Cyril Foster Lecture
Palestine Refugees in their 60th Year: Issues of Human Rights
Public Policy and International Law, Oxford University, 27 November 2008
Distinguished guests, colleagues and friends:
It is an immense honour to be asked to give the Cyril Foster lecture for 2008. This honour belongs not to me, but to the Palestine refugees whose protection and care is the reason for the existence of UNRWA, the organization I head. For us, this occasion rings with weighty portents. It is the first time refugees are the express subject of this esteemed lecture and it is the year in which we mourn the passing of Mahmoud Darwish, whose poetry projected the Palestinian narrative with timeless elegance and power, and who, speaking as a Palestinian, declared, "We have triumphed over the plan to expel us from history".
This year, as well, as the world celebrates the sixtieth anniversary of the promulgation of the Universal Declaration of Human Rights, Palestinians mark sixty years of denial of many of the fundamental rights inscribed in that Declaration. Palestinians commemorate six decades since the occurrence of what they call the Naqba or catastrophe, the conflict of 1948 from which emerged the State of Israel and the genesis of Palestinian travail. It is in this year that we gather to ponder the condition of Palestinians and Palestine refugees and to consider how questions of human rights, international law and public policy reflect upon the refugee experience.
If there were any doubts about the universal relevance and urgency of our topic this evening, they must fade in the face of the legitimate, inextinguishable desire of Palestinians for a State they can call their own. The 4.6 million refugees in Jordan, Syria, Lebanon, the West Bank and Gaza and the estimated five million more Palestinians in the diaspora, cannot, and will not, be indefinitely denied or wished away. These are, after all, a people of antiquity whose heritage spans millennia and whose destiny and sense of being, in common with Jews, Arabs, Persians and others, are inseparable from the lands of the Middle East.
Antiquity, heritage and historical attachment to homeland are hardly unique to the Middle East. They are the universal currency of identity and community. Their essence is in the intense emotions evoked by the concept of home, that sense of "rootedness" which is central to who we are and our place in the world. When we consider what "home" signifies for us, we begin to understand what forced displacement and dispossession mean for refugees everywhere. We begin to appreciate how the pain of Palestinian loss is compounded – not diminished – as banishment continues year after year and as violence, of the kind that triggered flight, remains a recurrent part of the Palestinian experience of exile. We may also understand how, for all refugees, and for Palestinians in particular, healing and closure can be achieved only through an inclusive process, a process whose beginnings must be marked by the acknowledgement of injustices, the righting of grievous wrongs and the reclaiming of what has been lost.
These notions of "rootedness" and "home" that underpin the refugee predicament are more than mere sentiment. They find their expression in the law and practice of human rights and refugee protection. They form part of the reason why whenever arbitrary displacement and flight from persecution occur on a significant scale, they prompt obligations, not only in the humanitarian sphere, but also at the level of political actors. Frequently, they call for the attention and engagement of the United Nations Security Council, as refugee flight, beyond the primary consideration of human security, often implies the undermining of cross-border stability and poses threats to regional and international harmony.
The Palestine refugee situation is a classic example of the nexus between dispossession and threats to stability. That link is made more potent by geographic location. The question of Palestine is far from a lone contentious issue in the Middle East. The occupied Palestinian territory lies at the centre of a heavily militarized region, blessed with wealth and critical to global energy supplies, yet fraught with diverse tensions. It sits in the midst of unresolved questions of democratic governance, simmering disputes, ethnic and religious differences and the open theatre of armed conflict that is Iraq. Overshadowing all of these is the presence of Israel, a protagonist in regional conflicts and a close strategic partner in military-industrial, political and economic terms to some members of the Security Council.
These, then, are some of the reasons why the Palestine refugee condition warrants elevated concern on the international plane. Palestinians have become the embodiment of the anguish of dispossession and the trauma of exile, and will remain so until their cry for justice is heard. The Palestinian situation in general, the intensity of the underlying conflict and the elusiveness of a solution, particularly for the final status issues of Jerusalem, borders and refugees, call to mind the promises of the United Nations Charter and other international instruments.
I understand that the wish of Cyril Foster’s estate was for a "sincere speaker" to address the topic of "elimination of war and the better understanding of the nations of the world."
While I hope to contribute to a better understanding of the issue of Palestine, I shall also question whether we as an international community have been sincere in acknowledging the plight of Palestinians, or in fulfilling the promises we made to the people of Palestine. The question is whether, and when, we will live up to the words of the UN Charter: "to save succeeding generations from the scourge of war", "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person" and "to maintain international peace and security".
To speak about the human rights of Palestinians is to venture into a subject on which novelty is no longer possible, so presumably well known are the breaches of Palestinian rights and freedoms. If time permitted us to hold Palestinian lives in the occupied territory against the yardstick of the Universal Declaration of Human Rights, the conditions under which they live would fall short of the letter, as well as the spirit, of all 28 of the rights enumerated in that instrument. The same applies to other human rights instruments, which are obligatory in character, because they form part of the corpus of international law. Here, I have in mind particularly the UN Charter and the International Covenants on Civil and Political rights and on Social, Economic and Cultural Rights.
