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RUSSELL TRIBUNAL ON PALESTINE

Fourth International Session – New York, 6-8 October 2012

‘US Complicity and UN failings in Dealing with Israel’s Violations of International Law Towards the Palestinian People’

Introduction

The New York session of the Tribunal was organised by:

The International Organising Committee (IOC): Ken Coates (†), Pierre Galand, Stéphane Hessel, Marcel-Francis Kahn, Robert Kissous, François Maspero, Paulette Pierson-Mathy, Bernard Ravenel, Brahim Senouci, Gianni Tognoni, and the Committee’s International Secretariat: Frank Barat and Virginie Vanhaeverbeke.

The Algerian, Belgian, British, Catalan, Chilean, Danish, DRC, Dutch, French, German, Indian, Italian, Irish, Israeli/Palestinian, Luxembourger, Portuguese, Spanish, South African, and Swiss support committees.

The US Support Committee

The International Organising Committee wishes to thank all the individuals, organisations and foundations that facilitated the convening of the fourth session of the Russell Tribunal on Palestine.

The findings of the jury following the New York session of the Russell Tribunal on Palestine are set out below.

The jury of the Russell Tribunal on Palestine (here and after “the RToP”) consists of the following individuals:

• Stéphane Hessel, Ambassadeur de France, Honorary President of the RToP, one of the original drafters of the Universal Declaration of Human Rights, France.
• Mairead Corrigan Maguire, Nobel Peace Laureate 1976, Northern Ireland.
• John Dugard, Professor of International Law, former UN Special Rapporteur on Human Rights in the Palestinian Territories, South Africa.
• Lord Anthony Gifford QC, UK barrister and Jamaican attorney-at-law.
• Gisèle Halimi, lawyer, former Ambassador to UNESCO, France.
• Ronald Kasrils, writer and activist, former government minister, South Africa.
• Michael Mansfield QC, UK barrister, President of the Haldane Society of Socialist Lawyers, United Kingdom.

• José Antonio Martin Pallin, emeritus judge, Chamber II, Supreme Court, Spain.
• Cynthia McKinney, former member of the US Congress and 2008 presidential candidate, Green Party, USA.
• Alberto San Juan, actor, Spain.
• Aminata Traoré, author and former Minister of Culture, Mali.

• Alice Walker, poet and writer, USA.
• Roger Waters, songwriter, bass guitar player, vocalist and founding member of the band Pink Floyd, UK.
• Miguel Angel Estrella, pianist and Ambassador to UNESCO, Argentina.
• Angela Davis, political activist, scholar and author, USA.
• Dennis Banks, leader, teacher, lecturer, activist and author, USA.

Meeting in New York from 6 to 8 October 2012, the jury of the RToP was composed    of the following members: 

• Stéphane Hessel, Ambassadeur of France, former diplomat, France.
• Mairead Corrigan Maguire, Nobel Peace Prize Laureate, 1976, Northern Ireland.
• Ronald Kasrils, writer and activist, South Africa.
• Michael Mansfield, barrister, President of the Haldane Society of Socialist Lawyers,
• UK.
• Cynthia McKinney, former member of the US Congress, USA.
• Alice Walker, author and activist, USA.

• John Dugard, Professor of International Law, former UN Special Rapporteur on Human Rights in the Palestinian Territories, South Africa.
• Miguel Angel Estrella, pianist and Ambassador to UNESCO, Argentina.
• Angela Davis political activist, scholar and author, USA.
• Dennis Banks, leader, teacher, lecturer, activist and author, USA.
• Roger Waters, songwriter, bass guitar player, vocalist and founding member of the band Pink Floyd, UK

The jury adopted these conclusions, covering the following points:

-      Establishment of the Tribunal (I)

-      Mandate of the Tribunal (II)

-      Procedure (III)

-      Admissibility (IV)

-      Merits (V)

-      Conclusions (VI)

-      Continuation of the Proceedings (VII)

I.         ESTABLISHMENT OF THE TRIBUNAL

1.1. The Russell Tribunal on Palestine is an international citizen-based Tribunal of conscience created in response to the demands of civil society. These past years, noting the failure to implement the Advisory Opinion of 9 July 2004 of the International Court of Justice concerning the construction of a wall in the Occupied Palestinian Territory, noting the failure to implement resolution ES-10/15 confirming the International Court’s Opinion, adopted by the United Nations General Assembly on 20 July 2004, following the Israeli attack on Gaza in December 2008–January 2009, national support committees have been created in different countries around the world to promote and sustain a citizen’s initiative in support of the inalienable rights of the Palestinian people.

1.2. The Russell Tribunal on Palestine is imbued with the same spirit, and espouses the same rigorous rules as those inherited from the Tribunal on Vietnam (1966–1967), which was established by the eminent scholar and philosopher Bertrand Russell, and the second Russell Tribunal on Latin America (1974–1976), organised by the Lelio Basso International Foundation for the Rights and Liberation of Peoples.

1.3. Supporters of the Russell Tribunal on Palestine include Nobel Prize laureates, a former United Nations Secretary-General, a former United Nations Under-Secretary-General, two former heads of state, other persons who held high political office and many representatives of civil society, writers, journalists, poets, actors, film directors, scientists, professors, lawyers, and judges.

1.4. Public international law constitutes the legal frame of reference of the Russell Tribunal on Palestine.

1.5. The Tribunal proceedings will comprise a number of sessions. The Tribunal held its first session on 1, 2 and 3 March 2010 in Barcelona. The second international session was held in London from 20 to 22 November 2010. The third international session of the RToP took place in South Africa from 5 to 7 November 2011. The fourth international session was held in New York from 6 to 8 October 2012.

II. THE MANDATE OF THE RUSSELL TRIBUNAL ON PALESTINE IN NEW YORK

2.1 The Tribunal takes it as an established fact that some aspects of Israel’s behaviour have already been characterized as violations of international law by a number of international bodies, including the Security Council, the General Assembly and the International Court of Justice (see paragraph 19 of the Barcelona findings).

These facts are widely known: according to international jurisprudence, they should not be judicially proven [1]. Two questions are submitted to the RToP by the International Organising Committee at this session:

-    by failing to adopt more concrete measures to fight the violations of international law committed by Israel against the Palestinian people, do the US and the UN commit an internationally wrongful act involving international responsibility?

-    can the policies and practices of Israel against the Palestinian people be described as “sociocide”?

2.2 If yes, what are the practical implications of these findings and what action should there be given them?

III.      PROCEDURE

3.1 The Organising Committee submitted the aforementioned questions to experts who had been selected on the basis of their familiarity with the facts of the situation and their competences in law, political sciences and social sciences.

With a view to respecting the adversarial principle, the questions were also submitted to the United Nations, the United States and Israel by letters. They did not reply to the letters sent.

