Global Justice in the 21st Century

This is a press release in my role as UN Special Rapporteur of the Human Rights Council for the Palestinian Territories occupied since 1967 on the annual international day of solidarity with the Palestinian people, which is observed on November 29th.

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GENEVA – The Special Rapporteur Richard Falk urged the United Nations and the international community to draft a new protocol of international humanitarian law to address the situation of prolonged occupation and refugee status imposed upon the Palestinian people for over 43 years of Israeli occupation.

“The Palestinian experience suggests the need for a new protocol of international humanitarian law,” he said in a statement issued Monday to mark the International Day of Solidarity with the Palestinian People. Mr. Falk stressed the need to impose “some outer time limit after which further occupation becomes a distinct violation of international law, and if not promptly corrected, constitutes a new type of crime against humanity.”

For the independent expert designated by the UN Human Rights Council to monitor the situation of human rights in Palestinian territories occupied since 1967, “the UN and the international community as a whole will be judged in the future by whether effective action is now taken to end the humanitarian catastrophe that has befallen the Palestinian people.”

“In this respect,” Mr. Falk warned, “the UN, the governments and the peoples of the world will be all be judged complicit to the extent that this persistent violation of fundamental human rights is endured without taking the necessary steps in a spirit of urgency and commitment to bring this abusive occupation to an end and achieve Palestinian self-determination in accordance with international law and the dictates of global justice.”

Regarding current efforts to reactivate a peace process between Israel and the Palestinian authorities, the UN Special Rapporteur reminded that “negotiation between the parties to the conflict needs to be guided by the implementation of several principles of international law if a settlement of the conflict is to achieve Palestinian self-determination.”

These principles, as set forth in General Assembly Resolution 48/158, 20 December 1993, include the following:

· withdrawal from Palestinian territory occupied since 1967, including Jerusalem;
· resolving the Palestinian refugee problem in accordance with General Assembly Resolution 181 and subsequent resolutions;
· dismantling settlements established during the occupation;
· fixing of secure and internationally recognized borders;
· guaranteeing free access to sacred sites and religious buildings throughout historic Palestine.

“A peace process that does not heed these guidelines, with appropriate degrees of flexible implementation,” Mr. Falk warned, “cannot realize either self-determination for the Palestinian people or peace with security and justice for both Palestinians and Israelis.”

(*): Check the Special Rapporteur’s Statement on International Day of Solidarity with the Palestinian People: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10566&LangID=E

ENDS

In 2008, the UN Human Rights Council designated Richard Falk (United States of America) as the fifth Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967. The mandate was originally established in 1993 by the UN Commission on Human Rights.

Learn more about the mandate and work of the Special Rapporteur: http://www2.ohchr.org/english/countries/ps/mandate/index.htm

OHCHR Country Page – Occupied Palestinian Territories: http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx

OHCHR Country Page – Israel: http://www.ohchr.org/EN/Countries/MENARegion/Pages/ILIndex.aspx

In its issue of 20 November 2010 The Economist quotes approvingly the following summary of conventional wisdom declared by Hilary Clinton, who spoke of an Israel/Palestine agreement that “reconciles the Palestinian goal of an independent and viable state, based on 1967 lines, with agreed swaps, and the Israeli goal of a Jewish state with secure and recognised borders that reflect subsequent developments and meet Israeli security demands.” (emphasis added) It turns out, not surprisingly, that these subsequent developments refer to the unlawful Israeli settlement blocs, and by extension, also to the wider settlement infrastructure of roads and trains, the separation wall, and the deliberate cleansing of East Jerusalem, bringing more and more Jews in, and pushing out as many Palestinians as possible. So these subsequent developments are fundamental encroachments on the Palestinian right of self-determination in the form of violations of international criminal law, and quite possibly, by reliance on crimes against humanity. And so this phrasing of subsequent developments is more than a sinister euphemism, it is an effort of hard power diplomacy to override law and morality. Beyond this, the Clinton formulation of reconciling a viable and independent Palestinian state with these subsequent developments represents an endorsement of a completely incoherent aspiration, as either Palestine will be neither viable nor independent or the subsequent developments will have to be reversed. When analyzed the Clinton formulation of conventional wisdom clearly exposes the two state consensus as resting upon a politics of delusion. It is time to acknowledge this, and not to be complicit in the bad faith approach that continues to inform both inter-governmental diplomacy and to be uncritically reported by mainstream media.