As we consider the occupied Palestinian territory from a human rights standpoint, bear in mind that since 1967 the territory has remained under an illegal military occupation. Neither the misleadingly termed "Gaza disengagement" in 2005 nor the recent, informal and fragile ‘period of calm’ in Gaza has altered this fact. The stark reality is that Palestinians have no effective control – or more accurately, no control at all – over the borders and airspace of the West Bank and Gaza or of the territorial sea of Gaza.
The continuing Israeli occupation of Gaza and the West Bank reminds us that human rights instruments cover only a portion of the rights to which Palestinians are entitled. The protections of international humanitarian law also apply, including with regard to obligations Israel bears as a signatory to the Geneva Conventions and as an occupying power, to protect Palestinian civilians and actively promote their well-being at all times – not only during armed conflict. The Palestinian Authority is also a duty-bearer vis-à-vis the protection of their compatriots as our other groups wielding various forms of authority. The extent to which the Authority and other groups are prepared to depart from their obligations became tragically clear during the violent conflict between Fatah and Hamas in June 2007.
The situation of Palestinians affirms the truism that while human rights are individually enumerated and discussed in normal discourse, in practice they are indivisible and composite because the violation of any one right implies, invites or results in the breach of others. In the occupied Palestinian territory, the deliberate denial of freedom of movement – grave enough in itself – constitutes the spearhead for threats to, or the abuse of, other rights. Rights protecting the physical integrity of the person are compromised when movement obstacles deny the medically-at-risk access to the specialized attention they need, or when incidents at checkpoints result in arbitrary arrest and detention. Child rights and rights protecting marriage and the family are breached when spouses, children and relatives are forcibly estranged by the permit system. Economic rights, the right to work and free choice of employment are similarly invaded by restrictions on access to Israel, Jerusalem, West Bank and other places of work.
In the West Bank, the movement of Palestinian people and goods is prevented or impeded by harsh physical obstacles, of which the illegal separation barrier is a particularly egregious example. A testament to Israel’s disregard for international law as expressed in the 2004 Advisory Opinion of the International Court of Justice, the illegal barrier now runs through the West Bank and through occupied East Jerusalem, severing many Palestinians from their lands and their places of birth on one or the other side of the barrier.
The barrier does not stand alone. Allied to it is an extensive network of some 630 fixed or mobile checkpoints manned by military or private security personnel, a matrix of security zones around settlements that Palestinians are forbidden to enter and roads they are prohibited from using.
The proliferation of physical obstacles has seriously compromised the territorial integrity of the occupied Palestinian territory. These obstacles have fragmented the land of the West Bank and corralled Palestinians into compartments that broadly correspond to seven main geographic subdivisions, including Gaza. Palestinian movement between these compartments is prohibited altogether for some, or subject to risks, restrictions and uncertainties for others.
Movement restrictions for Palestinians have many faces. The illegal barrier and its allied apparatus is only one of them. The splintering of the West Bank is another. However, the full measure of damage to Palestinian rights and dignity is in the combined effect of both physical obstacles and the complex administrative regime of identification cards and permits. This regime ensures Israel’s intrusive, hostile presence in each Palestinian life. No one is exempt. All Palestinians know full well who controls their movements – and in a real sense, their lives.
Residency permits – by which Israel decides where a Palestinian may live – are an inimical instrument of the occupation. With regard to Jerusalem in particular, they are a powerful method of limiting the presence of Palestinians and thus engineering the future ethnic, geographic and political character of Palestine. To obtain – or retain – permits to reside in Jerusalem, every Palestinian must satisfy Israeli authorities that the city has been continuously the "centre" of his or her life.
A distressing aspect of human rights infringements are those related to Palestinian housing and Palestinian land. An estimated 8,300 Palestinian homes have been destroyed since the second intifada began in the year 2000, while a further 70,000 have sustained various degrees of serious damage. Demolitions are a cruel invasion that many Palestinians contend with each day. In and around East Jerusalem, some 88 homes are currently on a list awaiting imminent destruction.
Consider an instance on 10 November this year, in Sheikh Jarrah, a suburb of East Jerusalem. 62 year-old Muhammad Al-Kurd, frail and partially disabled, and his wife Fawziyeh, lost their family home of more than 50 years. They were evicted by a force of 100 armed Israeli Police and Border Police bursting into their home at half past three in the morning. The couple was forced apart, still in their sleeping clothes. Muhammad was held by armed police in the main street, while his wife was detained in a neighbour’s home, which had also been entered by force. The Al-Kurds’ life possessions were removed, to be retrieved from storage at their own expense. Muhammad spent the evening in hospital receiving treatment for shock. This tale, tragic in itself, became even more sorrowful when Muhammad Al-Kurd passed away last Sunday.
