International Humanitarian Law – Jonathan Kuttab

And now what? A realistic approach to the Israeli-Palestinian impasse

Jonathan Kuttab, international human rights lawyer — Tue, 03 Mar 2020 21:36:38 +0000

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March 2, 2020

The announcement of Donald Trump’s “deal of the century” was a rude shock, roundly condemned by almost everyone concerned with peace and justice between Israelis and Palestinians. But it also presents an urgent challenge for all those who reject it because they realize the dire implications of what it portends for the future of any peaceful negotiated solution. It unmistakably marks the death of the two-state solution and presents a vision of how Israel would like to live with a permanent grip over the entire territory and the lives of all Palestinians currently under its control.

If a genuine two-state solution is truly dead, and an equitable one-state solution is even harder to achieve, then where does that leave us? What is, or should be, the agenda for the foreseeable future for those concerned with the Israeli-Palestinian issue.

For Israel and its ardent supporters: The occupation has gone on for far too long. The excuses for failing to make peace have grown very thin and are no longer believed, even by its own friends. For the foreseeable future, Israel holds all the cards and must alone determine how it wishes to play them. It can no longer claim it has “no partner for peace” as a pretext for not moving forward. It controls Palestinians, their lives, their movement, and even their leadership. It holds levers over all aspects of their lives, and acts as sovereign and owner of the entire land, unrestrained by anything (including international law, or the international community). It has successfully deflected all acts of resistance and all outside pressure. It still needs to determine, at least for its own purposes, where it wants to go, and what it should do. The collapse of the moves for Palestinian statehood (celebrated by some) forces the issue of: What then? Do we rule over Palestinians forever, as noncitizens? Can we accept in perpetuity that our Jewish state can only treat Palestinians as unequal in Israel; occupied in parts of the West Bank; totally besieged in Gaza; and permanently barred into exile in their diaspora? And if so, how do we Israelis plan to “manage” this situation as a permanent state of affairs? How can we best deal with another people that we rule, but in line with our own ideals? Palestinians are going nowhere, so how we deal with them (sans excuses) is part of who we are or have become.

For Palestinians: As hopes for a genuine independent state collapse, and the one-state solution appears even farther away, how do we struggle for our rights and dignity, and build for ourselves and our children a better future? Submission to the existing injustice is not an option. Can we find methods that are effective and goals that are achievable? Surely violence has not served us well and is not likely to succeed against such enemies, who are immeasurably more powerful, better armed and organized, and strategically and tactically dominant on the battlefield — and paranoid to boot. Nor can we expect salvation from either the Arab states, Europe, or the outside world, all of which are too consumed with their own problems and too heavily invested in their relationships with Israel to seriously challenge the status quo. What else can we, Palestinians, do? Can a more assertive and better planned and organized non-violent campaign of resistance serve us better?

For third parties who are concerned about peace and justice, and who perhaps care about both Israelis and Palestinians: Is there a path to actively supporting both and working for human rights and dignity in light of the overwhelmingly depressing political prognosis? Despairing of an “ultimate solution,” are there interim measures we can work for or support?

To all of the above, there are answers, options, and paths for action that may not lay out “the solution,” but can be worthwhile, effective steps in the right direction. Together, they provide a realistic alternative vision and political program to that being pursued by Trump and Benjamin Netanyahu. None of these steps are easy, cost free, or guaranteed to “solve” the problem, but each can be perused without either demanding or ruling out a particular political solution in the future. The parties, and particularly Israel, will not easily agree to any of them, and they still require a detailed workplan to bring them about, but these are interim goals, or campaigns we can work on in the meanwhile:

