Blog PostsOne State and Two State Advocacy are Both Counterproductive
By James Marc Leas at Aug 04, 2009 |
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The National Lawyers Guild instead calls for a campaign for
The Israeli government has long benefited from disunity among
Of course, either an actual Palestinian state or an actual unified country with equal rights for all would confer real benefits on Palestinians. But a legal organization or a peace movement calling for either a one-state solution or a two-state solution confers immediate benefits only on the Israeli government. This is because calling for either one of these final status outcomes has the legal organization or the peace movement legitimizing violation of fundamental principles of international law by the Israeli government and detracting from fundamental Palestinian rights.
Inherent in advocating for a one-state solution that includes all of
While a single democratic state, if it actually came into existence, could potentially redress certain Palestinian grievances, advocating for a single state confers no benefit on Palestinians and creates a problem for Palestinians that has no remedy. The advocacy de-legitimizes the fundamental prohibitions on acquisition of territory by force and inserting settlers on occupied territory and legitimizes the Israeli government's violation of international law to acquire that territory and insert those settlers. The advocacy also reinforces the idea that international law has exceptions for
Similarly, inherent in most calls for the two-state solution is the legitimation of Israeli discrimination against its Palestinian citizens in the "Jewish state." Also inherent in most calls for the two state solution is legitimation of loss of the right to return for most Palestinian refugees. Also inherent in most calls for the two state solution is legitimation of Israeli acquisition by force of illegal settlement blocks on occupied territories. Also inherent is the legitimation of the acquisition of territory by force, destruction of over 500 Palestinian villages, ethnic cleansing, and building of settlements on Palestinian lands starting in 1947-48 by forces that became the Israeli government.
To the extent that the Israeli government enjoys legitimacy for all these illegal actions provided by advocates for one state and two state solutions, the Israeli government has that much less reason to make either deal with the Palestinians.
Avoiding these problems, the National Lawyers Guild adopted a resolution[1] to advocate for and build a movement based on fundamental principles of international law. The underlying principles enjoy wide support and avoid legitimizing any of Israel's violations of international law. Building campaigns based on one or more of these principles also provide a way to overcome disunity, to include large numbers of people, and to increase pressure for change.
End Occupation, Equal Rights, Return of Refugees, End US aid
The NLG resolution calls for:
(a) a complete Israeli withdrawal of settlers and soldiers from the territories acquired by force in 1967, including that Israel dismantle its walls, checkpoints, roadblocks, and other methods of control over Palestinians without requiring the Palestinians to agree to a "final status" of the conflict; (b) equal rights for all within Israel's pre-1967 boundaries; (c) full implementation of the right of refugees and their descendants to return to their homes and villages and to receive just compensation, in accordance with international law and UN resolutions, and d) an end to U.S. military, economic and other assistance to Israel.
While the NLG recognizes that some supporters of the "one state" or "two state" solutions may shrink from supporting one or another of these principles, each one stands at the heart of international law and human rights law. In addition, broad based campaigns against the occupation, for equal rights for all, and for return of refugees provide practical basis for unity in action.
End the occupation
The call for the complete Israeli withdrawal of settlers and soldiers from the territories acquired by force in 1967 is consistent with article 2, section 4 of the UN Charter that prohibits "the threat or use of force against the territorial integrity or political independence of any state."[2] It is also consistent with UN resolution 242 that affirms the "inadmissibility of the acquisition of territory by war," and requires "withdrawal of Israeli armed forces from territories occupied in the recent [1967] conflict."[3] It is also consistent with General Assembly resolution 2625 that says, "no territorial acquisition resulting from the threat or use of force shall be recognized as legal."[4]
Building a broadly supported worldwide movement against the Israeli occupation is especially important in view of Israel's escalating pressure on the civilian population of the Palestinian occupied territories, particularly in Gaza. The Fourth Geneva Convention, adopted August 12, 1949, addresses how civilians are to be treated during armed conflict, including civilians living in militarily "occupied territory."[5] Article 146 of the Convention requires signatory countries to take steps to address "grave breaches" of the Convention, including searching for persons who have committed grave breaches and bringing them before the courts of the signatory countries.
Article 147 defines the term "grave breaches" as follows:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The Israeli government appears to have violated each of these grave breaches except biological experiments.
