RUSSELL TRIBUNAL: NEW YORK SESSION
Report by John Dugard
The New York Session was devoted to an examination of the failure of the United Nations and the United States to properly consider, confront and oppose serious breaches of international law by Israel in respect of Palestine and to a consideration of the question whether this failure constitutes an internationally wrongful act involving international responsibility.
The Russell Tribunal heard over twenty expert witnesses on this subject who testified to various aspects and features of UN and the US actions and inactions in respect of Israel/ Palestine. The UN, US and Israel were all invited to give evidence before the Russell Tribunal but none of them replied to this invitation. In these circumstances they cannot be heard to complain that they were denied an opportunity to be heard.
As at previous sessions, the Tribunal considered Israel’s violations of international law. The denial of self-determination, the failure to accommodate refugees, the construction of settlements and the Wall, and violations of both human rights and international humanitarian law featured prominently in the evidence of witnesses. All this evidence was, however, designed to provide a basis for the charge that the United States and the United Nations were complicit in Israel’s violations of international law, either by their actions or their inactions.
THE UNITED STATES
Since it gave premature recognition to the state of Israel in 1948, the United States has given material and political support to Israel. Materially, it has supported Israel by contributing substantially to the budget of Israel, particularly in respect of military hardware. It has equipped Israel with the latest weapons and has turned a blind eye to Israel’s nuclear program. Politically, it has
given support to Israel by obstructing the peace process and preventing the United Nations from taking action to enforce international law.
The Palestinian Authority, from the time of Arafat, has taken the view that the key to a political settlement involving a two state solution is in the hands of the United States. It has urged and pleaded with the United States to bring Israel to the negotiating table and to persuade it to accept a Palestinian state within the 1967 borders, with East Jerusalem as its capital and with the return of at least some refugees of 1948 and 1967. Although the United States took steps in this direction under President Clinton it has failed to bring Israel to the negotiating table since then. Although the United States has the political power to do this it has failed to do so largely because of the restraints imposed by the Israeli lobby on both Congress and the President. To aggravate matters the United States has used , or rather abused, the Quartet, of which it is the dominant member, not to promote the peace process despite being mandated to do so by the Security Council.
The United States has, moreover, prevented the United Nations from taking action to enforce compliance with international law on the part of Israel. It has done this mainly by means of its veto power. The United States has cast 43 vetoes since 1972 to protect Israel from condemnations of its violations of fundamental principles of international law. The following are examples of this obstructive conduct of the United States:
Settlements: While the United States has declared that it considers the transfer of Jewish settlers into the OPT to be contrary to international law, and has on occasion supported resolutions condemning the construction of settlements, more recently it has vetoed such resolutions. (The latest such veto was cast in February 2011.) The construction of settlements makes hopes for a Palestinian state illusory, and allows Israel to build a colonial empire and to practise apartheid in the OPT. The PA has repeatedly stated that it will not resume talks with Israel until the construction of settlements ceases. The failure of the United States to support the PA on this matter and its obstructive attitude provides evidence of an acceptance of the above consequences of the settlement enterprise by the United States. To aggravate matters the United States gives indirect material support to the construction of settlements by giving financial aid to Israel without taking steps to ensure that such aids is not used in the construction of settlements or the infrastructure of settlements.
The Wall : The Wall that Israel is building in part within Palestinian territory was initially claimed by Israel to be a security wall. However, in recent times it has become clear that it is designed to serve as the future border between Israel and a Palestinian state. In other words, it is an unlawful annexation and seizure of Palestinian territory. In 2004 the International Court of Justice held that the construction of the Wall violates international law. The United States, however, has never, accepted the illegality of this measure even though it has been condemned by the United Nations and the European Union. The obvious UN body to take action to compel Israel to cease construction of the Wall and to dismantle the portions that have already been built is the Quartet, which has been mandated by the Security Council to promote peace in the region. However, under compulsion from the United States, the Quartet has never acknowledged the illegality of the Wall or the ICJ Opinion and has done noting to oppose it. As a result the Advisory Opinion has been killed and the illegality of the Wall is off the international agenda.