Ending the siege of Gaza and allowing people and goods to move free in and out of the Strip must be a top priority in the interim. The siege was initially undertaken as a political move to punish Gazans for their support of Hamas and to sever the West Bank from Gaza with the aim of fragmenting Palestinians and thus preventing Palestinian statehood. It cannot be a permanent feature of life. With due consideration for the desire to prevent weapons from entering Gaza (a failed exercise in any case), draconian controls over the civilian life and economy of two million people in the Gaza Strip cannot be a permanent state of affairs. It must end. Whatever puny efforts some in Gaza may undertake to militarily resist are strategically insignificant, even though Israel will not be able to completely deter them by force alone But given the relative quiet (from Gaza’s side), the siege must be lifted. This is something all parties must work on now. Concerted diplomatic pressure, as well as courageous nonviolent action to break the siege, is called for and must be initiated immediately.
Abandoning armed resistance by Palestinians is another top priority. Armed struggle is never an end unto itself. It is only a means for achieving political ends, which seem to be elusive now. However deeply oppressed and however justifiably provoked Palestinians are, armed resistance cannot help them in their present situation. Not a single political or national goal can be advanced by acts of desperation, especially if aimed at civilian “softer targets,” and such acts are bound to be counterproductive. They lead to massive punishing countermeasures, which both the Israeli public and the outside world view as “justified.” They also bolster right-wing extremism and place Palestinian advocates on the defensive. The issue is not the legitimacy of armed resistance, but its efficacy. Palestinians will do well (for themselves) to suspend any such actions. The emotional rush or satisfaction derived from “doing something” or “making the other side suffer” is not a rational reason to do things that are counterproductive to our cause. By the same token, continued Israeli reliance on the army and deadly force has also proven ineffective and “deterrence” has not worked. Israelis must seriously rethink the efficacy of reliance on military power as well.
Struggling against collective punishment and administrative measures. Many of the forms of control used by Israel against Palestinians punish whole segments of the community, in a supposed attempt to fashion the behavior of the entire community by punishing its members and rendering them all subject to Israel’s arbitrary acts. These measures include detention without trial, house demolitions, collective punishments, restrictions on travel, and other measures undertaken at the sole discretion of the occupying forces. Such actions contravene international law, common morality, and basic human decency. Some would say they also contravene the character and morality of Judaism and of the nature of society Jews wish to have for Israel. Such measures may find some justification in times of crisis but cannot serve as a permanent feature of any people’s existence. If Israel wishes to “manage” this population, it must realize that neither occupation, nor apartheid have permanency. Just as slavery and colonialism eventually had to be abolished, so will this injustice.

If Israel is going to insist, in the foreseeable future, on being in charge of Palestinian lives and affairs and on denying them genuine statehood, it must find a way to provide a minimum of normalcy by lifting the measures that subjugate them to arbitrary actions. It must give them a role in deciding their own affairs, in the West Bank (including Area C, which is currently outside the control of the Palestinian Authority) and Gaza, as well as in Israel. A large number of measures exist that are totally within Israel’s control, and can be undertaken unilaterally, with minimal impact on the broader security situation. Currently, existing military orders give Israeli officials full control over all aspects of life, including digging wells, building and land use in Areas C and B, and travel to and from the Palestinian areas. Israel can easily cede such controls without endangering its security. Such actions do not require Palestinian “agreement,” and they do not determine a particular ultimate political solution. Israel should seriously consider implementing them unilaterally rather than keeping them as “potential bargaining chips” in negotiations over a solution that does not appear on the horizon for the foreseeable future. These include:

