Jeff Halper on IHL and human rights in the OPT

by Joseph Markus

Israel/Palestine represents one of those rare scenarios where the legal and moral merits of the case are one and the same.

As Jeff Halper put it, at a talk he gave on Tuesday 24 April: without raising the question of international law the Palestinian cause cannot raise a compelling platform. Any consequent negotiations—because you don’t negotiate with legal rights (and wrongs)—collapses into power politics.

The solution to the Israel/Palestine question, at least from the perspective of the Palestinian side, can only really be located through the law. The law, in this connection, supplies the movement with a form of power that can be used either as a means or as an end.

Mr. Halper’s complaint was that the Palestinians have not made sufficiently effective use of the law.

Every attempted engagement has been brushed off by Israel as a slur, as false, or as ideologically motivated. One of these has tended to form the stock response of Israel to, for instance, critical reports of the UN Human Rights Council or the (somewhat left-wing) UN Special Rapporteur on the OPT, Professor Richard Falk.

Israel has denied that the fourth Geneva Convention (‘GC IV’) applies to the OPT on various bases. Over the years the rationale has subtly changed. First it was suggested that this was not an occupation—occupation allegedly requiring one sovereign state to conquer another—for the reason that there was no sovereignty in Palestine. The territories were labelled the ‘disputed territories’ for the purposes of the Oslo process and were known, by Israel, as an ‘administered territory’. Later, the Israeli Supreme Court suggested that the occupation had been so long in duration that it constituted a form of ‘protracted occupation’, a concept not obviously covered by GC IV and unknown to international law.

It’s worth remembering, of course, that this reading of international law is expressly contrary to the views of the International Court of Justice which, in it’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, determined that GC IV did apply to the OPT and that the relationship between Israel-Palestine was one of occupation. It was for that reason that the Court found the ‘separation barrier’—the Wall—as well as the numerous Israeli settlements within the OPT to be illegal constructions.

Other examples of attempted engagement with the law are exemplified by the attempted referral to the ICC which met with a rejection decision from the Office of the Prosecutor on the basis that the OPT did not constitute a state (here the Prosecutor relied heavily on the fact that the OPT does not enjoy UN membership). Similarly the Palestinian Authority’s application for admission to the UN met with significant resistance from certain members of the Security Council.

An obvious difficulty is the lack of effective enforcement measures in the international law arena. International law is largely toothless. Its efficacy, then, can turn largely on the politics of action or inaction. In this connection the clear support of various states for ‘negotiation’—in other words, talks in which law plays little or no part—demonstrates that illegal conduct will not necessarily be penalised.

Another problem is the popular perception that international law somehow isn’t quite the same as domestic law. This leads to the linked, and incorrect, proposition that domestic law is more important than—or overrides—international law. This is a frequently significant consideration in ‘dualist’ states, such as the UK and Israel. The Israeli courts, for example, are not permitted to consider the demands of international law in coming to decisions. The idea is almost that the internal law of a country can exist in complete isolation from the technically hierarchically superior international laws that bind it and every other state.

Lastly is the difficulty of the indeterminacy of international law. This is a point picked up by Martti Koskenniemi in his path-breaking monograph From Apology to Utopia. There he highlighted the primary virtue of (international) law—something that lends to it an aura of power and durability—as being its formalistic character. At the same time he considered that the structure of international law is such that it is conceptually and semantically indeterminate: that, when making legal arguments and decisions, non-legal elements can invade the process. His thesis goes on to suggest that, for law to retain its valuable formalist character, those non-legal elements must remain unstated. This places a difficult burden on legal professionals not to fall into one of the two traps either of presuming utopia or of embracing apology. A corollary of this point is the ease with which arguments about what is international law can be skewed to suit the interests of the one side or the other. The practical effect of this can be seen in the Israeli response to the ICJ Wall Advisory Opinion. That decision ostensibly settled the state of the law on the point at issue but it did not stop Israel continuing to contest the interpretation rendered by the Court.

Law, then, for the Palestinians has not so far been terribly effective. But law has many uses within the context of ongoing social movements.

Strategic litigation is one avenue. This has less traction in this connection as the Israeli Supreme Court is not competent to determine international law questions and there are few, if any, international tribunals open to the Palestinians. There is no standing tribunal established under the Geneva Conventions and, while Israel is a party to the International Covenant on Civil and Political Rights, it has not accepted the jurisdiction of the Human Rights Committee to consider individual communications under Article 41. The main exception is the ICJ which deals with inter-state matters—and which would be likely to remain exclusive of the OPT until it joins the UN.

Another is the proposition that states and international organisations can pass laws, or sanctions, intended to place political-economic pressure on Israel. This, most recently, has been placed in frame through EU reports concerned to discourage “financial transactions in support of settlement activity”.

But what most exercised Mr. Halper was Robert Drinan’s idea of The Mobilization of Shame. Accepting this idea entails the recognition that traditional uses of the law—in courts and through enforcement measures—are either inadequate in themselves or sufficient only to take the movement some of the way towards its goals.

Human rights is a hegemonic language within international law. The concept now has reached a critical mass within mass movements, civil society, and governance structures. Utilising these laws in a political and campaigning way recognises that the problem of the OPT is not one that can be resolved through straightforward legal power. The idea of international legal power is almost a contradiction in terms. The point of Jeff Halper’s talk to us—to lawyers, academics and students—was to place in our minds a number of highly visceral images and statistics. He used facts on the ground, bundled up with the ethico-legal claims supplied by international law, to present a compelling case. His is a campaign not to win cases but—however clichéd—to win hearts and minds.

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