by Peter A. Belmont / 2017-10-26
© 2017 Peter Belmont
NOTE: Phil Weiss has a very much fuller and more informative essay on this topic.
One is never too hopeful when proposals to deal with Israel/Palestine are put forward. But today I can report a proposal which at least presents a plan for action by the UNGA which could be adopted in spite of the usual opposition of the USA. In this “post” I recite the proposal and give my reasons for thinking it worth thinking about.
Most people regard the so-called two-state solution for Israel and Palestine a “dead letter” after 50 years of Israeli occupation of the West Bank (including East Jerusalem) and Gaza, to say nothing of near 70 years of Israeli occupation of the larger part of Palestine that it seized in the war of 1948.
International Law (I/L) sees the matter differently. I/L sees many Israeli practices (as an occupying power) as illegal and in particular sees Israel’s settling of about 600,000 (or 10% of) Israel’s citizens onto usurped land within the occupied Palestinian territory (oPt) as illegal. And not only illegal (violations of law or agreements) but as war crimes.
If the occupation is illegal, the nations should—in principle—be able to put pressure on Israel to end the occupation. If they did so, the Palestinians might, at long last, be able to create a state in Gaza and the West Bank. Voilą! A two-state solution!
However, no matter how well intentioned, I/L itself seems to have become a “dead letter” after all or most nations have for 50 years ignored their duties (under the Fourth Geneva Convention, for example), duties to ensure that I/L be respected by Israel.
Well, today (October 26, 2017), suggestions that might re-awaken the Member States of the UN will have been presented to the UNGA by the Special Rapporteur for Palestine, Prof. S. Michael Lynk.
Prof. Lynk’s suggestions come at the end of a report which begins with a long legal analysis from which he concludes that Israel’s occupation is illegal as a matter of law and should be ended as soon as practicable.
What’s good about his suggestions, it seems to me, is that he proposes a number of “baby steps” that the UNGA might take, each a step in the right direction, but none so dire as to result in (for example) a USA withdrawal from the UN, and none so dire as to result in bad consequences for the nations voting for the items in the recommendation. Or so I hope.
And please note that by appealing to the UNGA, Prof, Lynk creates a plan for action that gets around the USA’s perpetual veto in the UNSC of resolutions critical of Israel.
In other words, Prof. Lynk may have come up with a powerful reason for the nations to act together with a program of minimal steps which they might take while getting up the nerve and determination to take really effective steps—sanctions against Israel to compel Israel to comply with I/L. Such sanctions, one supposes, could result in bringing the occupation to an end.
In his report he says (according to a paper summary given out at his talk yesterday at Columbia Law School) :
Lynk’s Legal Analysis
1. For each of 4 reasons, the Israeli occupation has become
a. Permanent occupation, or occupation of indefinite duration, is illegal; but Israel’s occupation is at least indefinite and seems perpetual.
b. No part of any occupied territory may be annexed; but Israel has (claimed to have) annexed East Jerusalem.
c. Occupier must act in best interests of the people of the O/T; but in so very many ways Israel has not done so.
d. Occupier must administer O/T in “good faith” which means observing the applicable law and also UNSC and UNGA and ICJ resolutions and opinions; but Israel is in violation of numerous UNSC and UNGA and ICJ resolutions and opinions.
2. This notion of an occupation (or trusteeship) becoming illegal is backed up by the 1971 ICJ decision on Namibia which declared the South African mandate for South-West Africa (which became Namibia) illegal.
And, please note, South Africa eventually left Namibia!
3. If an occupation becomes illegal, the legal obligations of all countries change. At that point the obligations are as follows:
a. The occupier must (in addition to fulfilling all the normal obligations of occupation) end the occupation ASAP.
b. All other states must use (?? their best efforts ??) to force/require the occupier to fulfil its obligations (see “3.a” next above) and must stop doing anything that aids the occupation.
a. Israel should end the occupation expeditiously.
b. UNGA should:
i. commission a study of the legality of the Israeli occupations;
ii. consider the advantages of seeking an advisory opinion from the ICJ on the question of that legality/illegality;
iii. consider commissioning a legal study on ways and means that UN Member States can fulfil their obligations and duties to ensure respect for international law, including the duty of non-recognition (??), the duty to bring an end to a wrongful situation, and the duty to investigate and prosecute grave breaches of the Geneva Convention; and/or
iv. consider the adoption of a Uniting For Peace Resolution (i.e., the UNGA does what the UNSC will not do) in the event that there is a determination that Israel’s role as occupier is no longer lawful.
 Formally, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
 This UNGA resolution was passed, USA voting in favor, to overcome the veto in UNSC by USSR