The pressure against the civilian population includes food deprivation, destruction of agricultural land, destruction of infrastructure, home demolitions, diversion of aquifers, land expropriation and colonization in ethnically pure Jewish settlements on occupied territory, extrajudicial killings and targeted assassinations, detention without trial, mistreatment of prisoners, wall building, checkpoints, roadblocks, and restrictions on freedom of movement that limit access to health care, education, and employment.[6] With respect to the ethnically pure Jewish settlements on occupied territory, UN Security Council Resolution 465, adopted March 1, 1980, determined that Israel's policy and practices of settling parts of its population and new immigrants in the Arab territories occupied since 1967 "constitute a flagrant violation of the Fourth Geneva Convention . . . and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East."[7] Resolution 465 also "calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories."
The International Court of Justice decision, "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory," decided by the justices in a 14-1 vote,[8] the 150-6 vote by the UN General Assembly demanding Israeli compliance with that decision on July 20, 2004,[9] and the 157-7 vote by the UN General Assembly in 2006 supporting the rights of the Palestinian people to self-determination and to an independent state, and which stressed the need for Israel to withdraw from the Palestinian territory it has occupied since 1967,[10] all demonstrate a strong international consensus.
In a vote on Jerusalem, "the Assembly adopted a resolution reiterating its determination that any actions taken by Israel to impose its laws, jurisdiction and administration on the HolyCity are illegal and, therefore, null and void, and had no validity whatsoever. It did so by a recorded vote of 157 in favour to 6 against (Israel, Marshall Islands, Federated States of Micronesia, Nauru, Palau, United States), with 10 abstentions."[11]
In its decision on the wall, the International Court of Justice found that "the Fourth Geneva Convention is applicable to the Palestinian territories which before the 1967 conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel."[12]
The court further stated,
the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, of the Fourth Geneva Convention which provides: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The Security Council has taken the view that such policy and practices "have no legal validity" and constitute a "flagrant violation" of the Convention. The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.[13]
The Court also found that "the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention."[14]
The court further found that
the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child.[15]
The Court also found that the route of the wall "creates a ‘fait accompli' on the ground that could well become permanent, in which case . . . it would be tantamount to de facto annexation." This would violate the prohibition of acquisition of territory by force. The Court further obligated all states "not to recognize the illegal situation resulting from the construction of the wall . . . not to render aid" to the Israeli government in its illegal activities, and "to see to it that any impediment, resulting from construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end."[16]
Further illustrating the consensus, in his book, Palestine Peace Not Apartheid, former President Jimmy Carter wrote,
The bottom line is this: Peace will come to Israel and the Middle East only when the Israeli government is willing to comply with international law, with the Roadmap for Peace, with official American Policy, with the wishes of a majority of its own citizens-and honor its own previous commitments-by accepting its legal borders. . . . It will be a tragedy-for the Israelis, the Palestinians, and the world-if peace is rejected and a system of oppression, apartheid, and sustained violence is permitted to prevail.
A campaign against the occupation offers opportunity to unite with a broad range of groups and individuals in the US and around the world who want Israel out of the occupied Palestinian territories.
A successful movement against the occupation can also limit the Israeli government's ability to mount further aggressive wars of choice against neighboring countries, such as its attacks on Lebanon in 1948, 1978, 1982, 1993, 1996, and 2006, in which the Israeli government demonstrated a keen interest in acquiring Lebanese territory.[17] For example, starting on July 12, 2006, Israeli forces used massive bombing to depopulate the portion of Lebanon extending up to the Litani River. On August 11, 2006, the UN Security Council unanimously approved Resolution 1701 that called for a cease fire beginning 3 days later. Israel invaded on August 12 and attempted to occupy this area. Just before the UN Security Council cease fire came into effect on August 14, Israeli forces mined the area with millions of cluster bombs, dropped thousands of leaflets, and stationed soldiers along the Litani River to prevent civilians from returning. However, in a massive display of civil disobedience, on August 14, hundreds of thousands of Lebanese civilians defied orders from Israeli commanders, took to the roads immediately upon commencement of the cease fire, and returned home. This display of unity in action was a key factor forcing Israeli forces to withdraw.[18] On that occasion, united action by Lebanese civilians was successful in preventing a new occupation and settlement. Similarly, a worldwide movement against Israel's occupations could restrict the Israeli government's ability to mount such wars of aggression in the future. In view of the Israeli government's recent attack on Gaza and its current threats against Iran, uniting against aggression and occupation is particularly important.
Equal Rights
The call for "equal rights for all within Israel's pre-1967 boundaries" is supported by the UN Charter, UN General Assembly Resolution 181, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.