Gaza and International Humanitarian Law: It cannot be denied that Israel committed serious violations of international humanitarian law (IHL) in the course of its Operation Cast Lead of 2008-2009. In killing civilians and destroying private homes it failed to distinguish between combatants and civilians and between military and civilian targets. Several credible inter-governmental and non-governmental reports testify to this. The United States ensured that Israel’s actions were not condemned by the Security Council at the time. Since then it has used its influence to prevent the International Criminal Court from prosecuting Israeli political and military leaders.
Self-Determination and Statehood: The United States was responsible for blocking Palestine ‘s admission to the United Nations in 2011 and did its best to
prevent the 2012 resolution acknowledging the statehood of Palestine from being adopted.
The assessment of the conduct of the United States in terms of legal responsibility is complicated.
In the first place, it is clear that the United States is in breach of the Geneva Conventions of 1949 which in Article 1 requires all state parties “ to ensure respect for the present Convention(s) in all circumstances”. Customary international law confirms this obligation (Rule 139 of ICRC study on customary international law) and goes further in declaring that :
“States may not encourage violations of IHL by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of IHL” (Rule 144 of ICRC study)..
The US has not only failed to ensure that Israel respects IHL but it has exerted little or no influence on Israel to stop key violations of IHL. On the contrary it has on occasion encouraged Israel to violate IHL. The US has acquiesced in, and indirectly encouraged , the construction of both settlements and the Wall. In the case of Israel’s assaults on Gaza its support has been more direct and could be said to constitute encouragement. Israeli political and military leaders visit the US with impunity. Courts of the US have refused to entertain actions against such persons. Here the US is in violation of Articles 146 and 147 of the Fourth Geneva Convention which obliges states to prosecute in their domestic courts persons that commit grave breaches of this Convention. Israel’s actions in the course of Operation Cast Lead that have been categorized as war crimes or crimes against humanity clearly fall under these provisions.
International responsibility is incurred by a state that aids or assists another state in the commission of internationally wrongful acts (Article 16 of the International Law Commission Draft Articles on State responsibility). The US undoubtedly assists Israel in the commission of internationally wrongful acts by providing military , material and political support to Israel.
A member state of the United Nations is required to act in good faith in the Organization. Article 2(2) of the UN Charter obliges member states to fulfill in good faith the obligations assumed by them under the UN Charter. This obligation applies a fortiori to a permanent member of the United Nations which is entrusted with the veto. The conduct of the US in the UN provides evidence of bad faith on the part of the US. It has vetoed resolutions condemning Israel’s violations of international law and grossly abused its membership of the Quartet by dissuading the Quartet from taking meaningful action to promote the peace process.
THE UNITED NATIONS
The history of the UN response to repeated and consistent violations of international law by Israel is a history of failure and complicity. In 1948 the UN admitted Israel as a member state of the UN despite the fact that its creation violated the principle of self-determination in respect of the mandate territory of Palestine. Years later, in 1967, the UN called upon states not to recognize Rhodesia when it sought to secede and establish an independent state when it denied self –determination to its black majority. The creation of the state of Israel at the expense of the right of self-determination of the Palestinians in similar circumstances placed no bar on the admission of Israel to the UN.
Since 1948 the UN has allowed Israel to violate international law with impunity.
It has failed to secure the return of Palestinian refugees displaced by the wars of 1948 or 1967 and it has failed to achieve a humane solution to this problem.
It has failed to secure the return of land occupied by Israel in 1967 and it has shamefully acquiesced in Israel’s establishment of a colonial empire in the West Bank and East Jerusalem at a time when colonialism is viewed as unlawful. It has, in the process, failed to take firm action to halt Israel’s construction of settlements.
It has failed to ensure compliance with the 2004 Advisory Opinion of the International Court of Justice finding that the construction of the Wall in Palestinian Territory is illegal and that it should be dismantled. Although this Opinion is not binding upon member states it is binding on the United Nations as it has been accepted by the General Assembly. Here the failure of the Secretary General to concern himself with the enforcement of the Opinion is particularly glaring. As the representative of the UN in the Quartet he has failed to ensure that the Quartet concerns itself with this matter, The SG has allowed himself to become an agent of the US in this respect.
