Written evidence from the Exfam Group (MEP0019)

Submission to the Commons Foreign Affairs Committee regarding the Occupied Palestinian Territory

by

The Exfam Group[1]

March 2017

Abstract:

• Full adherence to the requirements of International Humanitarian Law (IHL) and the UN Charter (UNC), as called for in UNSCR 2334, is vital for a lawful, durable peace.
• Avoidance of any mention of the requirements of IHL and the UNC in the Quartet Road Map runs the risk of fundamental and binding principles of law being violated.
• The negotiation of land swaps prior to an end to the Occupation explicitly violates IHL, to which the UK and all other States Party are absolutely bound.
• The temptation to gloss over the law on account of Israeli faits accomplis on the ground must be resisted because a settlement outside the law will be unjust, illegal, a driver of radicalisation, while being itself anything but durable. Those cheated of fulfilment of the law will repudiate an illegal settlement, either now or in the future.
• To ensure full respect of IHL and the UNC, there must be adverse consequences for the Occupier for any violations, so that it bears both the burden of occupation and full accountability for its actions. If the UK and its allies are unwilling to ensure such consequences in order to achieve a two-state solution consistent with IHL and the UNC, only a unitary Arab-Jewish state between the river and the sea can ensure equal rights for all, and the UK should make this clear.

Submission:

1. United Nations Security Council Resolution 2334 (16 Dec 2016) is welcome because it reasserts the Council’s view that the fundamental rules of international conduct must govern the way this conflict is handled.

2. These rules are vital regarding full respect for IHL, without which the law is universally undermined. Furthermore, as UNSCR 2334 implies, only their proper and full observance can provide the basis for a just (in as much as justice can now be achieved) and durable resolution of the conflict. These rules are:

(a) “the inadmissibility of the acquisition of territory by force” (the logical corollary of UN Charter Art. 2.4. and the overarching governing principle of UNSCR 242 of 22 Nov. 1967), which is an established rule of customary law and a fundamental rule of membership of the United Nations;

(b) the Fourth Geneva Convention (4GC), named in the resolution, but also implicitly including The Hague Regulations of 1907.[2] None of these rules should be tampered with, glossed over, or short-cut.

3. The resolution also invokes the Quartet’s Road Map of 2003 (UN ref S/2003/529), a peace plan which avoids stating the requirements mentioned above in 2(a) and (b). It may be easier to gain agreement by avoiding awkward subjects but Israel does not accept the international consensus (which includes the International Court of Justice and the ICRC) that 4GC is applicable. This avoidance runs the risk that fundamental and binding principles of IHL and the Charter will be violated.

4. The Road Map implicitly parts company with IHL. Phase II calls for “implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with the establishment of a Palestinian state with provisional borders.” Phase III envisages “a final, permanent status resolution…”  and refers to “a negotiated resolution on the status of Jerusalem.” Such phrases seem innocent and worthy enough, but they avoid articulating what has been at the heart of negotiations: territorial exchanges, usually referred to as “land swaps”. While 4GC remains operative, negotiating such land swaps is explicitly contrary to international law (see paras 5 & 6 below). Such swaps are inherent to “the Clinton Parameters” in 2000. They remained at the heart of subsequent negotiations by Secretary Kerry, with a view to allowing about 80 per cent of illegal settlers in the principal blocs to come under Israeli sovereignty. In 2010 President Abbas announced that the Palestinian Authority (PA) and Israel had agreed on the principle of a land swap. As party to the Quartet, it appears that the EU also seems to have accepted the principle of negotiated land swaps (or has not objected to them). All these bodies, the US, Israel, the PA and the EU are toying with illegality.

5. Article 8 (NON-RENUNCIATION OF RIGHTS) of 4GC clearly states: “Protected persons may in no circumstances renounce in part or in entirety the rights secured to them in the present Convention…” The official 1958 ICRC Commentary explains why this principle is inviolable despite any political events which may occur, and puts its finger on the pressure under which persons (or their representatives, i.e. the PA) under belligerent occupation, may find themselves from the Occupier. It may not lawfully succumb to such pressure. As the commentary states, “The affirmation is explicit.”[3]

6. Article 47 (INVIOLABILITY OF RIGHTS) comes at the outset of Section III of 4GC and deals specifically with Occupied Territory. It repeats that:

“Protected persons… shall not be deprived in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

The ICRC Commentary states, “The position of Article 47 at the beginning of the   Section dealing with occupied territories underlines the cardinal importance of the safeguards it proclaims.”[4] It is clear that the only reason land swaps are contemplated at all is to accommodate illegal faits accomplis by the Occupier, precisely the danger the Convention presciently had in mind.

7. We see no getting around this fundamental legal requirement, nor its honourable purpose: the protection of defenceless people faced with irresistible pressure. Only the law stands between them and the rapacity of the Occupier. Furthermore, the UK and its allies, all of which are States Party to the Convention have undertaken in Art.1 of 4GC “to respect and ensure respect for the Convention in all circumstances.” This includes violations committed by third parties. The UK affirms it takes its obligations under 4GC extremely seriously. However, the UK would itself be in breach if it recognised any such negotiation for a land swap. Negotiating swaps prior to an end of the occupation is illegal. That is clear from 4GC (and its Commentary). Swaps are only legal if negotiated after the Convention has ceased to apply, when the PA would be free to sign away anything it wished.