The Tribunal regrets that the USA, UN and Israel have proved reticent in presenting their arguments concerning the issues that are addressed at this session, and that the Tribunal was unable to benefit from the assistance that their arguments and supporting evidence might have provided.

The experts submitted written reports to the Tribunal.

3.2 The written stage of proceedings was followed by an oral stage during which members of the Tribunal heard statements by 28 experts and witnesses introduced by the Organising Committee. The experts and witnesses were:

Ilan Pappé, historian and activist, Israel.

Peter Hansen, diplomat, Denmark.

Ben White, freelance journalist, writer, and activist, specializing in Palestine/Israel, UK.

Huwaida Arraf, lawyer and human rights advocate, Palestine.

John Quigley, President’s Club Professor in Law at the Ohio State University, USA.

Vera Gowlland-Debbas, Professor Emeritus, Graduate Institute of International and Development Studies, Geneva (since 2009), and Honorary Visiting Professor, University College London (since 2003), Switzerland.

Susan Akram, professor in the Boston University Law’s Clinical Program, USA.

Raji Sourani, founder and director of the Palestinian Centre for Human Rights, a trusted source for those seeking information on human rights abuses within the Palestinian territories, especially within the Gaza Strip, Palestine.

Diana Buttu, lawyer and former spokesperson with the Palestine Liberation Organization, Palestine.

Katherine Gallagher, senior staff attorney at the Centre for Constitutional Rights (CCR), USA.

Noam Chomsky, political theorist, activist, and Institute Professor of Linguistics at the Massachusetts Institute of Technology, USA.

David Wildman, Executive Secretary for Human Rights and Racial Justice with the United Methodist Church’s General Board of Global Ministries, USA.

Phyllis Bennis, Director of the New Internationalism Project at the Institute for Policy Studies and fellow of the Transnational Institute in Amsterdam, USA.

Gianfranco Fattorini, member of the executive board and permanent representative at the UN of the Press Emblem Campaign, an international journalists’ NGO advocating for the adoption of an international convention for the protection of journalists in armed conflicts, Switzerland.

Gustave Massiah, engineer and economist, former professor at the Architectural School of Paris-La Villette, a member of the International Council of the World Social Forum (representative of CRID) and the former vice-president of Attac-France, France.

Johan Galtung, founder of the academic discipline of peace studies, Norway.

William A. Schabas, professor of international law at Middlesex University, London, professor of international criminal law and human rights at Leiden University, professor of human rights law at the National University of Ireland Galway, chairman of the Irish Centre for Human Rights, and visiting professor at the Paris School of International Affairs (Sciences-Po), Canada.

Russell Means, American-Indian activist, author and professor, USA, replaced by Ward Churchill (via Skype).

Saleh Hamayel, member of the Palestinian national movement since 1968, Palestine.

3.4 This final report, which includes the executive summary of the findings read during the New York press conference, also takes into consideration events that took place after the end of the New York session. Such appear in G: The ways forward.

3.5 The procedure followed by the Tribunal is neither that of the International Court of Justice, nor that of a domestic or international criminal court, but is based on the methodology applicable by any judicial body in terms of the independence and impartiality of its members.

IV.      ADMISSIBILITY

4.1 When considering the relations of the United States and the United Nations with Israel, the Tribunal will rule on a number of alleged violations of international law by Israel. Israel’s absence from the present proceedings is not an impediment to the admissibility of the expert reports on the violations. In passing judgment on violations of international law allegedly committed by a state that is not represented before the Tribunal, the Tribunal is not breaching the rule of mutual agreement among the parties that is applicable before international judicial bodies responsible for the settlement of disputes between states [2]. The work of this body is not comparable to that involved in a dispute referred, for instance, to the International Court of Justice: the facts presented as violations of international law committed by Israel in the Occupied Palestinian Territories have been characterized as such by the United Nations General Assembly and the Security Council, and also by a number of reports such as those of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. They will be recalled below (infra §§ 5.11 ff.).

V.        THE MERITS

5. The Tribunal will examine successively:

-  the history of the relations of the UN with Israel (A.);

-  the primary rules of international law violated by Israel (B.)

-  the assistance of the US in the violations of international law by Israel (C.);

-  the secondary rules of international law concerning these internationally wrongful acts:

-  the responsibility of the UN for not preventing internationally wrongful acts committed by Israel D.);

- the responsibility of the US for their assistance in internationally wrongful acts committed by Israel E.);

- the existence of a “sociocide” and its legal implications (F.);

the ways forward (G.).

A.        History of the UN relations with Israel

5.1 The Tribunal emphasizes that the UN’s involvement in the Palestinian Israeli conflict has been extensive, yet ineffective, since the creation of Israel in the aftermath of the 1947 partition plan. The UN’s involvement stems from its obligations under Art. 77 of the UN Charter, establishment of the United Nations Special Committee on Palestine (UNSCOP) that recommended partition, and breaches of the UN charter by Israel’s statehood declaration and the expulsion of hundreds of thousands of Palestinian refugees [3]. Furthermore, Art. 1 of the UN Charter establishes that one of the major purposes of the organisation is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace” [4]. Though the UN has numerous bodies either completely dedicated to the Palestinian question, such as the United Nations Relief and Works Agency focusing on Palestinian refugees (UNRWA) [5] and the United Nations Development Programme/Programme of Assistance to the Palestinian People (UNDP) [6], or UN bodies with a special division focused on Palestine such as the establishment of The United Nations Office for the Coordination of Humanitarian Affairs (OCHA-OPT) field office in 2000 in the Occupied Palestinian Territories (hereinafter “OPT”) [7], or the Human Rights Council and its numerous reports on the plight of the Palestinians [8], the Tribunal concludes that after sixty-five years, these bodies, reports and resolutions have failed at halting Israeli war crimes and Palestinian suffering and human rights violations [9].

5.2 Prior to the formation of the Israeli state, Palestine was occupied by Britain and subject to the British Mandate that incorporated the Balfour Declaration of 1917, which expressed support for the establishment in Palestine of a national home for the Jewish people. Palestine was a former Ottoman territory placed under the League of Nations administration in 1922. Large scale Jewish migration to historic Palestine took place between 1922 to 1947. The local Palestinian population, then under British occupation, began calling for independence, and their resistance to the migrations led to rebellions in 1929 and 1936-1939 and ensuing violence. Unable to solve the issue, in 1947, Great Britain turned the issue of Palestine over to the UN [10].