The UN has failed to ensure compliance with the rules of IHL. It failed to take action to halt Operation Cast Lead and it has subsequently failed to ensure that those responsible for the commission of war crimes and crimes against humanity in the course of this Operation are brought before the ICC, despite recommendations that this be done by a number of fact-finding missions, including that of the Human Rights Council. Whereas Darfur and Libya have been referred to the ICC by the Security Council no such action has been taken by the Security Council in respect of Palestine. The Organization has acquiesced in the determination of the US to shield Israel. The complicity of the `Secretary-General in this regard is further demonstrated by his appointment of a Commission of Enquiry with members friendly to Israel to undermine the findings of the Human Rights Council Commission of Enquiry into Israel’s attack on the Mavi Marmara which sought to break the blockade of Gaza with humanitarian supplies in 2010.
The UN has failed to promote the self-determination of the Palestinian people. The mandate for Palestine of 1920 imposed a “ sacred trust’ of civilization on the League of Nations to lead Palestine to independence. This ”sacred trust” was inherited by the United Nations. For over fifty years the UN has failed to give effect to this “sacred trust”. It has acquiesced in the secession of Israel from the mandated territory but it has failed to recognize the full statehood of Palestine. In November 2012 it accorded non-member observer status to Palestine but, under pressure from the US, it has refused to admit Palestine to UN membership.
International organizations, like states, incur responsibility for internationally wrongful acts. (Article 3 of the International Law Commission(ILC)’s Draft Articles on Responsibility of International Organizations). Like states they are also under an obligation to make full reparation for injury caused by wrongful acts. In practice it is difficult to contemplate any claim for reparation succeeding against the United Nations. The fact that the UN has committed a series of internationally wrongful acts against Palestine does, however, constitute a serious indictment of its policies and practices, particularly those of the Security Council and the Secretary -General. The UN has clearly lost the moral high ground in respect of Palestine. Its failure to treat Palestine in a fair and just manner stands as a sharp rebuke to the UN.
IMPORTANT EVENTS SUBSEQUENT TO THE NEW YORK SESSION
A number of events have occurred subsequent to the New York session which confirm Israel’s violations of international law, the support of the United States for these violations, and the failure of the United Nations to respond meaningfully to Israel’s violations of international law.
Israel’s attack on Gaza from 14 to 21 November in Operation Pillar of Defence. Although an Israeli ground offensive was avoided Israel caused considerable loss of life (158 Palestinians were killed compared with six Israelis) and damage to property. War crimes were committed in this offensive. In one attack twelve persons were killed – two men, six women and four children. The Security Council failed to take any decision on this offensive. Although the US government played an important role in securing a ceasefire the US Congress gave support and encouragement to Israel.
On 29 November 2012 Palestine was accorded the status of “non- member observer status” in a resolution of the General Assembly adopted by 138 votes to 9 and 41 abstentions. This constitutes recognition of the statehood of Palestine but falls short of UN membership. The United States joined Israel in voting against the resolution.
In response to the UN decision , Israel announced that it had approved plans for the construction of 3,000 settlement units in the controversial E1 corridor between East Jerusalem and the settlement of Maale Adumim., which will destroy the possibility of a contiguous Palestinian state. While the EU has taken a strong position against this decision the United States has failed to do so. The Security Council has not adopted any resolution on this subject.
In January 2013 the Independent Fact-Finding Mission to Investigate the Implications of Israeli Settlements established by the Human Rights Council concluded that the establishments of settlements in the West Bank and East Jerusalem had produced a dual legal system of segregation in which settlers enjoyed superior rights to Palestinians, and which invaded the human rights of Palestinians in social, political and cultural areas. Although the Mission did not use the word apartheid to describe the regime there can be no doubt that the system of unequal segregation it described is a form of apartheid. The Security Council has failed to respond to this important report.