Article 1, section 2, of the UN Charter says that one of the purposes of the United Nations is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples." Article 55 calls for "respect for the principle of equal rights and self-determination of peoples," and section (c) of article 55 calls for "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."[19]
Concerning both the Jewish State and the Arab State that its plan of partition recommended, chapter 2 of UN General Assembly Resolution 181, adopted in 1947, says, "No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex. All persons within the jurisdiction of the State shall be entitled to equal protection of the laws."[20]
Article 1 of the Universal Declaration of Human Rights, adopted in 1948, says, "All human beings are born free and equal in dignity and rights." Article 2 says,
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 7 says, "all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."[21]
Article 26 of the International Covenant on Civil and Political Rights, adopted in 1966, says,
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[22]
The NLG's 2007 resolution places the NLG in support of the growing campaign among Israeli Palestinians for equal rights within Israel as exemplified by Adalah--The Legal Center for Arab Minority Rights in Israel.[23] The resolution notes that
Israel's human rights violations are not limited to the Occupied Territories. Inside Israel, Palestinians are subjected to a system of de jure discrimination administered by the State and quasi-governmental entities. Land-ownership practices and harshly discriminatory immigration laws, for example, strongly favor Jewish citizens. Settlements serving only Jewish citizens have been massively supported by the State to facilitate Jewish immigration and to secure an expanded Jewish State.
A campaign demanding equal rights for all within Israel is vital.
Return of Refugees
The call for "full implementation of the right of refugees and their descendants to return to their homes and villages and to receive just compensation" is supported by the Fourth Geneva Convention, the 1907 Hague Regulations, UN General Assembly Resolution 181, UN Security Council Resolution 194, the Universal Declaration of Human Rights, UN Security Council Resolution 242, and the International Covenant on Civil and Political Rights.
Article 49 of the Fourth Geneva Convention says,
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons do demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. . . . The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.[24]
Chapter 2 of UN General Assembly Resolution 181, says, "No expropriation of land owned by an Arab in the Jewish State (by a Jew in the ArabState) shall be allowed except for public purposes. In all cases of expropriation full compensation as fixed by the Supreme Court shall be said previous to dispossession."[25]
Section 11 of UN Security Council Resolution 194
Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.[26]
Article 13 (2) of the Universal Declaration of Human Rights says, "Everyone has the right to leave any country, including his own, and to return to his country."[27]
UN Security Council Resolution 242 "affirms further the necessity . . . for achieving a just settlement of the refugee problem."[28]
Article 12 of the International Covenant on Civil and Political Rights says, "No one shall be arbitrarily deprived of the right to enter his own country."[29]
Professor Susan Akram has noted,
In every part of the globe, the right of refugees to return to their homes and lands of origin is incorporated in peace treaties and recognized by all states. In fact, the right of return is one of the most, if not the most widely-implemented and recognized right in refugee law. . . . Under international law refugee return is the rule, and non-recognition of Palestinian refugees' right to return is an aberration[30]
UN General Assembly Resolution 181 did not authorize transfer of the Arab population from the Jewish state it recommended establishing. To the contrary, the resolution included a provision requesting that "the Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution."[31] The actual Jewish population in the Jewish state recommended by UN General Assembly Resolution 181 exceeded the actual non-Jewish population in that state by a margin of only 55% to 45%.
Interestingly, UN Resolution 181 included some features of a one-state outcome in its recommendation that two states be created. The Arab and Jewish states would have been joined in an economic union. Each state would have had a constitution guaranteeing equal rights for all and making discrimination illegal. All citizens and residents of each state would have had freedom of transit and visit in the other state and in the city of Jerusalem. Jerusalem would have been an international city separate from both states, but its population would have been citizens of one of the two states. Expropriation of land owned by Arabs in the Jewish state or Jews in the Arab state was expressly prohibited.[32]
No basis exists in Resolution 181 or any other treaty or UN resolution for the "right" of the Israeli government to discriminate against Palestinians or to refuse the right of Palestinian refugees to return to their homes for any reason, including to maintain the current 80% Jewish majority in Israel.