5.3 Without consulting the indigenous Palestinian population, the UN passed Resolution 181 in 1947, proposing a partition of historic Palestine into two independent states, one for the indigenous Palestinian Arab population and the other for the Jewish migrants, with Jerusalem carved out as a special internationalized city that was to be shared between the two newly created states [11].  Israel declared independence in 1948, and captured more territory than allotted in the partition plan under Resolution 181 in the resulting war with the Arab neighbouring states, including the majority of Jerusalem. Over half of the indigenous Palestinian population was expelled.  The Palestinian state never materialized, and Jordan and Egypt occupied the remaining parts of Palestine. On December 11, 1948, the General Assembly passed Resolution 194, calling for the demilitarization of Jerusalem as soon as possible, creating the United Nations Conciliation Commission on Palestine (UNCCP) with a broad mandate to resolve the conflict and refugee problem, defined the refugee problem and legal formula for resolving it, and resolving that refugees should be permitted to return to their homes [12]. The General Assembly admitted Israel into the UN through Resolution 273 in 1949 [13].

5.4 In 1967, the Six-Day War, also known as the War of 1967, ensued between Israel and its neighbours, after which Israel occupied the Gaza Strip and the West Bank, including East Jerusalem. The Security Council in response passed Resolution 252 in 1968, declaring the Israeli expropriation of and change to legal status of Jerusalem invalid [14]. Numerous other resolutions were subsequently passed repeatedly condemning Israel’s invalid claims over all of Jerusalem and failure to abide by previous resolutions repeating the same condemnation [15] (see infra §§ 5.11 seq.). East Jerusalem was subsequently annexed in 1980, resulting in the UN Security Council Resolutions 465, 476 and 478 condemning the unlawful annexation [16].  The Six­-Day War of 1967 between Israel and its Arab neighbours resulted in another large mass expulsion of Palestinians, about half a million.  The war resulted in the Security Council passing Resolution 242 calling for the Israeli withdrawal from territories occupied in 1967, a just settlement, and termination of all claims or states of belligerency [17]. The General Assembly also passed Resolution 2341 deploring Israel’s lack of compliance with the original call for refugee repatriation in Resolution 194 and the continued refugee crisis [18].

5.5 Hostilities again broke out in 1973, resulting in Security Council Resolution 338 calling for peace negotiations [19]. In 1973, the General Assembly passed Resolution 3376 creating the Committee on the Exercise of the Inalienable Rights of the Palestinian People and granted the Palestine Liberation Organization (PLO) observer status in the Assembly through Resolution 3237 in 1974 [20].

5.6 Over the years, the Security Council issued numerous resolutions condemning Israel’s war crimes and violence against the Palestinians, particularly during the first intifada beginning in 1987 and second intifada beginning in 2000 [21], the massacres of the Palestinian refugee camps Sabra and Shatila in Beirut in 1982 [22], the massacre in Jenin refugee camp in 2002 [23], and Operation Cast Lead in Gaza in 2008-2009 [24].  However, once again, the Tribunal observes that none of these resolutions stopped the violence.

5.7 The Tribunal emphasizes that much of the inability of the UN to take concrete steps to address the Palestinian question, by, for example, issuing formal sanctions against Israel, stems from the veto power of the US as one of the five permanent members of the Security Council [25]. Being the strongest Israeli ally in the UN, the US has vetoed nearly every Security Council resolutions that would condemn Israel’s war crimes and thus blocked the Security Council from using a formal resolution to sanction Israel and punish Israel for its unchecked crimes against the Palestinians [26] (see infra §§ 5.67 seq.).

5.8 At this stage, three important issues must be considered: the refugees (1.), the settlements (2.) et and the two-state solution (3.).

1.         Refugees

5.9 The Tribunal notes that both the General Assembly and the Security Council have issued countless resolutions calling for the right of return of Palestinian refugees to their original homes [27].  Eighty-five percent of the Palestinian population, between 750,000-800,000 Palestinians, became refugees in 1948 [28].  Adding to the refugee crisis were further expulsions from the 1967 war and Israel’s internal discriminatory policies, creating a current total of 7.1 million persons out of a global population of 10.6 million Palestinians who are now refugees, comprising one of the largest and long-standing refugee populations in the world [29].  UNRWA is the UN body responsible for Palestinian refugees. Despite the existence of UNRWA, established in 1949 (which is held as the exclusive provider for Palestinian refugees), as well as the UN High Commissioner for Refugees (UNHCR) established in 1950, the UN 1951 Convention on the Status of Refugees, and the 1954 Convention on the Status of Stateless Persons, the UN has failed to achieve any just settlement of the Palestinian refugees crisis. Israel has continued to expel Palestinians from their homes both inside Israel proper and from the West Bank and Gaza, and refused to allow any of the refugees of 1948 and 1967 to return to their original homes.

2.       Settlements

5.10 The Tribunal notes that the Security Council has issued numerous resolutions condemning the Israeli settlement regime and subsequent land confiscation in Gaza and the West Bank, including East Jerusalem, calling for cessation of all settlement building activity and dismantling of existing ones (further developments infra §§ 5.30 seq., 5.69 seq.).  The Council has also repeatedly declared the settlement regime’s changes to the demographic composition of the Occupied Palestinian Territories null and void.  For example, Resolutions 446 (1979) [30], 452 (1979) [31], 465 (1980) [32], 476 (1980) [33], 478 (1980) [34], 497 (1981) [35], and 904 (1994) [36] represent a larger body of resolutions condemning Israel’s unlawful settlement practices. However, aside from Gaza, whose borders, airspace, trading capabilities and security are still controlled by Israel, the Tribunal emphasizes that Israel, far from complying with these resolutions and ceasing, or dismantling its settlement regime, has expanded it. The most recent example is the Apartheid Wall, which annexes illegal settlements as well as Palestinian land deep in the West Bank. Despite the International Court of Justice’s Advisory Opinion condemning the portions of the Wall that depart from the Green Line (1949 Armistice Line) and into Palestinian territory (with said decision being adopted by the General Assembly via Resolution ES-10/15), Israel has pushed ahead with its construction and with further confiscation of settlement lands [37]. This is despite the fact that the General Assembly in 2007 established the UN Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory by Resolution ES-10/17 [38].

3.         Two -State Solution

5.11 The Tribunal notes that both the General Assembly and the Security Council have issued resolutions affirming a vision of a two-state solution [39]. Although Palestinians have increasingly been mobilizing for a one-state solution – a single democratic state for Israelis and Palestinians – Israel has failed to comply with any of the two-state solution resolutions, by continuing to confiscate Palestinian land and expand settlements. Palestinian President Mahmoud Abbas’s September 2011 application of Palestine for membership in the UN [40], on 31 October 2011, did not succeed. However, despite fierce opposition from the United States and Israel, UNESCO admitted Palestine as a full member [41]. Furthermore, in the aftermath of the RToP’s New York session, on 29 November 2012, the General Assembly of the UN granted Palestine non-member observer Status at the UN [42].