Ending all administrative detentions and releasing administrative detainees.
Removing all restrictions on normal movement of goods and services between the West Bank and Israel, as well as between Gaza and the West Bank. Specific individuals may still be prevented from movement into Israel by court decree, upon good cause, but the blanket prohibitions on the entire population must be lifted, especially with respect to access to East Jerusalem. This has actually been tried a number of times, with good results. The continued restrictions have a political, not security, basis. They are an expression of power and control, not a need for security.
Removing all barriers, checkpoints, and obstructions within the West Bank, which would allow freedom of movement for goods and persons. These restrictions currently hamper economic development, create daily humiliations and frustration, and their contribution to Israel’s security is negligible, while their impact on the lives of Palestinians and their contribution to increasing hatred and enmity is enormous.
Granting Palestinians permission to build in Area C of the West Bank and returning zoning and planning authority in the area to them. Israeli exercise of its powers in this area is an expression of desire for control and domination, rather than need.
Creating new legislative and constitutional guarantees for equality in Israel itself, and making the promise of equality in Israel’s Declaration of Independence operational and binding.
Making all residents of the West Bank, including Jewish settlers, subject to the same laws, administered by civilian, not military courts. This measure does not need Palestinian approval. Those Jewish settlers who wish to continue living illegally in the West Bank, for whatever reason, must be required, as a minimum, to accept legal equality with Palestinians in that area. This could take the form of extending certain Israeli privileges to West Bank Palestinians or alleviating certain burdens from the Arab population that would be intolerable to Jewish settlers. Either way, it would promote equality without prejudicing Israeli security or the eventual political outcome. Israeli refusal to carry out this suggestion and the suggestion in (4) above lays bare the true nature and purposes of the occupation regime, which perhaps will not change till these goals are defeated.

It may be argued that all these suggestions would only beautify and prolong the occupation rather than remove it. My answer is that each and every one of these suggestions can be pursued without abandoning one’s own political beliefs or one’s own struggle for the ultimate political outcome. Yet they address the current intolerable situation that has been oppressing the local population for half a century while pretending to be temporary. The interminable debate about the “ultimate solution” should give way to concerted action on specific interim measures that all people of goodwill can agree upon.

Jonathan Kuttab is a leading human rights lawyer and a partner with Kuttab, Khoury, and Hanna Law Firm in East Jerusalem. The views expressed in this article are his own.

Photo by Issam Rimawi/Anadolu Agency via Getty Images

Israel’s Arguments for the Legality of Settlements under International Law

Jonathan Kuttab, international human rights lawyer — Tue, 26 Nov 2019 05:44:46 +0000

NOVEMBER 21, 2019

Jonathan Kuttab

original article Arab Center Washington DC

The illegality of Israel’s civilian settlements in territories it occupied in 1967 is one of the few clearly settled issues in international law. The Geneva Conventions provisions on this issue are clear and explicit: civilian settlement activities are considered grievous breaches and war crimes. Furthermore, the issue was litigated and decided by the International Court of Justice in a rare, almost unanimous ruling of 15 judges in the case of Israel’s Separation Wall in 2004. The lone dissenting judge in that case wrote that even he agrees with the majority on the issue of the applicability of the Geneva Conventions.

So how does Israel justify such a clearly blatant violation? The answer lies in a number of arguments offered over the years, both in courts (primarily the Israeli High Court) and in legal publications and the press, as well as statements of Israeli officials. Following is a list of such arguments with a brief response, in bold italics, to each:

1. Israel voluntarily applies the “humanitarian” but not the “political” provisions of the Geneva Conventions. Settlements are political issues and therefore are not to be governed by the Geneva Conventions.

No distinction like this has ever been known in international law, and Israel has not even tried to specify which provisions of the Geneva Conventions it considers to be “humanitarian.”

1. While Israel signed the Geneva Conventions, its Knesset did not ratify them; therefore, they never became part of Israeli domestic law. The Israeli courts are therefore not free to apply them as Treaty law but must only apply the Hague Conventions, being part of traditional (conventional) international law, which is automatically part of Israel’s law—but not Treaty law, which needs to be specifically ratified and incorporated into Israeli law by the Knesset.

This argument explains how the Israeli High Court, as a domestic court, avoided the obligation to apply the Geneva Conventions, but it does not address Israel’s international obligation to follow the Geneva Conventions, which it signed.

1. The movement of civilians into occupied territories, which is prohibited by the Geneva Conventions, only applies to forced marches and the imposed movement of civilians. It has no application where the movement of civilian Israeli settlers is a voluntary action by the settlers themselves.

The authoritative Pictet Commentary on the Geneva Convention, issued by the International Committee of the Red Cross, addresses this very argument and specifies that any movement of civilians into or out of the occupied territories is illegal. It does not accept this interpretation.