In his book, The Ethnic Cleansing of Palestine, Israeli historian Ilan Pappe described how, immediately after passage of Resolution 181 on November 29, 1947, what later became the Israeli government directed armed attacks sequentially against hundreds of Arab villages. In many cases, what Pappe calls "the Jewish forces" occupied the villages, separated the men from the women, used hooded informers to select certain of the men, and shot them. The Jewish forces then looted and dynamited the houses, planted mines in the rubble, expelled the civilian population outside the borders of the state, and took over their land for exclusively Jewish settlement. In other villages, the Jewish forces massacred most of the civilian population. These armed attacks also expanded the borders of the Jewish state to include areas Resolution 181 designated for the Arab state. Pappe notes that Jewish forces attacked and destroyed about 30 Arab villages by the end of March, 1948 (p. 82). They attacked and destroyed 200 more villages under efficient planning--"Plan Dalet"--in the next six weeks before May 15, 1948 (p. 104). Thus, Jewish forces expelled about 250,000 Palestinians during the 5 ½ months after UN Resolution 181 was adopted and before the entry of Arab forces from neighboring states on May 15 (p. 40 and 119). Pappe also notes that the entry of the Arab armies from Egypt, Jordan, Syria, and Iraq was a consequence of these events (p. 123). All of these atrocities occurred despite the provisions of Resolution 181 that each state must accept the obligation "to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations" and in violation of the provisions of Resolution 181 against discrimination, for equal rights, and against expropriating Arab lands. Resolution 181 flatly prohibited the armed attacks on villages, the killings, destruction, expulsions, expropriations, and land grabbing directed exclusively against the Arab civilian population.
In May, 1948, Israel's future Prime Minister, David ben Gurion, wrote a letter to commanders of the Hagana brigades that they should not be distracted from their troops' principal task by the potential entrance of the Arab Legion: In the letter, ben Gurion wrote, "the cleansing of Palestine remained the prime objective of Plan Dalet." (p. 128).
As noted by Michael Kagan, "by 1948, forced expulsion had already been clearly established as a war crime or crime against humanity." Kagan notes that the Charter of the International Military Tribunal established in 1945 by the United States, France, UK, and USSR "for the just and prompt trial and punishment of the major war criminals of the European Axis," defined war crimes as
violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
The same charter defined crimes against humanity to include "deportation and any other inhumane acts committed against any civilian population, . . . or persecutions on political, racial or religious grounds."[33]
As noted by Gail J. Boling, the right of return is legally binding upon all states as a customary norm of international law, and "the right of return has guaranteed the 1948 Palestinian refugees an absolute, unqualified right to return to their homes of origin continuously since the period of their initial displacement during the events surrounding the 1948 conflict."[34] Boling further notes:
Whenever the facts demonstrate that deliberate, forcible governmental expulsion has been practiced, a heightened obligation to implement the right of return exists. . . . International law prohibits forcible expulsion even when practiced against a single individual. Therefore, the prohibition is accordingly stronger against expulsions practiced on a "mass" scale affecting large numbers of people. Similarly, since discrimination based upon racial, ethnic, religious or political criteria is independently prohibited by customary international law, the prohibition against forcible expulsions ("mass" or otherwise) is even stronger against expulsions practiced in a discriminatory manner, i.e., when targeting a particular ethnic or minority subgroup of the population based upon racial, ethnic, religious or political grounds. Accordingly, "mass" forcible expulsions carried out in a discriminatory manner based upon racial, ethnic, religious or political grounds would be the most strongly prohibited under international law, by virtue of being prohibited on three, independent bases. Each violation of any one of these three, independent prohibitions, therefore, would provide additional, supplementary grounds for the obligation of the expelling state to implement of the right of return of the wrongfully expelled persons. A "state of origin" (which an expelling state would necessarily be) already has an absolute obligation to allow displaced persons to return to their homes of origin (as was discussed in the preceding paragraph). However, an expelling state--by virtue of the additional illegality of the forcible expulsion ("mass" or discriminatory or otherwise)--accordingly would have an even greater obligation to repatriate (i.e., allow to exercise their right of return) wrongfully expelled persons. Thus the obligation of the expelling state of origin to implement the right of return of expelled persons is, from a legal perspective, even greater than absolute.[35]
In calling for refugees' right of return, the NLG resolution provides a partial remedy for the illegal ethnic cleansing of Palestine. In addition, those responsible for, and those who participated in, the ethnic cleansing operations should be held accountable.