Similar scenarios with minor variations continue to unfold across East Jerusalem. The mode of eviction and the outcomes nevertheless remain consistent. The coercive power of Israel is applied with overwhelming force. Families are humiliated and dispossessed and evidence mounts of what appears to be a scheme to reduce, and eventually end altogether, the Palestinian presence in and around East Jerusalem.
The situation in Gaza also demonstrates how restrictions on Palestinian movement are but a point of departure for multiple human rights violations and consequent human suffering. The informal ceasefire brokered in June had been Gaza’s most positive development this year. For Palestinians and the residents of Sderot, the calm translated into spared lives, the absence of injuries and relief from the stress of open conflict. However, despite the undertakings given by Israel, the ceasefire has little to show by way of easing the closure of Gaza’s borders.
The siege of Gaza remains undisturbed, with all its grave implications for the rights and freedoms of Gazans. Whenever rockets have been fired during the present calm, as occurred when hostilities erupted during the first week of November, the immediate shutting down of crossing points has provided a swift reminder of the power Israel wields. These incidents have underlined the inherently precarious nature of the present truce, making it clear that the threat of a return to open warfare remains a possibility as long as the underlying conflict is unresolved.
Article 11 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to "an adequate standard of living …including adequate food, clothing and housing and to the continuous improvement of living conditions". The policy of closure of Gaza’s borders ensures that these "standard of living" rights have no meaning for the majority of Palestinians in Gaza.
We are particularly concerned by the effects of the closures on the rights and freedoms of children and young adults who comprise nearly half of Gaza’s population. The right to education is abridged to the extent that among the goods denied entry into Gaza are supplies and materials for classroom use – pencils, stationary and paper and ink to produce textbooks – as well as construction materials for building new schools and maintaining existing ones. Hundreds of scholarship students studying abroad who came home to Gaza to be with their families during the summer have been denied exit to continue their studies.
In Gaza, as in the West Bank, the border closures and the permit regime are twin instruments. The effect of both is to deny the enjoyment of human rights and dignity, while ensuring the separation of Gazans from residents of the West Bank.
An invidious application of the permit regime was devised in November 2007. Prior to this date, it was possible for a Palestinian born in Gaza and registered as "a Gaza resident" to live in the West Bank and to marry a West Bank-registered spouse. No distinction was made between those registered as residents of either one of the two parts of the occupied Palestinian territory. Under the new policy, Palestinians registered as "Gaza residents" are required to obtain a permit to enter, or to continue to reside in, the West Bank, a permit not easily granted.
This more recent policy does violence to fundamental Palestinian rights and is destructive to the notion of the West Bank and Gaza as a single, integrated territorial unit from which a Palestinian State will some day emerge. It is of note that it was set in motion in November 2007, at the same time that Israel and the Palestinian Authority were solemnly declaring their commitment to achieving a two-state solution through the Annapolis process.
Following from these examples, let me offer a few reflections on what I see as the essential features of the human rights situation overall.
As the denial of freedom of Palestinian movement goes unchecked over time, the picture emerges of a people held in a state of cramped confinement on their ancestral land. Palestinians are hemmed in on all sides, by settlements and behind obstacles and barriers, with their liberty and living space rigidly circumscribed by boundaries, defined solely by what the occupying power perceives as its own interests. With time, given the natural increase of the Palestinian population and in the absence of strong objections – let alone firm action – by the international community, these boundaries are not only closing in, but are also taking on the ominous appearance of permanence.
The pressure to emigrate and the attractions of distancing themselves from all the suffering have never been greater for Palestinians. Over recent years, tens of thousands are known to have left the West Bank, and in fewer numbers, Gaza, for neighbouring countries and other continents. These are the so-called "lucky ones" who can afford to travel and who are able to obtain the necessary documentation to go abroad. They include skilled workers, professionals and businessmen who, very reluctantly, take their human and financial capital away from their homeland where they are most needed.
Another, less frequently acknowledged, observation is that the denial of liberty and movement is directed at Palestinians for no other reason than that they are Palestinians. In some instances and on its surface, the complex security and administrative machine appears to be a rule-bound system that allows Israeli authorities to distinguish between various levels of threat on the basis of ‘objective’ criteria, such as age, gender, marital and parental status. Are rights violations the incidental by-product of the application of the criteria, or is it simply the label "Palestinian" that is reason enough for breaches of human rights?