Conclusion

5.12 The Tribunal concludes that the UN has failed to be a meaningful force in support of the Palestinian people’s struggle for self-determination and justice.  At its worst, it has actively aided and abetted the denial of Palestinian self-determination through actions such as Resolution 181. But even at its best, the UN has still failed to stop Israeli settlement expansion, halt the construction of the Apartheid Wall, end discrimination against Palestinian citizens of Israel, prevent war crimes and other violence against Palestinians, or secure the right of return and compensation to the enormous population of Palestinian refugees and their descendants. The UN has not only failed to enforce the major Security Council and General Assembly resolutions on Palestine, but also failed to take effective action in support of the UN’s core charter requirements of respect for equal rights, self-determination, and universal peace. All these points are developed from a legal point of view below.

B. The violations of the primary rules of international law

5.13 As may be seen from the history of UN relations with Israel, the latter has never respected various basic rules of international law: the UN Charter (1.); the principle of self-determination of peoples (2.); international humanitarian law (3.); human rights (4.).

1. 1. The respect for the UN Charter

5.14 At the end of the “Six-Day War” in June 1967, the Security Council adopted various resolutions requiring Israel to withdraw from occupied territories following the war. In Resolution 242 (22 Nov. 1967) (preamble, 2^nd para.), the Council emphasized “the inadmissibility of the acquisition of territory by war”. On this basis, the Security Council:

“1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i)  Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii)  Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”.

The Security Council reaffirmed Resolution 242 several times.[43]

After the war of October 1973 between Israel, on the one hand, and Egypt and Syria, on the other, the Security Council reaffirmed Resolution 242 in Resolution 338 of 24 October 1973, stating that the Council:

“Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council Resolution 242 (1967) in all of its parts.”

Afterwards, the Security Council referred each year to Resolution 338 – and consequently to Resolution 242 cited in Resolution 338 – at least twice a year, and sometimes more frequently.[44] If one adds up the resolutions that have not been applied by Israel, it may be said that Israel has violated the UN Charter about 95 times by failing to comply with any resolution.

5.15 The Jerusalem case also gave rise to the adoption of various resolutions in which the Security Council strongly condemned Israel’s actions aimed at changing the status of Jerusalem.[45] Thus, in Resolution 476 adopted on 30 June 1980, following the decision of the Knesset to annex Jerusalem, the Security Council:

“1. Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem;

2. Strongly deplores the continued refusal of Israel, the occupying power, to comply with the relevant resolutions of the Security Council and the General Assembly”.

In the preamble to Resolution 681 adopted on 20 December 1990 after confrontations in Jerusalem between Palestinians and Israeli forces, the Security Council reaffirmed:

“the obligations of Member States under the United Nations Charter;

[…]the principle of the inadmissibility of the acquisition of territory by war set forth in Security Council resolution 242 (1967)”.

The principle has been reasserted by the Security Council in all resolutions which refer either to Resolution 242 or to Resolution 338 insofar as the latter refers to Resolution 242.[46]

5.16 These resolutions bind UN Member States because, since they are expressed in normative terms, they amount to decisions and, according to Article 25 of the Charter:

“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

5.17 Israel withdrew from the Gaza Strip on 12 September 2005. However, by maintaining control over all air and maritime spaces of the Gaza Strip, Israel prevents the Palestinian Authority from exercising its full sovereignty over the territory and continues to partially occupy the Gaza Strip. As the Special Rapporteur rightly notes in his report on human rights in the Palestinian territories occupied since 1967:

“Moreover, it is not possible to seriously argue, as Israel has attempted to do, that Israel has ceased to occupy Gaza since August 2005, when it withdrew its settlers and the Israel Defense Forces from Gaza. Even before the commencement of ‘Operation Summer Rains’, following the capture of Corporal Gilad Shalit on 25 June 2006, Israel was able to exercise effective control over the Territory by reason of its control of Gaza’s external borders, air space and sea space. Since that date it has exercised its military authority within Gaza by military incursions and shelling, in circumstances which clearly establish occupation” (Doc. ONU A/HRC/4/17, 29 January 2007, § 59).

5.18 Moreover, a part of the Gaza Strip actually remains under Israeli military control because Israel maintains a buffer zone that is at least 300 metres wide all along the border inside the Gaza Strip. It is a no-access zone for the Gaza residents. Anyone who enters the zone is exposed to gunfire from Israel. In some places, the width of this zone is between 600 and 1,500 metres. This prohibition of access deprives Gaza of 35 percent of its arable land. The Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories (hereinafter “Special Enquiry Committee on Israeli Practices”) writes:

“Witnesses and organizations explained that Israel’s ‘buffer zone’ excluded around 35 per cent of Gaza’s land territory from agricultural use. The general view of many Gazans is that this land has essentially been confiscated by Israel, notwithstanding the fact that it is unambiguously within Gaza. While it was noted that Israel had dropped leaflets declaring that areas up to 300 metres from the wall between Gaza and Israel were restricted, that anyone entering those areas was liable to be shot and that such a response was justified since residents had been warned, the Special Committee received information that the area of enforcement actually extends beyond 300 metres, with different interlocutors claiming it reaches anywhere from 600 to 1,500 metres. Witnesses informed the members that the majority of Gaza’s livestock used to be kept in that area; however, 50 per cent of the pens had been destroyed by Israel and could not be repaired since it was unsafe to enter the ‘buffer zone’.” [47]

5.19 Thus, it is clear that Israel only partially withdrew from the Gaza Strip and that it did not withdraw at all from other Palestinian territories including East Jerusalem. It follows that Israel, by maintaining, in different forms, the occupation of Palestinian territories, violates various resolutions of the Security Council and, ipso jure, the UN Charter.

1. 2. The right of peoples to self-determination

5.20 The right of peoples to self-determination has been recognized in the Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES. 1514/XV, 14 Dec. 1960 ; A/RES. 2625/XXV, 24 Oct. 1970, 5th principle) and in the 1966 Covenants relating to economic, social and cultural rights, on the one hand, and civil and political rights, on the other (common Art. 1, para. 1). The UNGA observed that the Declaration applied to the Palestinian people. The General Assembly:

“1. Recognizes that the people of Palestine are entitled to equal rights and self-determination, in accordance with the Charter of the United Nations” (A/RES/2792 D/XXVI, 6 Dec. 1971).

The UNGA refers to this Declaration repeatedly.[48] In 1974, the General Assembly:

“1. Reaffirms the inalienable rights of the Palestinian people in Palestine, including:

(a) The right to self-determination without external interference;

(b) The right to national independence and sovereignty”.

(A/RES. 3236/XXIX/22 Nov. 1974)

Although this resolution is old, the General Assembly mentions it at each session (e.g., A/RES/66/14, 30 Nov. 2011, preamble, 2^nd para).