The politics of language raises delicate issues in the setting of assessing the Israel/Palestine conflict as the year 2010 draws to an end. A neutral and objective terminology associated with the abusive Israelis occupation of the West Bank, East Jerusalem, and Gaza seems consistent with the spirit of accommodation and eventual reconciliation, but it also clouds the mind, and obscures the daily ordeal of the Palestinians who are enduring multiple privations with no end in sight after more than 43 years of occupation, and some 62 years of dispossession. If it were possible to attach any hope to the possibility that a just outcome to inter-governmental negotiations could be forthcoming, then it might be best to avoid inflaming emotions by escalating the rhetoric of exposition. If, in contrast, the negotiations are far more likely to lead no where or entrap the Palestinian negotiating side, then it seems preferable to call attention to what seems to have taken place under the misleading rubric of temporary belligerent occupation, a presence that seeks and acquires no longevity.

In my opinion, there is an important issue of language that arises from the cumulative effects of Israeli severe and multiple violations of international humanitarian law, and related international human rights law and international criminal law. It becomes increasingly misleading to treat these violations as distinct behavioral instances disconnected from broader consequences that are either designed by intention, representing the motive for the violations, or the natural outcome of accumulating circumstances (so-called ‘facts on the ground.’). These concerns about language are accentuated because Israel is the stronger party in all diplomatic settings, and generally enjoys the unconditional support of the United States, because unlawful Israeli behavior that starts out as ‘facts’ is gradually and deliberately over time transformed into ‘conditions’ that are treated as essentially irreversible, which is true of several aspects of the occupation, including at a minimum ‘the settlement blocs’ and ‘the separation wall.’ To perceive the effects and implications of these unlawful patterns, and their attempted de facto ‘legalization’ requires stronger expository language to understand better the assault of Palestinian rights and prospects for meaningful self-determination. It is against this background that I believe the time has come to call ‘a spade a spade’ and use such terms as ‘annexation,’ ‘ethnic cleansing,’ ‘apartheid,’ ‘colonialist,’ ‘settler colonialism,’ and ‘criminality.’ Although admittedly emotive, and requiring a finding by a court of law to be legally conclusive, such robust language, in my view, more accurately describes the unsavory realities of the occupation at the present time than does the more neutral seeming language beloved by diplomats and welcomed by defenders of the established status quo. Of course, the limit language test in the relationship between Israel and Palestine is the infamous G-word, which I am not ready to apply as a moral, political, or legal term of art, but if the more ambiguous ‘genocidal’ is invoked to identify the tendencies implicit in this kind of prolonged and invasive occupation, I would not disagree.

The mainstream discourse is preoccupied with whether a deal can be struck, and worries not at all about its fairness or about the process that features a partisan mediator or about Palestinian representation issues (neither inclusive nor legitimate). It speculates that maybe it will be possible to strike a bargain because Israel regards Iran as an existential threat and the PA is weak and badly wishes to solidify its claims to lead some kind of Palestinian entity, and of course the U.S. Government is most eager of all because Obama needs some kind of foreign policy success and it would be a step toward reducing anti-Americanism in the region.

At the moment M. Abbas insists that unless the settlement freeze for the 90 day period is extended to East Jerusalem there will be no resumption of negotiations. Netanyahu is beset by settler militancy, but has been gifted such a bribe by the U.S. that it is hard to imagine that some sort of ambiguous freeze arrangement will be accepted. It still seems likely that U.S./Israeli leverage will revive a negotiating process beset with obstacles from a Palestinian perspective.

An almost condition of the negotiations is that whatever is agreed upon is final so far as Palestinian any future demands are concerned. This reinforces the importance of assessing the adequacy of the process and of Palestinian representation. It also shows how impossible it seems to be that anything will emerge that can be reconciled with even a minimal construction of Palestinian rights or expectations.

There are three severe shortcomings of the peace process as now constituted: (1) the excessive influence of the United States due to its dual role of unconditional ally of Israel and self-appointed ‘honest broker’ for the negotiations; (2) exclusion of any assessment of contested issues by reference to international law, including borders, Jerusalem, settlements, water, refugees- on each of these issues the Palestinian claims accord with international law, while the Israeli position does not, and thus exclusion of international law guidelines from the peace process impairs profoundly prospects for Palestnian self-determination achieved by way of inter-governmental negotiations. (3) exclusion of any consideration of the historical context that if considered would imprint a colonial character on the Zionist Project from at least the time of its endorsement in the London Balfour Declaration of 1917, and which over time has turned the Israeli governing process into one that combines ethnic cleansing, the crime of apartheid, and settler colonialism.

A further observation: the likely presentation of a land swap in exchange for the incorporation of settlement blocs into Israel is both deceptive and sets a trap with regard to Palestinian search for self-determination: what Israel seems prepared to offer is either desert wasteland in the Negev or Palestinian communities situated in the Galilee region of Israel or some combination. The latter would really achieve two Israeli goals in exchange for essentially nothing: somewhat legitimate Israeli sovereign claims with respect to the settlement blocs and at the same time contribute to the ethnic cleansing of Palestinians currently resident behind ‘the green line.’