entitlement to basic conditions of normal life. Among the obstacles on the path to achieving its full potential, the most formidable is the reluctance of States to recognize the linkage between their political interests and their obligations to advance human rights and freedoms.

The Palestinian experience brings into sharp relief the potential of the responsibility to protect, as well as its pitfalls. One of its lessons is that essential to the notion of protection is to secure for every individual freedom from adverse interference. Whether that interference emanates from a State, an occupying power or agents of a political or military entity, the capacity to keep it at bay is part of the core of discharging the responsibility to protect. In the context of Gaza and the West Bank, this responsibility to protect could find its greatest expression if Palestinians were simply given the freedom to get on with their lives themselves. For those whose lives are blighted by occupation and war and their consequences, the ultimate protection would be the peaceful resolution of the conflict and the establishment of a State within which normal human aspirations can be pursued and fulfilled.