The ICJ confirmed the right of the Palestinian people to self-determination (Adv. Op., Wall, 9 July 2004, ICJ Rep. 2004, pp. 183 ff., 197, 200, §§ 118, 122, 149, 159) and affirmed that it was an erga omnes right (ibid., pp. 172 and 199, §§ 89 and 155 ff.). The Court concluded that Israel had breached this right, especially by building a separation wall in the Palestinian territory:

“That construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right.” (ibid., p. 184, § 122)

5.21 As a holder of the right to self-determination, the Palestinian people are entitled to use force to exercise this right. In this context, the use of force by the Palestinian people amounts to a national liberation war, the legitimacy of which has been recognized by the UNGA implicitly in resolution 2625 entitled “Declaration concerning Friendly Relations and Cooperation among States”. The Declaration prohibits States from using force in order to deprive peoples of their right to self-determination; furthermore, peoples are entitled to be helped in their self-determination struggle:

“Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.” (A/RES. 2625/XXV, 24 Oct. 1970, 5th principle, 5th para.)

Similarly, Article 7 of the definition of aggression (adopted by consensus in 1974) stipulates:

“Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.” (A/RES. 3314/XXIX, 14 Dec. 1970).

More explicitly, in Resolution 37/43 of 3 December 1982, the General Assembly

“[...] Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”

It follows that, given the right of self-determination, the Palestinian people are entitled to use force to exercise this right, but, conversely, Israel cannot use force to thwart the struggle of the Palestinian people.

5.22 The legitimacy of the armed struggle of the Palestinian people aimed at exercising its right to self-determination does not allow it to breach international humanitarian law (IHL); IHL applies whatever the legitimacy of the fight. This is the rule of equality of belligerents in the law of armed conflicts, a rule stated in the first Additional Protocol (AP) of 1977 to the 1946 Geneva Conventions (GC):

“Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict” (preamble, 5^th para.).

If the struggle of the Palestinian people must comply with the law of armed conflicts, the same rule applies to Israel when it uses force against the Palestinian people contrary to the rule legitimizing national liberation wars. In other words, if Israel fights against the Palestinian people without respecting IHL (as will be seen below), Israel infringes international law twice because it violates jus contra bellum (mentioned above, § 5.17) and jus in bello (see below).

1. 3. International humanitarian law

5.23 The occupation of Palestinian territories by Israel is the result of armed confrontations that took place between Israel and its neighbours: Egypt and Jordan. IHL therefore regulates the situation. In its Advisory Opinion on the Wall, the ICJ implicitly suggests (and states explicitly later in the Opinion, infra § 5.20) that:

“territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

The territories situated between the Green Line (…) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.” [49]

Since it is an occupation that follows an armed conflict, the occupation falls under IHL, which is binding on Israel either as universal customary international law or as treaty law to which Israel is a party, as in the case of the GC ratified by Israel on 6 July 1951.

5.24 Given the armed occupation of the Palestinian territories, these territories fall under the Fourth GC, as repeatedly stated by the Security Council and the General Assembly;[50] for instance the UN Secretary-General has stated that:

“All other High Contracting Parties, as well as the International Committee of the Red Cross, maintain that the Convention does apply de jure to the Occupied Palestinian Territory. ” [51]

In the Wall case, the ICJ explicitly confirms the foregoing:

“In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.”  [52]

5.25 Besides the fact that the occupation violates the resolutions of the Security Council which require an end to the occupation (supra §§ 5.12-5.15), the occupation is associated with specific violations of the international humanitarian law of occupation. Already in 1973, the General Assembly, taking note of the Report of the Special Enquiry Committee on Israeli Practices,[53] listed nine categories of violations of the Fourth GC:

“(a) The annexation of certain parts of the occupied territories;

b)The establishment of Israeli settlements in the occupied territories and the transfer of an alien population thereto;

c)  The destruction and demolition of Arab houses, quarters, villages and towns;

d)  The confiscation and expropriation of Arab property in the occupied territories and all other transactions for the acquisition of land between the Government of Israel, Israeli institutions and Israeli nationals on the one hand, and the inhabitants or institutions of the occupied territories on the other;

(e)  The evacuation, deportation, expulsion, displacement and transfer of the Arab inhabitants of the Arab territories occupied by Israel since 1967, and the denial of their right to return to their homes and property;

(f)  Administrative detention and ill-treatment inflicted on the Arab inhabitants;

(g) The pillaging of archaeological and cultural property in the occupied territories;

(h) The interference with religious freedom, religious practices and family rights and customs;

(i)  The illegal exploitation of the natural wealth resources and population of the occupied territories”.[54]

5.26 To these violations of IHL related to occupation law must be added the violations resulting from military operations carried out by Israel against Palestinians in the occupied territories and neighbouring States.

a.The annexation of some parts of the occupied territories

5.27 East Jerusalem, which was occupied in 1967 after the Six-Day War, has been incorporated into Israel by an act adopted on 30 July 1980. This annexation violates the principle of “the inadmissibility of the acquisition of territory by war” (supra § 5.12) and the obligation of the occupying Power to respect “unless absolutely prevented, the laws in force in the country” (1907 Hague Regulations, Art. 43). The Security Council, being aware of the drafting of this law:

“3. Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention […]”.[55]

After the adoption by the Knesset of the so-called “Jerusalem law” annexing East Jerusalem on 30 July 1980, the Security Council condemned the annexation as follows:

“The Security Council,

Recalling its resolution 476 (1980),

Reaffirming again that the acquisition of territory by force is inadmissible,

[…]

1. 1. Censures in the strongest terms the enactment by Israel of the ‘basic law’ on Jerusalem and the refusal to comply with relevant Security Council resolutions;
2. 2. Affirms that the enactment of the ‘basic law’ by Israel constitutes a violation of international law and does not affect the continued application of the [Fourth GC] in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;
3. Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem and in particular the recent ‘basic law’ on Jerusalem, are null and void and must be rescinded forthwith;

[…]”

5.28 This Tribunal considers that the annexation of Jerusalem violates general international law because the principle of “the inadmissibility of the acquisition of territory by war” flows directly from the prohibition of the use of force in international relations (Charter, Art. 2, § 4), but as the Security Council equates the Israeli annexation law to a violation of the Fourth GC, the Tribunal has classified the annexation among the violations of IHL.

5.29 The establishment of Israeli settlements in parts of the West Bank leads to a dismemberment and a kind of bantustanization of the Palestinian territory[56]. The settlements contribute to the creation of a fait accompli which violates not only the right of the Palestinian people to self-determination (A/RES/1514 (XV), § 6), an erga omnes obligation,[57] but also “the inadmissibility of the acquisition of territory by war”. Furthermore, the settlements policy triggers other gross violations of international law (see below).

b.         The establishment of Israeli settlements in the occupied territories and the transfer in those territories of a foreign population

5.30 The establishment of Israeli settlements in the Occupied Palestinian Territories violates Article 49, paragraph 6, of the Fourth GC which stipulates:

“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

5.31 The policy of Israeli settlements in the Occupied Palestinian Territories has frequently been condemned by the UN organs. In Resolution 446 of 22 March 1979, the Security Council:

“1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity […]” (§ 1).