End US Aid
In view of the continuing and escalating use of US supplied military equipment for gross violations of human rights by the Israeli government in the occupied territories and in its wars against neighboring states,[36] the resolution's call for "an end to U.S. military, economic and other assistance to Israel" is supported by provisions of the U.S. Arms Export Control Act, the Foreign Assistance Act, the 1952 Mutual Defense Agreement between Israel and the US, and is consistent with the Leahy provision of the Foreign Operations Appropriations Act and of the Defense Appropriations Act.
The U.S. Arms Export Control Act (AECA) provides that military sales be "in furtherance of . . . the purposes and principles of the United Nations Charter."[37] The Foreign Assistance Act of 1961 (FAA) says that, except under extraordinary circumstances certified in writing by the President, "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights. . . . "[38] The 1952 Mutual Defense Agreement between Israel and the US, signed in 1952, says, "The Government of Israel assures the United States Government . . . that it will not undertake any act of aggression against any other state."[39] The Leahy provision says, "None of the funds made available by this Act may be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights. . . ."[40] In addition to calling for ending US aid, the resolution supports a call by 170 Palestinian labor and civic organizations to divest and boycott[41] until the Israeli government complies with international law and principles of human rights.[42]
Self-determination
The resolution also recognizes that the principle of self-determination, as provided in the UN Charter,[43] the International Covenant on Civil and Political Rights,[44] the International Covenant on Economic, Social, and Cultural Rights,[45] UN General Assembly resolution 2625,[46] and the International Court of Justice decision on the wall,[47] requires leaving certain subjects exclusively for Palestinians to choose. As noted by Zaha Hassan, the International Court of Justice
reaffirmed that Article 2(4) of the UN Charter, which prohibits the threat or use of force against the territorial integrity of any state, is customary international law and that the principle of self-determination found in the Charter and in other human rights conventions is applicable to non-self-governing territories. The Court also found that Israel, as a signatory to the Charter, is subject to these same international human rights conventions in the occupied Palestinian territories. The Court's opinion also recognized that, as a legal matter, Palestinians exist as a people and, as such, have a right to self-determination.[48]
While everyone has the right to advocate for principles of international law and human rights, one aspect of the principle of self-determination is that non-Palestinian Middle East peace advocates, such as American lawyers, do not have the right to intervene for either a one-state or a two-state solution. As the resolution points out, "these matters are for the Palestinians to decide." Palestinians would likely make such decisions in the context of an actual settlement. Until then, advocacy consistent with international law provides a way to build support for Palestinian rights and avoids legitimizing illegal Israeli actions.
Support Palestinian Rights, avoid legitimizing Israeli violations
The resolution recognizes that one fundamental principle of international law need not be sacrificed for another. The approach taken by the NLG, calling for withdrawal from occupied territories, equal rights, return of refugees, Palestinian self-determination, and an end to US aid, preserves principles of international law and human rights law that underlie the views of many "one state" and "two state" advocates. The approach also avoids legitimizing any illegal Israeli action or detracting from any Palestinian right.[49]
Practicality
Much of the debate between "one state" and "two state" advocates concerns practicality. The experience of successful organizing to end slavery and wars, to gain union rights, women's right to vote, civil rights, gay rights, and to end South African Apartheid, shows that what is most practical is to build a campaign in support of a human rights principle, and that substantial changes can be achieved if such a campaign is built.
Public Action-the Free Gaza Movement
The Free Gaza Movement, with its voyages to Gaza, illustrates one kind of public action supported by the NLG and its Free Gaza Working Group and in which NLG members participated.[50] The purposes of the voyage included challenging the Israeli blockade of Gaza, highlighting the humanitarian crisis resulting from that blockade, and building a campaign to end the Israeli occupation of Palestine. When the Israeli government chose not to exercise its power to block the initial five Free Gaza voyages, hopes were galvanized worldwide that further challenges to the Israeli occupation could also be successful. But then Israeli forces invaded and bombed Gaza, breaking a successful ceasefire with Hamas, on November 4, 2008 killing 6 Hamas members. They continued military incursions into Gaza for the next 8 weeks and vastly escalated these operations with a massive bombing and large scale invasion beginning on December 27, 2008. During this 22 day attack, and since it ended, Israeli forces also violently attacked three more Free Gaza Movement voyages. However, more such voyages are planned. Those 22 days also saw large demonstrations in cities around the world demanding an end the Israeli attack and an end to the occupation.