8. One may be perplexed by this, bearing in mind that those who drafted UNSCR 242 undoubtedly envisaged minor changes to the 1949 Armistice (Green) Line in order to make it more defensible on both sides. This accounts for the ambiguous operative clause (i): “Withdrawal of Israel armed forces from [not the] territories occupied in the recent conflict;” allowing, so the UK drafters assumed, just the necessary degree of flexibility, i.e. not all the territories. However, there is no evidence[5] that they asked their legal advisers how this would square with the Laws of Occupation. Resolution 242 ‘affirms’, but does not ‘decide’, remaining a statement of principles (not absolutely binding obligations as they would be under Chapter VII of the UN Charter). These principles, however, must remain lawful, subject to IHL. Thus, the ‘constructive ambiguity’ of clause (i), while arguably worthy in intention, can only refer to border adjustments agreed after an occupation has ended, for according to IHL, no border changes may lawfully be agreed until after the Convention ceases to apply (4GC Arts.8, 47). There is a second obvious test for any territory the Occupier might wish to retain, for example East Jerusalem: how was it obtained? It was obtained by force in 1967 and that contravenes the UN Charter Art. 2.4.

9. When politicians contemplate the practical difficulties of upholding the Laws of Nations in this context, their immediate response is likely to be, “this is not realistic”, hence any number of schemes dreamt up in international fora to find a negotiating basis acceptable to both the Occupier and the occupied. That view should be challenged on several grounds:

(a)   Israel knew it was law breaking from the outset. It was warned both during and straight after the 1967 War by senior law officers,[6]  but reckoned that by establishing facts and seeking to deceive,[7] the international community would be deterred from requiring absolute respect for IHL and the UN Charter.

(b)   Going for this “realism” punishes the innocent party, the civilians of occupied Palestine who, both communally and in many cases individually, have had their land illegally expropriated. However one may wish to describe it, forcible seizure of this kind is strictly prohibited by The Hague Regulations Arts. 46, 47, 53, and 56, as well as 4GC, Arts. 53 and 147 (where it is listed as a grave breach). Furthermore, ordinary Palestinians do not wish to swap land because it will be fundamentally unjust: they will not, for example, be offered an encircling crescent of development around West Jerusalem to match Israel’s illegal settlement crescent around East Jerusalem. They are likely to be offered scraps of semi-desert adjoining the Gaza Strip.

(c)   One should also recognise that the “realism” of the last half century has never led to a willingness on the part of the Occupier to withdraw, even with the promise of minor border changes along the 1949 Armistice Line as envisaged by the US and the UK[8]. Instead, the view that applying the fundamental prohibition of the UN Charter (regarding territorial acquisition by force) and ensuring respect for IHL was not really feasible, has led progressively to a far more difficult situation than ever it was in the years of the first decade of occupation, 1967-77.

(d)   Who is responsible? Principally the Occupier itself for knowingly disregarding the UN Charter and IHL, but also complicit with it are those who did not tell the Occupier clearly and emphatically that violation of these instruments would not be tolerated and would lead to adverse consequences.

(e)   In any case, the so-called realism of allowing IHL to be breached in such a fundamental way cannot possibly lead to a durable and lasting peace. In the words of one eminent jurist “It goes without saying that the outcome of an unlawful act is tainted with illegality”[9]  And if it is tainted with illegality, aggrieved Palestinians will have every ground for refusing it, because States Party abandoned the obligations which they “remain bound to fulfil by virtue of the principles of the law of nations, as they result from… the laws of humanity and the dictates of public conscience.”[10]

(f)    Finally, but perhaps most immediately, the injustice Muslims worldwide see in the story of Palestine is one of the principal drivers of radicalisation. Britain specifically promised the people of Palestine self-determination in November 1918, only to renege on the undertaking twelve weeks later when it was realised that 90 per cent of the population opposed the Jewish nationalist project.[11]  Declaring its determination to see IHL implemented in Occupied Palestine would tell Muslims that the UK is not hypocritical about the impartial application of law. 

Overall, seeking to sidestep the need for the law to be respected stores up trouble   for the future, as it already has done since 1967.

10. UNSCR 2334 is the first occasion on which the Security Council has referred to “the Palestinian territory” (rather than ‘territories’, para. 4 of the preamble). It can only mean that territory of Mandate Palestine occupied in June 1967, including East Jerusalem. Since it appears in this resolution, the UK should adopt the term too.