I fear we see much to suggest a blanket association of Palestinians with security threats in the eyes of parts of the world. Serious violations of human rights and freedoms flow from the failure – whether willful or negligent — to distinguish between the guilty and the innocent. That much is clear from the closure of Gaza’s borders, which visits punitive hardships on all 1.5 million Gazans without distinction. It is evident from the Israeli Security Cabinet’s designation in September 2007 of Gaza as a "hostile entity", a phrase with no meaning in international law, but one which is cited to justify imposing fuel and electricity shortages on all Gaza residents. It is apparent from the use of armaments that are indiscriminate in the death and injury they cause. And it is clear from the illegal barrier and its associated regime, whose indiscriminate impact is felt by all Palestinians in the West Bank.
I shall mention one more feature of the human rights situation, namely the role of the organs of State. Violations of Palestinian rights would not be possible without the backing of coercive state power. The cabinet, the legislature, the judiciary and the Israeli Defense Force each plays a part in developing, implementing and imparting a thin veneer of legality to the measures that cause so much suffering to Palestinians. This leaves little room for doubt that the infringement of human rights is not only state-sponsored, but is also a matter of priority at all levels of government.
The coincidence of these features – confinement of millions; collective targeting of Palestinians as a people; the lead role of the State as a sponsor of violations – has understandably prompted comparisons with the South African regime before the advent of democracy in that country.
Such a comparison brings into sharp relief the extreme straits of the Palestinian condition. The uniqueness of the Palestinian acquaintance with suffering is such that one searches in vain for contemporary or historical parallels. Perhaps we must go back to the nineteenth century to Oscar Wilde’s harrowing elegy, Ballad of Reading Gaol, with its haunting descriptions of the grim humiliation of incarceration and its penetrating depictions of the effects of imprisonment.
The vilest deeds like poison weeds
Bloom well in prison-air:
It is only what is good in Man
That wastes and withers there:
Pale Anguish keeps the heavy gate,
And the Warder is Despair
A regular feature of the Palestinian experience has been the inaction of the international community in whose plain view acts of inhumanity are perpetrated in the name of security. This silence is the mute complicity of political actors who have in their power the means to end this suffering, yet elect to remain deaf to repeated pleas for decisive action. Those who favour continuing on the path of apathy would do well to understand that "it is only what is good in man that wastes and withers" behind the walls we have built in Gaza and the West Bank.
The warning about the consequences of incarceration is pertinent in several respects. Experts have commented on the significant economic possibilities that are held captive by the abnormal conditions of Gaza and West Bank. During a visit to the Territory earlier this month, a senior World Bank official likened the potential of the Palestinian economy to a "coiled spring", waiting to burst into life whenever the closure regime is eased. Palestinians are being denied the opportunity to sustain themselves and to contribute to their own and the region’s prosperity. The oppressive conditions are also adversely affecting social and political attitudes. They are beginning to corrode the finest qualities of Palestinian society, including, in some quarters, its traditional readiness to embrace a progressive way of life and its openness to compromise, accommodation and tolerance. We have only ourselves to blame if by enforcing a blockade, we encourage an explosive mix of insularity, extremism and poverty.
There is one point, though on which we can be bold to contradict Wilde’s elegy. In another verse, referring to prisoners’ indifference to law, he states: "I know not whether Laws be right or whether Laws be wrong". In the Palestinian case, as far as international law is concerned, I feel confident asserting that, ‘The Laws be right," as we can point to the rich vein of international obligations that should govern the situation in the occupied territory. These legal duties bind all parties and actors to protect and promote Palestinian rights and to safeguard the well-being of civilians – Palestinian and Israeli alike — in all circumstances.
Breaches, no matter how frequent or grave, do nothing to diminish the force of international law. Palestinians, individually and collectively continue to be entitled to the protection of international law. There are overlapping aspects of the duty to ensure these protections. The responsibility of individual States derives from their membership in the United Nations, because the Charter is the overarching source of human rights obligations in our multilateral world. The UN Charter framework gives the force of law to resolutions of the UN Security Council and the General Assembly.
States bear individual responsibility when they sign, or accede to, human rights instruments and international humanitarian law treaties. As I indicated earlier, the Geneva Conventions on the law of war and related jurisprudence affirm that non-state actors have a duty to protect their compatriots. Worth mentioning are the duties arising from bilateral agreements, included among them the 1993 Oslo Accords and the 2005 Agreement on Movement and Access.
In addition to the responsibilities borne by individual States, there is a collective dimension to international obligations. The legal regime of the UN Charter requires for its functioning the acceptance by each State of a duty, shared with all others, to advance "the common interests of humanity." This is clear from Article 56 of the UN Charter, which articulates the pledge of all UN member states to "take joint and separate action" to achieve the UN’s purposes.
I mention these basic points to underline the breadth and clarity of the existing international legal framework applicable to the Palestinian situation. Generally speaking, the rules and their applicability are not contested. When breaches of international law are alleged in the oPt, the response is to question the facts or to profess overriding reasons of security. For example, Israel does not dispute per se the rules of international humanitarian law governing occupation or the duties of an occupying power. Rather, it denies that its hold on Gaza satisfies the Geneva Convention definition of "occupation". Likewise, Israel publicly accepts its obligations to protect civilians in armed conflict. But when Palestinian civilians are killed or injured, the explanations (or excuses) offered include "technological error", or the claim that that those affected were, in fact, combatants and not civilians. On the Palestinian side, ‘legitimate’ resistance to the occupying power, or retaliation, is claimed as the rationale for the firing of Qassam rockets at Israeli civilian targets.