Legal Action
Cases brought by a group of cooperating attorneys, including founding member of the NLG's Free Gaza Working Group, Maria LaHood of the Center for Constitutional Rights, are among legal efforts in several countries to put an end to the idea that the Israeli government enjoys an exception to international law that protects civilians living under military occupation. The suits include:
o Matar v. Dichter, against Avi Dichter, former Director of Israel's General Security Service (GSS) who was responsible for a "targeted assassination"--dropping a one ton bomb on an apartment building in al-Daraj, a heavily populated residential neighborhood in GazaCity that killed 15 Palestinians and wounded more than 150 civilians.
o Belhas v. Ya'alon, against retired Israeli Lieutenant General Moshe Ya'alon, responsible for the 1996 shelling of a United Nations compound in Qana, Lebanon where more than 800 civilians had taken refuge. The shelling killed over 100 civilians and injured many more. The suit charges that the shelling constitutes war crimes, crimes against humanity, and cruel, inhuman or degrading treatment or punishment.
o Corrie v. Caterpillar, against Illinois-based Caterpillar, Inc., on behalf of the parents of Rachel Corrie, the 23-year-old American peace activist and student who, in March 2003, was run over and killed by a Caterpillar D9 bulldozer as she tried to protect a Gaza home from being demolished while the family was inside. The suit is also on behalf of Palestinian families whose family members were killed or injured when Caterpillar bulldozers demolished their homes. The suit charges Caterpillar with aiding and abetting war crimes and other human rights violations on the grounds that the company provided bulldozers to the Israeli Defense Forces knowing they would be used unlawfully to demolish homes and endanger civilians in the OccupiedPalestinianTerritory.
Conclusion
While divisive argument between advocates of "one state" and "two state" solutions have not provided a practical way to build a worldwide campaign for Palestine, widely accepted principles enshrined in international law and in human rights law can be the basis for building such a movement. Israel's strength is its enormous military power and the support it receives from imperial powers, particularly the United States. Palestine's strength is the unity and steadfastness of its people, international support, and rights under international law, as demonstrated by the 2004 decision of the International Court of Justice. Palestinians also have in Israel a government that is vulnerable because of its heinous violations of international law and human rights law inherent in its occupation of territory acquired by force, its treatment of Palestinian civilians living under its occupation, and its treatment of its own Palestinian citizens.
In an actual settlement Palestinians may be forced to relinquish some of their rights, given the enormous imbalance of military power between Israel and Palestine. Even so, an actual settlement differs sharply from mere advocacy for a two state or a one state solution. In an actual settlement Palestinians get something of tangible value in exchange. Mere advocacy for either solution, however, exclusively involves giving up Palestinian rights and legitimizing illegal Israeli government actions, without a settlement; Palestinians get nothing at all in exchange. If Palestinians or their supporters adopt a final status solution, such as advocating for a one-state or a two-state solution, they just forfeit Palestinian rights under international law and legitimize Israel's illegal actions. They grant the Israeli government the legitimacy it craves and they give the Israeli government that much less reason to deal with Palestinians or settle with them.
By contrast, building a worldwide movement for one or more of the fundamental principles--ending the occupation, equal rights, return of refugees, and ending US aid--can avoid paralyzing disunity, expose the illegitimate actions of the Israeli government, advance the rights of Palestinians, and promote a just resolution of the Israeli-Palestinian conflict.
James Marc Leas is a member of the Vermont Chapter of the National Lawyers Guild and is a founding member of the NLG's Free Gaza Working Group. He participated in the NLG delegation to Gaza in February, 2009.[51]
[1].NLG resolution, "Israel: Boycott and Divest!" submitted August, 2007, approved by a majority at the NLG Convention in Washington, DC, November 2, 2007, and adopted after a mail ballot. http://nlg.org/membership/resolutions/2007%20Resolutions/Israel%20Boycott%20and%20Divest%20resolution.pdf
[2].UN Charter http://www.yale.edu/lawweb/avalon/un/unchart.htm
[3].UN resolution 242 http://www.un.org/documents/sc/res/1967/scres67.htm
[4].General Assembly resolution 2625 http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR034890.pdf?OpenElement
[5].Fourth Geneva Convention http://www.unhchr.ch/html/menu3/b/92.htm
[6] "Onslaught: Israel's Attack on Gaza & The Rule of Law," the report of the NLG delegation to Gaza from February 2-8, 2009, describes concerted bombing, artillery and white phosphorus attacks on the civilian population and civilian infrastructure of Gaza during Israel's December 27 to January 18, 2009 invasion and other grave violations. The report is available at http://nlg.org/NLGGazaDelegationReport.pdf
[7].UN Security Council Resolution 465 http://www.israelipalestinianprocon.org/Documentlistpdf/UNSECCONRES465.pdf
[8].The International Court of Justice, "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory," Summary of the Advisory Opinion of 9 July 2004, page 9, http://www.icj-cij.org/docket/files/131/1677.pdf
[9].UN General Assembly July 20, 2004 http://www.un.org/News/Press/docs/2004/ga10248.doc.htm
[10].UN General Assembly December 1, 2006, http://www.un.org/News/Press/docs/2006/ga10543.doc.htm,
[11].Ibid.
