23 July 2013
The responsibility of third states concerning the Israeli occupation of the Palestinian Territories
On Thursday evening 13 June 2013, the third SHARES Debate entitled The Israeli occupation of the Palestinian Territories: is there a responsibility for the Netherlands? was held in Amsterdam. This blog post will highlight parts of the debate.
The continuing Israeli occupation of the West Bank, the Gaza Strip and East-Jerusalem, and the expansion of settlements raise the question as to what the responsibility is of other states. Due to the asymmetry of this conflict, it would appear that it can only be resolved through the intervention of third parties.
This SHARES debate addressed the role of third states in general, and the Netherlands in particular. The focus on the Netherlands was justified not only because the Netherlands attaches great importance to the promotion of the international rule of law, but also because it maintains close relations with both Israel and the Palestinian Authority.
In his individual talk, professor Dugard focused primarily on the international legal issues, while professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories.
Third state obligations and international law
Professor Dugard discussed the obligations of third states (placing emphasis on the Netherlands) in relation to the Israeli occupation of the Palestinian Territories, from the perspective of international law.
Dugard argued that in order for the third state obligations under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ASR) to be applicable in the present case, three elements need to be fulfilled. First, there must be conduct in breach of an international obligation; second, this conduct needs to be attributable to Israel; and third, in the context of article 41 ASR, the act must also be an international wrong of a serious nature (a violation of a norm of jus cogens). In Dugard’s view, the law and the facts are clear because the construction of settlements, the transfer of settlers, and the construction of the wall are all considered illegal under international law. These acts are international wrongs of a serious nature and attributable to Israel. The de facto annexation of the Occupied Territories, the denial of the Palestinian people’s right to self-determination and the existence of segregation, amounting to an ‘apartheid’ system, are considered violations of peremptory norms.
This situation triggers obligations of third states under international law deriving in part from international humanitarian law. Article 1 of the 4th Geneva Convention on the treatment of civilians in armed conflict, entailing the obligation for states parties to the Geneva Convention to respect and ensure respect for the present Convention, is relevant in the present case. In addition, article 41 of the ASR is of importance, since it obliges states to cooperate to bring an end to an unlawful situation amounting to a violation of jus cogens, not to recognise an unlawful situation, and not to render aid or assistance in maintaining an unlawful situation.
Dugard noted that although states have what he called a ‘margin of appreciation’ regarding their obligations, it has in practice led to states doing nothing. Although the United Nations Security Council, the United Nations General Assembly, the European Union (EU) and the United States (US) have condemned (meaning they do not recognise the lawfulness of) the Israeli settlement policy, to this date nothing has actually been done.
The illegality of what Dugard called the ‘settlement enterprise’ is confirmed in the 4th Geneva Convention, the Rome Statute, by the ICJ and the United Nations Human Rights Council. An independent fact-finding mission of the UN Human Rights Council has put the illegality of the wall and the Israeli settlements in the Occupied Territories as follows:
The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law as applicable in the Occupied Palestinian Territory, as recognized notably by the International Court of Justice in its advisory opinion of 9 July 2004.
Furthermore, in its Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, the fact-finding mission recommended that states should not recognise an unlawful situation resulting from Israel’s violations of international law in the Occupied Palestinian Territories.
Prohibition of aid or assistance
With regard to article 16 ASR on aid or assistance in the commission of an internationally wrongful act, an aspect concerning the obligations of third states under international law, Dugard stressed that there is knowledge of the illegal circumstances and of what happens on the ground. Preserving an illegal situation can be seen as aiding or assisting in maintaining an unlawful situation. This was also recognised in paragraph 163 (3)(D) of the ICJ’s Advisory Opinion on the wall.
Dugard’s remarks on aid or assistance are in line with what Professor James Crawford has said earlier on obligations of European governments in general, and the UK in particular, concerning support for and involvement in settlement activity of Israel in the West Bank. In his opinion entitled Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, Crawford concluded that involvement of a third state in Israel’s settlement activity, where characterised as recognition or aid or assistance, is incompatible with international law. He however stressed that ‘it is doubtful whether States have any positive obligations to ensure Israel’s compliance with international humanitarian law. The ILC Articles require only collective action.’
What conduct should states adopt?
Dugard also addressed the question of what conduct is required from third states in order not to be held responsible for wrongful conduct under international law.
On the issue of mandatory labelling of products that were produced in or come from settlements, Dugard went one step further and also said that states are obliged under international law to stop purchasing and selling these products, meaning that all such products must be banned from shops.
Currently a number of campaigns including an academic and cultural boycott of Israel (see e.g. here and here are taking place. Consumer boycott campaigns seeking to block the import of products that come from settlements might find Dugard’s argument helpful for their cause. It could be interesting to see what would happen if a case was brought before a domestic court in the Netherlands (or elsewhere) against a supermarket chain for aiding and abetting an unlawful situation, because of selling products coming from Israeli settlements.
Dugard further noted that, because of the illegality of the construction of settlements and the wall, states are entitled to take countermeasures under international law so as to put an end to these illegal acts. Termination of aviation or trade agreements are examples of countermeasures, but all such measures must be proportionate and may not involve the use of force. Brinkhorst noted that suspending the EU-Israel Association Agreement would be a possibility (article 2 of the agreement on human rights is relevant here). Twenty-three members of the European Parliament have indeed called for the suspension of the EU-Israel Association Agreement on 11 March 2013 in a letter to Catherine Ashton, the High Representative of the EU for Foreign Affairs and Security Policy.
Political issues and the vanishing two-state solution
Professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories. He observed that this is an asymmetric conflict with two parties who are not equal in terms of size, power and resources.
Brinkhorst argued that the US is not well-suited to provide a solution to the conflict given the fundamental divide in the US society on this issue. Other states should exercise their responsibility.
While many states, including the Netherlands and the EU, support the two-state solution, this solution becomes increasingly impossible due to the on-going expansion of the settlement policy. UN Secretary-General Ban Ki-moon recently called current plans of continued expansion of Israeli settlements ‘unhelpful’ and undermining the ‘progress towards the two-state solution’, and called on ‘Israel to heed the calls of the international community to freeze settlement activity and abide by its commitments under international law.’
Brinkhorst noted that the Netherlands should, first, stop intensifying the bilateral relations until there is some change concerning the settlements, and second, stop blocking a European policy on the labelling of products. He also concluded that Europe has a special responsibility for the vanishing of the two-state solution.
Both presentations supported the view that all states have responsibilities with regard to the conflict. All states might be required by international law, as suggested by Dugard, to make sure that products must not only be labelled but also banned in their territories, which would amount to a de facto boycott of products coming from the Occupied Territories.
The question also arises as to whether the argument of Brinkhorst, that the Netherlands should stop intensifying the bilateral relations with Israel until there is some change concerning the settlements, can be applied to all states.
This debate emphasised (through the obligation not to aid or assist) that third states do have an obligation to do something. More can and must be done by states in order for them to live up to their obligations under international law, to ‘wake up’ Israel, and bring an illegal situation to an end.