11. UNSCR 2334, operative clause 5 “Calls on all States… to… distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.” This must include Israel itself, which remains unwilling to do so. From 1967, its printed maps omitted the 1949 Armistice Line to imply that the whole territory is Israel. It uses the territories as an economic asset. Yet this, too, is illegal. The economy of occupied territory must be kept separate, as established during the Nuremberg Tribunals examining similar malfeasance by the Third Reich:

The economy of the belligerently occupied territory is to be kept intact, except for carefully defined permissions … which all refer to the army of occupation. Just as the inhabitants of the occupied territory must not be forced to help the enemy…, so must the economic assets of the occupied territory not be used in such a manner.[12]

The UK must examine critically whether it should permit settlement produce to be imported at all, in order to ensure it complies with the full meaning of Clause 5, given that such imports are “tainted with illegality.”

12. What steps should the UK and other members of the Security Council take to ensure that all States respect this Clause 5 distinction? Unfortunately, the importance of IHL is treated more seriously in the case of the UK’s perceived enemies than of its friends. This may be understandable but it undermines belief in the impartiality of its commitment under its 4GC Art. 1 obligation “to ensure respect for the Convention in all circumstances.”

13. Will Israel respect UNSCR 2334, with full adherence to IHL as demanded in it? It guarantees Israel undisputed control of the 78 per cent of Mandate Palestine captured in 1948. What more should it have? For 50 years Israel has violated 4GC regarding the remaining 22 per cent occupied in 1967, including grave breaches listed at Art. 147. Its house demolitions, for example, are so extensive it is as if a population roughly equivalent to that of Oxford had been rendered homeless.[13] Israel’s lawbreaking has never incurred adverse consequences, so it has continued to breach IHL. There must be consequences such as will compel Israel to come into compliance with IHL, otherwise there can be no lawful two-state solution. Does the UK have the stomach actively to assert absolute compliance with IHL? Alternatively, the drift will continue: creeping annexation, more bloodshed and despair by those wrongfully unprotected by IHL. In which case, is the UK courageous enough to demand the only ethical alternative to total compliance with IHL and the UNC, which is a single Arab-Jewish state in all Palestine, based on equal rights for all?

THE EXFAM GROUP

Brief profiles of those calling for the positive application of International Humanitarian Law regarding Israel/Palestine.  All have worked with Oxfam.

Dr Jean Bowyer Brown is a paediatrician with a career-long interest in global child health, and has worked in Lebanon, Saudi Arabia, the occupied Palestinian territory, East Africa and Myanmar as well as in the NHS.  In 1980 she joined the Middle East Committee of Oxfam and later took the chair, and also served as an Oxfam Trustee for 6 years. Her current work is mainly in teaching emergency paediatric care to front-line staff in developing countries.

David Bryer took a BA and DPhil Middle East studies; Oxfam Field Director Middle East, 1975-1979; its Overseas Director, !984-1991; Director, !992-2001; Board Oxfam America, 2003-2007; Chair, Oxfam International, 2003-2007.

Peter Coleridge studied Arabic for his BA and has related to the Middle East for most of his life, as a teacher and development worker. He was Oxfam Middle East Regional Coordinator, 1981-1994. He is on the Board of MAP (Medical Aid for Palestinians) for whom he visits OPTI once a year. He is a researcher and writer on disability, and during his time with Oxfam was instrumental in launching CBR (community based rehabilitation) programmes in the Middle East, especially in the Palestinian context.  He has since advised WHO, the ILO, and the EU on disability and development issues.

Paddy Coulter is a consultant in international media currently working for Oxford Poverty & Human Development Initiative (OPHI) within Oxford University’s Department of International Development. He is a Fellow of Green Templeton College, working on communications for the college’s Emerging Markets Symposium. He was an Oxfam representative in Yemen in the early 1970s, Oxfam GB head of communications for five years in the mid-‘80s and subsequently an Oxfam trustee in the ‘90s. He chairs Article 19, the international human rights organisation protecting media and information freedoms.

Chris Dammers was Oxfam's Field Director for the Middle East, based in Cairo, from 1979 to 1983, and then Field Director for Southern Africa from 1984 to 1988. Since 1989 he has worked as a consultant on overseas aid, with a focus on conflict resolution and human rights.  In recent years he has been a frequent visitor to Palestine.

David McDowall studied Islamic History (BA) and Modern Middle East Studies (M.Litt); worked for UNRWA and Oxfam in the region. Publications include: Lebanon: a conflict of minorities (MRG, 1984); Palestine and Israel: the uprising and beyond (IBTauris, 1989); Europe and the Arabs: Discord or Symbiosis? (Chatham House, 1992); A Modern History of the Kurds (IBTauris, 1995); Christian Aid: Losing Ground: Israel, poverty and the Palestinians (2003); ‘Clarity or Ambiguity? The withdrawal clause of Resolution 242’, International Affairs, 90:6, Nov 2014  https://www.chathamhouse.org/publication/ia/clarity-or-ambiguity-withdrawal-clause-un-security-council-resolution-242 ; and ‘The two-state solution: what Europe must do and why’, Open Democracy, 23 Nov 2016,  https://www.opendemocracy.net/david-mcdowall/two-state-solution-what-europe-must-do-and-why ; some of the argument of this submission has appeared in a different and significantly longer form in the two articles named above.