Available mechanisms to ensure accountability for violations of international law”

    The Hague, 20 to 22 May 2015 



The United Nations Roundtable on Legal Aspects of the Question of Palestine was organized under the auspices of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP) and hosted in the premises of the UN International Criminal Tribunal for the former Yugoslavia (ICTY).  The Roundtable reviewed legal mechanisms to ensure accountability for violations of international law – in particular with regards to the Geneva Conventions, the International Court of Justice (ICJ) and the International Criminal Court (ICC) – in relation to the question of Palestine.  Participants included international legal scholars and experts and twenty-five Palestinian participants from relevant Ministries of the State of Palestine and from its diplomatic missions in Geneva, The Hague, New York and Vienna.  The Roundtable was closed to the public and the media.

On behalf of the Chair, the Vice-Chair of the Committee, who presided over the Roundtable, recalled that on 1 April 2015 the State of Palestine had become a State Party to the Rome Statue and that in 2014 Palestine had also acceded to the Geneva Conventions and a number of other international treaties.  Together with the 2004 Advisory Opinion of the ICJ on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” these legal instruments constituted landmarks of the Palestinian people’s struggle to achieve and exercise their inalienable rights to sovereignty and self-determination.  They were also markers on the road of the Palestinian State to becoming a full-fledged member of the international community.

The Permanent Observer of the State of Palestine reviewed ideas being put forward by the international community on how to restart negotiations towards the achievement of a just, lasting and peaceful solution.  Current efforts by Member States at the Security Council should reaffirm the longstanding parameters for such a solution, on the basis of the two-State solution in accordance with the relevant United Nations resolutions, the Madrid principles and the Arab Peace Initiative, establish a timeframe for negotiations and implementation of the outcome, and launch a new round of collective negotiations leading to implementation of these parameters and conclusion of a peace agreement.  The Permanent Observer believed that achieving justice for Palestine was in everyone’s interest as the alternative could be an increase in instability and radicalization in the region.

In the ensuing sessions, experts noted that the State of Palestine could rely on different legal options to promote its rights.  Media attention had recently focused on Palestinian access to the Rome Statute of the ICC albeit the Geneva Conventions were perhaps more important for the State of Palestine, as all Member States of the United Nations were bound by them.  In its 2004 Advisory Opinion, the ICJ had reaffirmed the applicability of the Geneva Conventions to the Occupied Palestinian Territory, as had been repeatedly reaffirmed by the Security Council.  Accordingly, the Geneva Conventions clearly defined the obligations of the occupier and the rights of the occupied.

Expert presentations compared the divergent evolution of previously mandated territories.  The situation of the territory of South West Africa (today Namibia) evolved from a weaker legal standpoint compared to the Palestinian case.  In the 20 years passed before the Security Council took action a body of legal arguments and opinions had developed, which facilitated the end of the status quo and the realization of independence for Namibia.  Yet Palestine, with a stronger legal case, has not achieved independence.

Participants in the Roundtable visited the ICC premises and received in-depth briefings about its mandate and structure.  Later, they debated the advantages and disadvantages of referring cases before the Court.  There was also an in-depth discussion on how to address the issue of Israeli settlements in the Occupied Palestinian Territory, comprising East Jerusalem, under international law and including by the ICC.  The settlements undermine the Palestinian people’s right to self-determination as they involve a mesh of policies leading to the appropriation of land, changing the demographic composition of the Territory, forced the displacement of the Palestinian civilian population, demolition of properties, impunity for crimes committed by settlers against civilians, and the construction of infrastructure leading to a creeping annexation.  Experts also debated the reality as tantamount to Apartheid created by the settlements, with one set of laws applicable to them and other civil-military laws applicable to Palestinians, who should be instead the objects of protection.