1. The settlements are needed for security and are therefore legitimate, even though they are civilian complexes. As a “belligerent occupier,” the Israeli army has every right to set up security structures; Israeli settlements were initially started inside army compounds as part of the occupation and only later were turned over to civilian rule. Given Israel’s democratic and egalitarian nature, civilian settlements—and not just a professional full-time army—have always played a central role in the defense of the country. This argument was used by the Israeli High Court in its Elon Moreh decision, which did, in fact, hold that the status of the occupied territories is “belligerent occupation.” However, the court said it needs to examine in each case whether the security or ideological consideration were predominant in taking private Arab land for settlements. Where security considerations were predominant, or where the land in question was public and not private, the High Court will not intervene.

Whatever the merits of that argument under Israeli domestic law, it has no weight whatsoever in international law, which categorically prohibits the movement of civilians into the occupied territories. It is disconcerting that US Secretary of State Mike Pompeo says that only Israeli courts can judge this issue of the illegality of settlements.

1. The Geneva Conventions only apply to territories captured in a war of aggression, but not to territories that come under the control of a country in a defensive war where others are the aggressors.

The Geneva Conventions and international law do not make such a distinction. Apart from the difficulty of establishing which wars are “aggressive” and which are “defensive,” particularly when the army that starts hostilities claims it is acting in a “preemptively defensive” fashion, the Geneva Conventions were concerned with protecting civilians who fall under the rule of another army. They also addressed the disruptive effect on the international order of any acquisition of territories after a war, where moving civilian populations into or out of occupied territories would be a complicating factor.

1. The Geneva Conventions only apply to territories taken from a recognized sovereign. Egypt was not, nor claimed to be, a sovereign in Gaza, and Jordan’s claim to sovereignty is weak and was only recognized by England and Pakistan. Therefore, there was no sovereign whose property and population comes under the purview of the Geneva Conventions.

This argument is very problematic. It does not address the question of the Golan Heights, which was clearly Syrian sovereign territory. In addition, Jordan’s claim over the West Bank was generally accepted internationally (as much as Israel’s claim to West Jerusalem). More importantly, the thrust of the Geneva Conventions was not to settle historic or national claims between countries but to provide protection for civilians and to prevent demographic changes from occurring as a result of armed conflict. The entire structure of the international order would be in great jeopardy if the 190+ countries of the world were to resort to war to acquire land, which they claim on a historic or ethnic basis, and then move their civilian populations into the lands they occupy by force.

1. In the absence of a legitimate sovereign, the Jewish people are the “missing reversioners” and the true sovereign in the area in light of their genuine sovereignty over 2,000 years ago. That claim is greater than the claim of any other country, and in the absence of other legitimate claims, Israel itself is the sovereign and cannot be an “occupier” of what is its historic right.

This argument was first offered by Yehuda Blum, Israel’s representative at the United Nations, and has been quoted repeatedly by Israeli writers. It has never been used or accepted by any international authorities and is often referred to as “novel.” Historically, the whole of Palestine lying at the intersection of three continents has seen many invaders and empires set up rule over it, and modern countries that claim descent from these historic invaders would include Syria, Iraq, Iran, Saudi Arabia, Egypt, Turkey, Greece, and Italy.

1. If the settlements stay long enough, gradually the world will accept them and they will become part of the reality which must be dealt with. Even Palestinians have accepted, and will accept, the settlements, or at least the settlement blocs, and they will negotiate about the rest.

This seems to be the most powerful argument, and it is one that Israeli Prime Minister Benjamin Netanyahu has been using frequently. He perhaps thinks that if international law prohibits this, then he can change international law. At its heart, this argument of establishing facts on the ground or “might makes right” is a thorough repudiation of international law and an invitation to international chaos and lawlessness. That is the danger in President Donald Trump’s positions, whether on the Golan, Jerusalem, or the issue of settlements.

Jonathan Kuttab is a Human Rights Lawyer and a Non-resident Fellow at Arab Center Washington DC