The result is that in the Palestinian context, the pressing international law and international humanitarian law questions are those of efficacy and enforceability. These questions are posed with particular force by the toll of civilian injuries and death in this conflict. A Palestinian source estimates that the 5,526 Palestinians killed in the conflict since the year 2000 include 1,010 children and 340 women. 33,000 Palestinians have been injured of whom 3,600 suffered permanent disabilities. An additional telling statistic is that some 11,000 Palestinians are held in Israeli jails, including 117 women and 334 children.
Let us reflect briefly on why the protections of international humanitarian law have been so inadequate in the occupied Palestinian territory.
The law of war depends for its effectiveness on a number of assumptions. Protagonists are expected to recognize the obligation to preserve civilian life as an imperative at least on par with the desire to achieve a given military objective. They are expected to accept, as a matter of law rather than discretion, that where civilians and non-combatants are concerned, considerations of humanity override military calculations or security goals. All sides to a conflict are expected to regard compliance with international law as outweighing any benefits of violating it. In this regard, their relative military strengths should compel the combatants to exercise, of their own accord, restraint in the conduct of, and the choice of means for, armed conflict.
Beyond the parties themselves, the involvement of the international community is another premise on which the effectiveness of international law depends. The shared responsibility for enforcement is reflected in Article 1, common to the four Geneva Conventions of 1949, which requires States "to respect and ensure respect" for international humanitarian law. It is also present in the concept of "universal jurisdiction" under which certain breaches of law may be prosecuted and punished by any State that gains custody of a perpetrator. A shared enforcement role implicitly demands scrupulous impartiality and vigilance on the part of the community of States in identifying breaches and holding perpetrators to account.
In the occupied Palestinian territory, have the foundations on which international humanitarian law rests proved tenable? The experience of at least the last eight years seems to preclude an affirmative response to this question. In many military operations, lethal force was deployed with abandon, leaving the impression that the protection of civilians was not a priority. The vast asymmetry in the combatants’ arsenals militated against mutual self restraint. One side strongly believed it had nothing to lose, while the other was emboldened to test the limits of its military superiority. The motivation of each side to inflict maximum damage on the other was more potent than their readiness to subordinate their actions to the strictures of the law. Both sides treated compliance with international law as an unaffordable luxury.
Meanwhile, the international community has stood aloof, shirking its responsibility "to ensure respect for" international humanitarian law, thus depriving itself of an instrument of joint action. Some States have gone further. Rather than impartially holding the parties to account, they offer political and military aid to the combatants, further fuelling the spiral of violations and pushing the parties towards the abyss of a full scale conflict.
The informal Gaza ‘truce’ of June this year was a retreat from the precipice by parties who have no official relations. The fact that it happened at all, and not for the first time, is a reminder of the inevitability of stalemates in conflicts over issues that are essentially political in nature, and have at their core self-determination and other fundamental human rights questions.
If military objectives are inherently unattainable as appears to be the case in this conflict, precedence should be given to humanitarian considerations and mediated dispute resolution. Palestinians would not be alone in making this point. The argument could be echoed by hundreds of thousands of civilians around the world whom the laws of war and the nascent concept, "the responsibility to protect", have failed to protect. These are the millions whose lives have been lost or ruined by a system of law which entrusts the protection of civilians to the self-restraint of combatants.
Questions of the efficacy of law inevitably raise related inquiries about the consequences of the breach of law – issues of international responsibility, redress and justice. In the occupied Palestinian territory, a profusion of applicable law sits amidst an abundance of violations thereof, giving expression to the ancient saying, "Where you find the laws most numerous, there you also find the greatest injustice". The question is why there should be a dearth of accountability in an era of remarkable advances in enforcing individual responsibility under international law. The legacy of the Nuremberg and Tokyo trials of 1945 to 1949 is only just beginning to be realized with the establishment in 2002 of the International Criminal Court. Ours is a time when the myth of immunity – including sovereign immunity – from human rights abuses is wearing away, when former heads of state and senior officials and in one case the son of a former President, are being asked to answer for genocide, war crimes and crimes against humanity, and when indictments have been prepared for a sitting President.
What prevents Palestinians or Israelis from approaching the bar of international justice at this time? Given its duration and broad geo-political significance, the trends, incidents and effects of the Palestinian-Israeli conflict are comprehensively documented. Minute details of the circumstances and the impact of violations are recorded by journalists, researchers, rapporteurs and a variety of humanitarian and human rights entities, Palestinian, Israeli and international. The machine of the occupation boasts a unique level of sophistication, suggesting that its every move is probably tracked and registered in one form or the other. On occasion, even the motivations and intentions behind acts of State and the deployment of military force are on public record in remarkably candid statements by persons in authority.