Other legal options mentioned included seeking additional advisory opinions from the ICJ on topics that could include the legal consequences of Israel’s prolonged occupation, the illegality of the Gaza blockade and Israel’s exploitation of natural resources in the Occupied Palestinian Territory.  Experts believed that the concept of “prolonged occupation” could not be used as an excuse to dilute international obligations and rights or to annex territory as this would reward the occupier and be a reversal of international law meant to protect occupied peoples.  However, some experts cautioned against seeking another advisory opinion and questioned the value of it at this time and in light of the comprehensive advisory opinion of 2004, without excluding examining the possibilities to seek further advisory opinions in the future as necessary and appropriate.  In the case of settlements, the focus of legal action should be on the crime of “transfer of population by the occupier”.  Fulfilment of the State of Palestine’s reporting obligations pursuant to the international treaties, to which it recently acceded, was also seen as an important step for the State’s adherence to international law.

Several experts noted that new legal opinions and rulings could promote further positive and important changes in international public opinion and the emergence of a new discourse on Palestine. Israel’s ongoing disregard for international law, as expressed in the ICJ’s 2004 Advisory Opinion and United Nations Security Council and General Assembly resolutions, had generated increased awareness on the continuing injustice in Occupied Palestine.  And indeed, the increasing number of diplomatic recognitions of the State of Palestine – latest by the Vatican – was an admission that the Oslo agreements were outdated and that the right of the Palestinian people to statehood and independence was broadly recognized by the international community.  It was noted that other initiatives, such as “civil society tribunals” like the Russell Tribunal, also generate public awareness and political impact.  They carried moral authority and were useful in promoting awareness and changing perceptions on issues such as corporate responsibility.

Shifts in international public opinion were also important to promote compliance with international law; seeking the application of domestic law in national courts using arguments based on international law, rulings, and advisory opinions could influence perceptions and generate change.

Many participants expressed regret at the failure of Israel, the United Nations and the international community at large to respond adequately to the ICJ’s 2004 Advisory Opinion.  They stressed that this had negative consequences on the primacy and applicability of international law and lamented the fact that the impunity spanning for decades on the question of Palestine was still ongoing.  For some the credibility of international law was at stake, not just as regards the question of Palestine.  In this context, it was noted that Palestine making use of international law was a positive initiative, as it reaffirmed the central tenet of international society that legal mechanisms are an appropriate, peaceful means to resolve conflicts instead of resorting to force or “surrendering” to an unjust reality.  This was particularly true when diplomacy appeared unable to uphold international law.

Of the three very important interrelated rights of the Palestinian people, the right to self-determination had been covered by the ICJ’s 2004 Advisory Opinion.  However, the refugees’ right to return and compensation had not been fully addressed.  It was important that emphasis on collective national rights went hand in hand with the promotion of individual refugee rights.

In the closing session, the Permanent Observer of the State of Palestine to the United Nations recalled that Palestinians were constantly asked to “wait” and to engage in negotiation processes that have not produced much.  The Palestinian leadership would work to keep the question of Palestine at the centre of the international agenda.  The State of Palestine was seeking diplomatic recognition and using all legal means available in pursuit of the inalienable rights of the Palestinian people, including to sovereignty and self-determination.  If the Security Council was unable to take action at this time, the State of Palestine would seek other avenues available at the General Assembly.  As it was discussed during the Roundtable, Palestine had a strong legal case.  However, the example of South West Africa, which had a weak legal case but with strong political support achieved independence, was illustrative of the fact that legal victories alone were not sufficient.  The Permanent Observer expressed gratitude for the experts’ candid discussions and suggested that the group of participating legal experts become an ad hoc “advisory body” to the State of Palestine as it pursues its legal strategy.

The Vice-Chairman of the Committee summarized the outcomes of the Roundtable, organized in the spirit of international support for the Palestinian people to achieve their inalienable rights.  He highlighted the practical, capacity-building aspect of the Roundtable, which enabled the State of Palestine to develop its legal expertise.  The Committee would continue to assist the legal endeavours of the State of Palestine, and support the follow-up to this Roundtable.

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***Note: This Summary attempts to provide an overall picture of the deliberations of the Roundtable. A detailed report will be published by the Division for Palestinian Rights in due course.