[12]. Summary of the Advisory Opinion of the ICJ, page 9, 2nd paragraph. http://www.icj-cij.org/docket/files/131/1677.pdf
[13].Summary of the Advisory Opinion of the ICJ, page 10, 4th paragraph http://www.icj-cij.org/docket/files/131/1677.pdf
[14].Summary of the Advisory Opinion of the ICJ, page 11, 2nd paragraph. http://www.icj-cij.org/docket/files/131/1677.pdf
Article 46 Hague Regulations of 1907 is in section III concerning Military authority over the territory of the hostile state" and says "Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated." Article 52 prohibits requisitions in kind and services from municipalities and inhabitants. Article 53 of the Fourth Geneva Convention states, "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations."
[15].Summary of the Advisory Opinion of the ICJ, page 11, 2nd paragraph http://www.icj-cij.org/docket/files/131/1677.pdf
[16].Summary of the Advisory Opinion of the ICJ, page 13, 4th paragraph http://www.icj-cij.org/docket/files/131/1677.pdf
[17]."Israel Violates UN Resolution 1559," by James Marc Leas, August 19, 2006, http://mwcnews.net/content/view/8875/26/
[18]."How Lebanese Civilians Thwarted Israel's War," by James Marc Leas, August 25, 2006, http://www.counterpunch.org/leas08252006.html
[19].UN Charter, see footnote 2 for url.
[20].UN General Assembly Resolution 181, adopted November 29, 1947 http://www.yale.edu/lawweb/avalon/un/res181.htm
[21].Universal Declaration of Human Rights, http://www.un.org/Overview/rights.html
[22].International Covenant on Civil and Political Rights, article 26, adopted December 16, 1966, http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
[23].Adalah--The Legal Center for Arab Minority Rights in Israel http://www.adalah.org/eng/backgroundlegalsystem.php
[24].The Fourth Geneva Convention, article 49, see footnote 5 for url.
[25].Chapter 2 of UN General Assembly Resolution 181, see footnote 14 for url.
[26].Section 11 of UN Security Council Resolution 194, December 11, 1948, http://en.wikipedia.org/wiki/United_Nations_General_Assembly_Resolution_194
[27].Article 13 (2) of the Universal Declaration of Human Rights, see footnote 15 for url.
[28].UN Security Council Resolution 242, see footnote 3 for url.
[29].Article 12 of the International Covenant on Civil and Political Rights, see footnote 16 for link to ICCPR.
[30].The MIT Electronic Journal of Middle East Studies, Spring 2008, http://web.mit.edu/cis/www/mitejmes/Table%20of%20Contents%20and%20Editor's%20Note.pdf
[31]. UN General Assembly Resolution 181, see footnote 14 for url
[32].UN General Assembly Resolution 181, see footnote 14 for url.
[33]."Do Israeli Rights Conflict with the Palestinian Right of Return," Michael Kagan, Attorney, Tel Aviv University, Working Paper No. 10, BADIL Resource Center for Palestinian Residency & Refugee Rights, August 2005.
[34]."The 1948 Palestinian Refugees and the Individual Right of Return, an International Law Analysis," by Gail J. Boling, Coordinator, Legal Unit, BADIL Resource Center for Residency and Refugee Rights, PO Box 728, Bethlehem, Palestine, http://www.badil.org/Publications/Legal_Papers/RoR48.pdf.
[35].Ibid.
[36].The Al Aqsa Intifada and Israel's Apartheid: The U.S. Military and Economic Role in the Violation of Palestinian Human Rights. http://www.pchrgaza.org/Library/NLG_MidEastReport.pdf This report of the 2001 NLG delegation to the occupied Palestinian territories includes description of the delegation's findings in light of international and US laws, including the UN Charter, the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, the U.S. Arms Export Control Act, and the Foreign Assistance Act.