Insufficiency of proof is not the impediment to holding Israeli or Palestinian perpetrators to account under international law. Rather, the hindrance to justice lies in another weakness in the evolving framework of international legal justice. I refer to the continued subordination of law to the political will of the States holding the greatest leverage on the political stage, including several with strong strategic ties to the occupying power.
This point is underscored by Article 13 of the Rome Statute of the International Criminal Court. Under this provision, the Security Council, by a resolution adopted under Chapter VII of the UN Charter, can refer to the ICC Prosecutor, cases over which the Court would otherwise have no jurisdiction. In March 2005, the Security Council invoked this power to refer the Darfur situation to the Prosecutor, paving the way for the indictment of a Sudanese minister and a militia leader.
This Article of the Rome Statute illustrates the potentially far-reaching influence of the Security Council on ensuring accountability for what the Statute refers to as "the most serious crimes of concern to the international community as a whole". However, the dim prospects for justice for Palestinians may be assessed from the fact that the United States and Israel signed the Rome Statue, only to "unsign" it later and openly criticize it. One of Israel’s objections was that the ICC was inclined to formulate what Israel regarded as "new crimes", such as "the transfer of parts of the civilian population of an occupying power into occupied territory", a crime clearly delineated in Article 49 of the Fourth Geneva Convention.
There is one thought from which those aggrieved by grave breaches of international law can take heart. In international law, justice delayed need not be justice denied. Crimes of genocide, crimes against humanity and war crimes are subject to no statute of limitations. A clear lesson of history is that these crimes cast long shadows. From the experience of Cambodia and Bosnia, for example, we can say that the wheels of international justice turn slowly. But turn they do and turn they will, in the fullness of time.
Yet time is one of the many precious things Palestinians do not have, or have spent too much of already. By any measure, sixty years is an unconscionable duration for any people to subsist in a state of beleaguered dispossession. Palestinians themselves have not been blameless. Inter-factional conflict has done much damage to the strength of their leadership and the integrity of their cause. Palestinian unity, until recently intact despite (or because of) decades of struggle, is now being threatened by divisions over ideology and the pursuit of power. Those holding the mantle of Palestinian leadership might ponder the thoughts of Kahlil Gibran:
Persecution does not make the just man to suffer,
Nor does oppression destroy him if he is on the right side of Truth.
What truly hurts is our conscience that aches when we oppose it,
And dies when we betray it.
Inter-factional fighting and the rift between Hamas and Fatah betray the justice of the Palestinian cause. In-fighting taints the purity of the national enterprise, saps the credibility of the claim to Statehood and undermines the possibility of support from international public opinion. The spectacle of Palestinians embroiled in vicious conflict is not compatible with their place as a people "on the right side of Truth". And most worrying, it is a spectacle that renders them more vulnerable than they have ever been to the destructive effects of persecution and oppression. The occupying power endeavors to keep Gaza and the West Bank apart. It would be most unfortunate if Palestinian leaders were working to the same end.
The internal struggle is a symptom of how far political leaders have strayed from the aspirations of ordinary Palestinians whose greatest wishes are for peace, internal harmony that enables economic self-sufficiency, an end to the occupation and a State of their own. As a matter of conscience and duty, a leadership needs to pay heed to the desire of ordinary people for reconciliation and unity in the body politic. It needs to respect the obligation to protect the sanctity of civilian lives, in this case whether Palestinian or Israeli. In spite of – and because of – everything the body politic endures, leaders need to recognize the advantages of keeping to the high ground of observing international law. The release of Corporal Shalit would be a move in this direction.
While Palestinian responsibilities should not be ignored, international political actors who hold in their hands the levers of power also have much to answer for. Through its policies – I refer loosely to the courses of action it has elected to take – the international community has directly contributed to the persistence of the unhappy Palestinian condition and to the elusiveness of a negotiated solution.
Examples of the link between the international community’s policy stances and outcomes inimical to Palestinians beyond those already mentioned include decisions regarding participation in the negotiations process. In all these instances, the international community’s policies contradict established principles and values of international discourse, and are at odds with the positive role it plays on humanitarian issues, not least in terms of the generous funding provided to UNRWA and other humanitarian and development agencies. They also go against the lessons from the experience of conflict resolution in other parts of the world. A salutary instance was the case of Northern Ireland where the "terrorist" label was set aside in the greater interests of peace, allowing a fully inclusive process which saw the end of a thirty-year political conflict.