In this resolution, the Security Council “Calls once more upon Israel, as the occupying power, to abide scrupulously by the 1949 Fourth Geneva Convention” and, “in particular, not to transfer parts of its own civilian population into the occupied Arab territories” (§ 3).

Four months later, the Council reiterated the position adopted in Resolution 446 and called on Israel “to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem” [58].

In 1980, in Resolution 465, the Council described the installation of Israeli settlements as a “flagrant violation” of the Fourth GC [59]. On two subsequent occasions, the Council recalled this resolution.[60]

5.32 The UNGA has proceeded along the same lines every year since 1973 .[61] At its last session, it adopted a resolution on the “Peaceful settlement of the question of Palestine” whereby the General Assembly:

“ […]

Reaffirming the illegality of Israeli actions aimed at changing the status of Jerusalem, including settlement construction and expansion […],

[…]

Reiterating its concern over the negative developments that have continued to occur in the Occupied Palestinian Territory, including East Jerusalem, including the large number of deaths and injuries, mostly among Palestinian civilians, the construction and expansion of settlements […],

[…]

16. Reiterates its demand for the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and calls for the full implementation of the relevant Security Council resolutions;

17. Stresses, in this regard, the need for Israel forthwith to abide by its road-map obligation to freeze all settlement activity, including so-called “natural growth”, and to dismantle settlement outposts erected since March 2001;

[…].”[62]

5.33 The Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 wrote in his recent report to the Human Rights Council:

“Jewish settlements in the West Bank are illegal. They violate article 49, paragraph 6, of the Fourth Geneva Convention and their illegality has been confirmed by the International Court of Justice in its advisory opinion on the Wall. Despite the illegality of settlements and the unanimous condemnation of settlements by the international community, the Government of Israel persists in allowing settlements to grow.”[63]

5.34 While Israel partially withdrew from the Gaza Strip (supra §§ 5.17 ff.) and dismantled its settlements, they persist and are spreading in the West Bank and Jerusalem. The Special Enquiry Committee on Israeli Practices writes in its 2011 report that 2,300 Bedouin would be displaced in Zone C of the Occupied Palestinian Territories. According to the Committee,

“The purpose of the planned relocation of the Bedouins was to make room for the expansion of Israeli settlements.”[64]

5.35 The Israeli settlements in the Occupied Palestinian Territories are not only a violation of IHL; they are also a war crime: Article 147 of the Fourth GC establishes as “grave breaches” various types of behaviour including “unlawful deportation or transfer” of population; this provision criminalizes, in this regard, violations of Article 49 of the Convention which states:

“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The ICRC’s commentary to Article 49 specifies that it

“prevents a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories”.[65]

The establishment of a settlement by an occupying Power is therefore a “war crime”        pursuant to Article 49 in conjunction with Article 147 of the Fourth GC.

5.36 In addition to the Fourth GC, other sources describe as war crimes the establishment of settlements by an occupying power in occupied territory:

-  Article 85, § 4, of the First AP to the 1949 GC stipulates:

“In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol:

(a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention.”

-Article 8, § 2, b, viii, of the ICC Statute equates to a war crime:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

- Article 20, c, of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission (ILC) identified as war crimes:

“Any of the following acts committed wilfully in violation of international humanitarian law:

(i)  The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies; […].”

Israel is not a party to the First AP of 1977 or to the Statute of the ICC, but the ILC Draft Code may be deemed to constitute an expression of customary international law to the extent that the ILC was established in 1947 for the “codification” of international law (ILC Statute, Art. 1, § 1).[66]

5.37 The forced relocation or displacement of Bedouins and Palestinian residents to make way for Israeli settlements is a form of ethnic cleansing and, as such, a crime against humanity. These acts amount to “arbitrary deportation or forcible transfer of population”, which are crimby the ILC in its Draft Code of Crimes against the Peace and Security of Mankind (Art. 18, g);[67]

-   by the ICC Statute (Art. 7, d).

5.38 On the basis of the foregoing, the Tribunal observes that the establishment of settlements in the occupied Palestinian territories not only violates international law; it is also a war crime and, at the same time, a crime against humanity if the settlements lead to arbitrary transfers of Bedouins or Palestinian residents.

c. The destruction and demolition of Arab houses, villages and towns

5.39 According to the Israeli Committee against House Demolitions, 25,908 houses and livelihood-related structures have been demolished in Palestine since 1967.[68]. A recent report by the Special Enquiry Committee on Israeli Practices states that:

“According to information received, 17,684 dunums of land had been confiscated from August 2010 to June 2011 and 893 Palestinian homes had been demolished within that period. A steep rise in demolitions in the first six months of 2011 was underlined.”[69]

These acts of destruction committed for repressive, security-related, administrative or undefined purposes[70] affect the private rights of the victims or Palestinian rights and therefore violate Articles 46 and 55 of the 1907 Hague Regulations which stipulate:

Article 46: “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 55: “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

The Security Council has stressed Israel’s “obligation not to undertake demolition of homes contrary to that law [IHL]”.[71]

5.40 These cases of destruction not founded on real military necessity also constitute war crimes. In this regard, Article 6 of the Nuremberg Tribunal Charter stipulated:

“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

[…]

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour 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; […].”

Similarly, Article 147 of the Fourth GC stipulates:

“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: […]taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

5.41 On the basis of the foregoing, this Tribunal finds that demolitions of houses and livelihood-related structures are violations of IHL and a war crime.

d. The confiscation and expropriation of Arab property in the occupied territory and all other transaction for the acquisition of land between the government of Israel, Israeli institutions and Israeli nationals on the one hand, and the inhabitants or institutions of the occupied territories on the other

5.42 Palestinian land in the occupied territories has been confiscated by Israel for settlements, for military reasons, for social services, or for unspecified reasons. According to the Special Enquiry Committee on Israeli Practices:

“On 23 September 1993, the Land and Water Establishment for Studies and Legal Services revealed that 60,500 dunums of land had been confiscated in the West Bank between December 1991 and August 1993. The Israeli authorities used four main pretexts to justify the confiscation: land considered state land (34,193 dunums of land), for settlement purposes (22,179 dunums), for public welfare (3,580 dunums) and for security and military reasons (531 dunums). In addition, 1,017 dunums of land had been confiscated for “other reasons”. Israeli settlers also carried out construction activities on 300 dunums of land. According to the report, the majority of the land had been confiscated during the first eight months of 1993, that is, 25,891 dunums considered state land. (Al-Tali’ah, 23 September 1993).”[72]

Already in 1968, the Security Council considered that:

“all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status”.[73]

Land expropriation measures have continued,[74] in most cases, to meet the needs of settlements ,[75] for the construction of roads,[76] for the development of Jerusalem,[77] for military or security reasons,[78] or for the exploitation of natural resources:[79] the vivisection of a territory and a people without anaesthetizing the latter. In 1995, the Minister of Foreign Affairs, Shimon Peres, declared, however, that:

“no additional land would be confiscated for the building of settlements and that no government money would be budgeted for new Israeli housing units in the West Bank.”(The Jerusalem Times, 10 mars 1995).[80]

A Norwegian official declared to the Special Enquiry Committee on Israeli Practices:

“Unfortunately, the Israeli authorities have continued to violate Palestinian human rights, through the expansion of confiscation operations in general and the expansion of the settlements, as well as through the building of new roads at the expense of land belonging to Palestinians, and through the uprooting of fruit-yielding trees, thus preventing the Palestinians from utilizing the crops or utilizing the trees.