[37].The U.S. Arms Export Control Act (AECA), http://www.law.cornell.edu/uscode/22/usc_sec_22_00002751----000-.html
[38].The Foreign Assistance Act of 1961 (FAA), 22 U.S.C. 2304, http://www.law.cornell.edu/uscode/22/usc_sec_22_00002304----000-.html
[39].1952 Mutual Defense Agreement between Israel and the US, signed July 23, 1952, http://www.policyalmanac.org/world/archive/crs_israeli-us_relations.shtml
and http://digital.library.unt.edu/govdocs/crs//data/2005/upl-meta-crs-6338/meta-crs-6338.ocr
[40].Links to the two Leahy laws first enacted in 1997 are at http://leahy.senate.gov/issues/humanrights/law.html
[41].An explanation of legal aspects of calling for boycott and divestment and lobbying for government sanctions is found in three articles by Victor Kattan: "The EU's pivotal role in Middle East peace," by Victor Kattan, in Review of International Social Questions, January 8, 2005, http://www.risq.org/article394.html; "Enforcing the World Court's Advisory Opinion," by Victor Kattan, http://www.arabmediawatch.com/amw/CountryBackgrounds/Palestine/IsraelsWall/EnforcingtheWorldCourtsAdvisoryOpinion/tabid/310/Default.aspx; and "The Wall, Obligations Erga Omnes and Human Rights: The Case for Withdrawing the European Community's Terms of Preferential Trade with Israel," by Victor Kattan, Research Fellow, British Institute of International and Comparative Law, Palestine Yearbook of International Law, Vol. 13, pp. 71-89, 2004-2005 http://papers.ssrn.com/sol3/papers.cfm?Abstract_id=993462
[42].The BDS campaign is described by the BADIL Resource Center for Palestinian Residency & Refugee Rights at http://www.badil.org/Publications/badil-nakba-60-info-packet/posters/BDS-Call.pdf
at http://www.badil.org/ and at http://www.bds-palestine.net/
[43].UN Charter, Article 1, section 2, and Article 55 as quoted in footnote 13.
[44].International Covenant on Civil and Political Rights, article 1, section 1, says, "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
(See footnote 15 for link to the ICCPR).
[45].International Covenant on Economic, Social, and Cultural Rights Article 1, section 1, adopted Decmber 6, 1966, has wording regarding self determination identical to that in the International Covenant on Civil and Political Rights, as quoted in footnote 39. http://www.unhchr.ch/html/menu3/b/a_cescr.htm
[46].UN General Assembly Resolution 2625 elaborates on "the principle of equal rights and self-determination of peoples," and says, "every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence." See footnote 4 for link to Resolution 2625.
[47].In "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory," Summary of the Advisory Opinion of the International Court of Justice, 9 July 2004, page 9, http://www.icj-cij.org/docket/files/131/1677.pdf, the court finds support for self-determination in view of the UN Charter, General Assembly resolution 2625, and Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, and "lays upon the States parties the obligation to promote the realization of that right and to respect it. . . and made the principle of self-determination applicable to all [non-self governing territories], and that the right of peoples to self-determination is today a right erga omnes [applicable to all people]." One aspect of self-determination recognized by the International Court of Justice in its 2004 decision on the wall is that the Israeli military occupation and construction of the wall and "the de facto annexation of land interferes with the territorial sovereignty and consequently with the right of Palestinians to self-determination." In 1991 Israel ratified the two international covenants.
[48]."Building Walls and Burning Bridges: Legal Obligations of the United States with Respect to Israel's Construction of the Wall of Separation In Occupied Palestinian Territory," by Zaha Hassan, Borders and Boundaries in International Law, Willamette Journal of International Law, 2005 Volume 13:2 (Winter) http://www.willamette.edu/wucl/journals/wjildr/publications/. Zaha Hassan is a human rights lawyer.
[49].An article "Struggle for equality," by Nadia Hijab and Victoria Brittain, December 17, 2007, includes the same principles and recognizes similar flaws in the one state two state debate. http://commentisfree.guardian.co.uk/nadia_hijab_and_victoria_brittain/2007/12/struggle_for_equality.html
[50]. The NLG's Free Gaza Working Group was founded at a meeting at the NLG's national convention on October 16, 2008.
[51] "Onslaught: Israel's Attack on Gaza & The Rule of Law," the report of the NLG delegation to Gaza from February 2-8, 2009, is available at http://nlg.org/NLGGazaDelegationReport.pdf
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