The contradictions are of multiple hues. My earlier remarks outlined the misery and wretchedness caused to Palestinians by the occupation regime. The States lending their support to that regime are leaders of the world economy and global politics. They are the vanguard of wealthy, industrialized States and the world’s most successful practitioners of the free market, justice and human rights for all, fundamental freedoms and democracy. It is bewildering that there is so little evidence of these ideals in their approach to Palestinians. In the Millennium Declaration, assembled heads of States and Governments around the world solemnly pledged to "….spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty…" In the occupied Palestinian territory by contrast, the international community, through its imposition of, or acquiescence with, blockades and movement restrictions, ensures dehumanizing conditions and extreme poverty for Palestinians.
In other parts of the world, poverty, human suffering and a moribund economy are the incidental result of armed conflict or poor macro-economic performance. In the occupied Palestinian territory, they are the deliberate, foreseeable outcome of policies imposed by the international community.
Severe contradictions are also apparent when economic and trade perspectives are brought into the picture. With an average Gross National Income per capita of $21,900, Israel’s status in the higher brackets of middle-income countries is assured. A substantial contributor to its wealth and affluence is a high degree of integration with the economy of the industrialized powers.
How can we reconcile this picture of a thriving economic power, a powerhouse of research and development, with the image of the same State wreaking abysmal suffering on Palestinians whose land it occupies by military force? In this regard, comparisons with South Africa fall away. Trade sanctions and economic isolation were major instruments in the global reaction to South Africa’s transgressions. Leaving the authorities in no doubt about the illegality of the regime under international law contributed significantly to the end of apartheid. By contrast, Israel, which habitually breaches the human rights of Palestinians, and which regularly flouts international law, is welcomed and embraced as a worthy trading partner. What is more, it is allowed to subjugate Palestinians and constrict their economic and human development, while reaping in full the benefits of an open market with the rest of the world, including by exporting settlement products under a West Bank label, with all the exemptions that entails.
The contrast between global norms and the indignities the international community inflicts on Palestinians contributes to the isolation of the occupied Palestinian territory. It reinforces a tendency to regard Palestinian issues as detached from the mainstream of international law and practice, as a "special case" calling for different approaches and exceptional treatment, a treatment detrimental to Palestinian well-being. In this connection, the international community’s attitude is a mirror image of Israel’s approach to Palestinians in Gaza and the West Bank. Just as we neglect to offer Palestinians the normal protections of international norms, so too does the occupying power place Palestinians beyond the pale as regards its duties towards them. International policies thus become difficult to distinguish from those of the occupying power to the extent that both contain strong strains of adverse distinction vis-à-vis Palestinians.
This close likeness between the policies of the international community and the occupying power has significant implications for the search for a negotiated settlement. In particular, it has contributed to the perception, or the actuality, of the absence of an "honest broker", an indispensable prerequisite for successfully negotiating the peaceful resolution of disputes.
In the Palestinian situation, as elsewhere, reaching the end result will not suffice as an indicator of success in a negotiation process. An additional requirement is the acceptance of the outcome by the rank and file of the public, regardless of political affiliation. A number of factors contribute to the chances for popular endorsement of a peace agreement. The mediator should be of a certain stature and should be regarded by all sides as impartial on the principal issues separating the protagonists. Impartiality is key as it allows for appeals to be made to overarching international principles as a counterpoint to parochial interests. The participants’ profile should be such that constituents identify with, and perceive themselves to be well represented in, the negotiation process. The actors and conduct of the entire process should inspire confidence and trust among an appreciable number of those for whose sake peace is being pursued. Hence, an indispensable requirement for this is the need for all parties to exhibit good faith throughout the process.
For some time now, and particularly since the Palestinian elections of January 2006, these requirements have hardly been met in the negotiating process. Good faith, a necessary premise for any meaningful negotiation, is called into question when Israeli pronouncements categorically exclude any discussion of refugee return.
Another complicating factor has been the split between Fatah and Hamas since June 2007 and the latter’s exclusion from negotiations. These events and the policy positions taken by the international community compound the frailties of an already feeble peace process. Because of the international policy to isolate Gaza, those cast in the role of mediators are in an adversarial position to a large part of the Palestinian polity. Furthermore, the exclusion of one Palestinian faction from the process means that Palestinians loyal to that faction are effectively disenfranchised. The irony of this exclusion was exposed when the recent period of calm in Gaza was brought about through mediation via a third party between Israel and the very party denied access to the negotiating table.
The absence of refugee representation is another critical weakness in the existing negotiation process. There are reasons underpinning the designation of refugees as a "final status issue". Like the question of Jerusalem, it has profound emotive and psychological resonance for every Palestinian – and every Israeli. It is also an acknowledgement of the fact that Palestine refugees embody the collective sense and experience of Palestinian loss.