Furthermore, the Israeli authorities have completely disregarded all the agreements that have been concluded with the Palestinian side and which, again explicitly, provide for putting an end to all new confiscations during the transition period.” [81]

5.43 In its report dated 14 October 1997, the Special Enquiry Committee on Israeli Practices heard testimony by Ms. Lynda Brayer, Director of the Legal Division of the St. Yves Society, a Catholic human rights organization working under the auspices of the Latin Patriarch of Jerusalem,[82] on the issue of land and the concept of “public lands”.

The witness explained that the Israeli authorities did not recognize a title to land that was not registered in the cadastre, which did not exist during the Ottoman period when it was enough for a farmer, according to the Ottoman land code, to prove through a witness that he had cultivated land for 10 years to have his land registered by the tax administration. As it was not a cadastre, the Israeli authorities did not allow this registration as land title. Relying on Ottoman law, they also required the applicant to prove that he had cultivated his land for 10 years, which was impossible when the land in question was located in an area declared military by the military authority and consequently inaccessible to the farmer who had cultivated it formerly.[83]

5.44 With regard to transactions relating to the acquisition of land belonging to the inhabitants of the occupied territories, the Special Enquiry Committee on Israeli Practices reported the following testimony:

“ ‘We, in our household, have seen much of our land confiscated. We have got land here. I was born in Quneitra, in 1966. We have a house here in Quneitra. It is in ruins. After the war, my father went to live with my grandfather. In 1973, we were offered money in exchange for the land. But my father refused. They had opened for him an account with the money in payment for the land in a bank. We did not know about that. It was tantamount to saying that he had sold the land. They let him under the illusion that ‘whether you like or not, this land has become ours now and therefore we have put the money in the bank and it is better for you’. We did not take any notice of the sum of money that they had placed at our disposal in the bank’ (anonymous witness No 25, A/AC.145/RT.701)”.[84]

5.45 In its report dated 14 October 1997, the Special Enquiry Committee on Israeli Practices drew the following conclusions about land confiscations:

“All of the activities cited above require the confiscation of Arab-owned land on a massive scale. Most of it is prime agricultural land including vineyards, olive groves and orchards as well as pastures. It is estimated that some 40,000 dunums of Palestinian-owned land have been confiscated by Israel since the signing of the first peace agreement in September 1993. It is also estimated that approximately 3 million dunums of land amounting to some 74 per cent of the West Bank and 40 per cent of the Gaza Strip have been confiscated by the Israeli authorities since 1967. Land confiscation entails a directly proportionate loss of sources of livelihood for Palestinians […]The Israeli authorities have mostly followed their customary scenario for land expropriation: the area in question is usually first declared a closed military zone and thereby rendered inaccessible to its Palestinian owners; its allocation for settlements, quarries or bypass roads then follows. Alternatively, it may also be proclaimed to constitute a ‘green area’ on which construction is prohibited, as is often the case in East Jerusalem. It was reported that in 1997, by the month of May, 30,000 dunums of Arab-owned land in the West Bank had already been expropriated for the expansion of Israeli settlements.” [85]

5.46 Pursuant to IHL, the confiscations and expropriations carried out by Israel to the detriment of the Palestinians in the occupied territories fall under the same provisions as the demolition of Palestinian homes and livelihood-related structures: they violate Articles 46 and 55 of the Hague Regulations (supra § 5.31) and are war crimes under Article 147 of the Fourth GC (supra § 5.32).

e. The evacuation, deportation, expulsion, displacement and transfer of Arab inhabitants of the Arab territories occupied by Israel since 1967, and the denial of their right to return to their homes and properties

5.47 In 1971, the Security Council

“Confirms in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status” [86].

In 1980, the Security Council recalled Art. 49 of the 4^th GC which prohibits

“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 no.” [87].

Citing this ground, the Council “Calls again upon” Israel

“as the occupying Power, to rescind the illegal measures taken by the Israeli authorities in expelling the Mayors of Hebron and Halhul and the Sharia Judge of Hebron, and to facilitate the immediate return of the expelled Palestinian leaders so that they can resume their functions for which they were elected and appointed” [88].

On 5 January 1988, the Security Council called upon Israel “to refrain from deporting any Palestinian civilians from the occupied territories” [89]. A few days later, the Council,

“Expressing its deep regret that Israel, the occupying Power, has, in defiance of that resolution [res. 607], deported Palestinian civilians

1. Calls upon Israel to rescind the order to deport Palestinian civilians and to ensure the safe and immediate return to the occupied Palestinian territories of those already deported;

2. Requests that Israel desist forthwith from deporting any other Palestinian civilians from the occupied territories” [90].

The Security Council adopted resolutions to the same effect in 1989,[91] 1991[92] and 1992.[93]

5.48 The Tribunal has read the following in the 2011 Report of the Special Enquiry Committee on Israeli Practices:

“The members were briefed on problematic sentencing practices of Israeli courts that judge Palestinian minors […] The Committee was further informed of an increasingly common Israeli practice of expelling Palestinian children from their homes, thereby requiring children to move to another area and live with persons outside their immediate family, or requiring their entire family to move”.[94]

5.49 Expulsions and deportations of Palestinians from the occupied territories fall under the first paragraph of Article 49 of the Fourth GC, which stipulates:

“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.”

Resolutions 607 and 608 of the Security Council (supra § 5.39) are mere applications of the rule. Thus, the expulsion of Palestinian civilians from the occupied territories violates Article 49.

5.50 The right of refugees and expelled persons to return to their homes is provided for in Rule 132 of customary IHL:

“Displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.”