The practice of international refugee protection lends support to the pre-eminence of return among the three solutions to refugee situations. Since the 1980s, provisions in conclusions of the Office of the United Nations High Commissioner for Refugee’s Executive Committee place the solutions in a hierarchy. Priority is given to voluntary repatriation as the preferred solution, while resort to resettlement is warranted when neither local integration nor voluntary return to the country of origin is possible. The adjective "voluntary" is crucial. It affirms the critical importance of ensuring that refugees are fully informed and engaged in efforts to resolve their situation. The process of ascertaining refugees’ wishes and providing them with opportunities to make informed choices is the foundation for the justice and durability of any solution.
These considerations underline the need for the refugee voice to be heard and for refugees to be given the chance to exercise an informed choice. The stake of refugees in the negotiating process and its outcomes is high. We ignore it at our peril. A negotiated settlement will not be worthy of its name unless it commands the endorsement of the Palestine refugees. From this standpoint, current policy approaches give cause for concern. There is a tendency to regard the refugee issue as too thorny to be immediately tackled, one which is better thrust to one side until other aspects are agreed. Yet, while the question of refugees languishes in the shadows, it is undermined by a public narrative that emphasizes its demographic aspects and portrays it solely as a matter with existential implications for Israel. In effect, the failure to address the issue within a structured negotiation process allows others the space to impose their own politicized gloss, avoiding its human rights dimensions and obscuring its legitimacy as an authentic issue of international protection.
The setting aside of refugees from the negotiation process and its recasting in demographic and existential terms distracts attention from the valuable preparatory work that should be in train to clarify its parameters. At this stage we should be seeking answers to questions such as who will be entitled to avail themselves of the refugee component of a settlement. Those registered with UNRWA are the obvious, but not the only, candidates.
As things stand, assertions are made that the refugee issue will be resolved with no sign of a mechanism to ascertain the interests, views and preferences of refugees. From 1991 to the present, the search for a settlement has been marked by an array of agreements, plans, conferences and initiatives. Madrid and Oslo; the Geneva Accords; the Taba Agreement; the Aix proposals; the Hebron Agreement and the Wye River Memorandum; Camp David; the Beirut Summit and the Arab Peace Initiative; the road Map; and Annapolis. Where is the refugee presence in these processes? What is the refugee role? How can there be an attempt to resolve the refugee issue with no system in place to represent refugees? And how can a negotiated settlement be "just and durable" if refugees do not see themselves and their interests clearly reflected in its terms? The failure to take into account the refugee voice is tantamount to silencing it.
By neglecting to consult with refugees, we deny ourselves the advantage of fully exploring the available avenues for solutions. By keeping refugees from the negotiating table, the search for a settlement foregoes a rich and enlightening source of information, ideas and options for resolving these and other issues. A consultative, inclusive process of enabling refugees to arrive at informed choices is one which inevitably yields benefits to the search for peace itself. A pointer to the power of informed Palestine refugee voices was the 2004 Civitas Project out of Oxford – an inclusive, grassroots assessment of Palestine refugee needs and desires, including those in the diaspora.
We often make blithe assumptions about the choices refugees might make if we were to allow them that freedom to which they are entitled. On questions such as the right of return, for example, there is fear that the preference, if left to refugees, would be for a return en masse. From my own experience with other groups of refugees, I can say that refugees often surprise us with the wisdom of their choices – if, that is, we enable and empower them to choose.
Distinguished guests, colleagues and friends:
The Palestinian situation is like no other in the history of struggles for liberation. We observe their pain from afar and deduce its magnitude by intuition. Though what we sense is dire enough, their anguish is such that we will never really know the full measure of the indignities they endure. We perceive their plight as we do reflections from sheets of shattered glass. Our sharpest observations are at best a jagged outline.
What is more, our views are filtered through the myriad prisms of our own non-Palestinian experience. Our understanding of the Palestinian condition is stained by unwitting preconceptions of who Palestinians are, by our unconscious acceptance of the occupiers’ and others’ typecasting and by the success of the policy to isolate and imprison Palestinians.
In the face of the wretched condition we have lent a hand in inflicting, we rationalize and we make excuses. We contrive to find pretexts behind which we hide our silence. Or, furtively, we look the other way. Yet we know, as all nations and peoples know, that the conditions under which Palestinians live are beyond law and reason, beyond logic and sophistry. Their situation cannot be justified or defended. The Palestinian experience disfigures the contours of human rights, international law and policy to the point where nothing is as it should be.
The land of Palestine may be physically distant, but we are not immune from the warping influence of the aberrant situation there. For when we look at Palestine, the jagged figure we see is the spectre of our own failure at allowing Palestinian travail to persist for so long.
Still, there is yet time to act and there is yet hope. That hope lies in the clarity of the path we must follow. We must fulfill our promises to the people of Palestine. We must act to afford them the freedom and dignified lives denied them for so long. And, we must lend our efforts to the creation of a viable, vibrant State of Palestine, a State in which Palestinian destiny may at last be recovered.
Document Sources: United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Subject: Human rights and international humanitarian law, Refugees and displaced persons, Security issues
Publication Date: 27/11/2008