On the occasion of the Georgian conflict, the Security Council, in general terms,

“reaffirm[ed] also the inalienable right of all refugees and internally displaced persons affected by the conflict to return to their homes in secure and dignified conditions, in accordance with international law […]”.[95]

f. Administrative detentions and mistreatments of Arab residents

5.51 In its first report in 1970 the Special Enquiry Committee on Israeli Practices reported numerous allegations of mistreatment suffered by persons residing in Palestine and arrested by the Israeli authorities.[96] To illustrate the treatment in question, the Committee reproduced an excerpt from a report submitted by Arab Red Cross and Red Crescent societies at the 24th International Conference of the Red Cross. We read in the extract concerning Nablus prison:

“A number of detainees have undergone torture during interrogation by the military police. According to the evidence, the torture took the following forms:

1. Suspension of the detainee by the hands and the simultaneous traction of his other members for hours at a time until he loses consciousness.

2. Burns with cigarette stubs.

3. Blows by rods on the genitals.

4. Tying up and blindfolding for days (in one case for seven days).

5. Bites by dogs.

6. Electric shocks at the temples, the mouth, the chest and testicles.”[97]

The Committee found that, given the absence of rebuttal, these claims were credible:

“None of the reports quoted in this publication have been refuted and this, together with the evidence before the Special Committee, leads it to believe that there is, in several prisons, especially in Sarafand Camp, a regular practice of ill-treating inmates.”[98]

Forty years later, the Committee wrote the following about its investigations in 2011:

“The Committee was informed that more than 700 cases concerning allegations of such treatment that had been brought to the attention of the legal adviser to the Israeli Government had resulted in zero investigations. According to this witness, while the Government of Israel had not denied the allegations in 20 per cent of those cases, it was claimed that such treatment was in response to so-called ‘ticking time-bomb’ cases.” [99]

5.52 With regard to the nature of the treatment of detainees, the Committee wrote:

“While general deprivations of food, clothes, books and other basic needs were noted, testimony also consisted of allegations of treatment and conditions that would amount to torture or cruel, inhuman or degrading treatment or punishment. The use of solitary confinement, including for extended periods of time, was highlighted by several witnesses as a common form of punishment. One case brought to the members’ attention concerned the solitary confinement of a prisoner for over nine years. The deeply negative impacts on mental and physical health of this practice were stressed by several interlocutors. Furthermore, the Committee heard allegations of treatment of detainees that involved such practices as deprivation of sleep; beatings, including on the head; insults regarding nationality and family members; denial of ability to observe religious practices; prevention of bathing for periods of up to 30 days; denial of visits from lawyers; being forced to remain in awkward positions for long periods of time; filling cells with insects; naked inspections, including the aggressive grabbing of testicles and attempts to force objects into the anus; and the spilling of hot liquids, including oil. The Committee also heard allegations of an increase in methods of psychological torture, which included threats of suffocation and sexual assault.” [100]

5.53 Such treatment is akin to torture and inhuman and degrading treatment, which are prohibited by common Article 3 of the four GCs of 1949 and Article 32 of the Fourth GC which stipulates:

“The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.”

These facts also constitute grave breaches (war crimes) covered by Art. 147 of the Fourth GC.

5.54 With regard to administrative detention, the Committee wrote in 1970

“The Special Committee received considerable evidence concerning persons in administrative detention. These persons are often detained without intimation of charges for indefinite and prolonged periods. A witness from Israel (A/AC.145/RT.40 and 41) quoted what he described as official Israeli statistics according to which, at the end of May 1970, over 1,200 persons were being detained under administrative orders.” [101]

In 2011, the Committee noted that administrative detention remains a common practice:

“The members received differing information regarding the current number of detainees, with a range from 5,900 to 7,000. They were informed that there were currently 260 children, 36 women, 220 ‘administrative detainees’ and 9 parliamentarians who were retained.” [102]

5.55 The Fourth GC permits the “administrative detention” upon several conditions:

1)    The arrested person is a threat to the security of the occupying Power (Fourth GC, Art. 42);

2)    The decision of internment shall be made by a court or an administrative board created for this purpose by the detaining Power (id., Art. 43);

3)    The administrative board shall provide the necessary guarantees of independence and impartiality [103];

4)    The decision of internment shall be reviewed at least twice a year (id., Art. 43 and 78).

The Supreme Court of Israel has said substantially the same thing.[104] The Special Enquiry Committee on Israeli Practices “remains troubled that Israel continues to detain thousands of Palestinians, many for extended periods of time”.[105] The Tribunal has not been informed of the existence of biannual procedures for reviewing these decisions. It considers, in any case, that any claim that children threaten the safety of Israel to the point that it is necessary to detain 260 children is not credible.

g. The pillaging of archaeological and cultural property in the occupied territories

5.56 The Special Enquiry Committee on Israeli Practices, referring to an article in the Jerusalem Times of 12 February 1995, observed that “the Israeli Antiquities Authority had begun archaeological excavations aimed at uncovering the ruins of the Temple of Solomon, thought to be located under the Al-Aqsa Mosque”.[106] The Committee suggested that these works would contravene a “resolution adopted by UNESCO whereby the entire City of Jerusalem would be considered as a protected area”.[107]

In 1997, the Committee noted:

“the opening in Jerusalem [by the Israeli authorities] for purposes of tourism of the entrance to a 450-metre-long archaeological tunnel connecting the Via Dolorosa to the Western Wall. The tunnel is located beneath the compound of the Al-Aqsa Mosque, the third holiest shrine in Islam.”[108]

At the Human Rights Council, the Working Group on the Universal Periodic Review recommended to Israel in 2009:

“[…] to immediately withdraw all legislative and administrative measures aiming at making the occupied East Jerusalem Jewish, including measures that allow archaeological digging around the Aqsa Mosque […].”[109]

5.57 As the Tribunal did not collect any evidence on this point, it will simply recall that Article 6, § 3, of the UNESCO Convention of 16 November 1972 prohibits any “deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention”.

h. Interference with religious freedom, religious practices and family rights and customs

This point is discussed under fundamental rights and freedoms (infra).

i.  The illegal exploitation of the natural wealth resources and population of the occupied territories

This point is discussed under fundamental rights and freedoms (infra).

j.  The violations of IHL committed during military operations by Israel against the Palestinians in the occupied territories and neighbouring States

5.58 During its first session (Barcelona, 1-3 March 2010), this Tribunal observed that Israel military operations had violated international law,

“by inflicting extensive and serious damage, especially on persons and civilian property, and by using prohibited methods of combat during operation “Cast Lead” in Gaza (December 2008 – January 2009).” [110]

This finding relied on testimonies heard by the Tribunal. The report of the Goldstone Commission adopted a similar approach. Here are some significant excerpts – among others – from the report:

“The Gaza military operations were, according to the Israeli Government, thoroughly and extensively planned. While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.

[…]

The Mission recognizes that the principal focus in the aftermath of military operations will often be on the people who have been killed – more than 1,400 in just three weeks.

[…]

deeds by the Israeli armed forces and words of military and political leaders prior to and during the operations indicate that, as a whole, they were premised on a deliberate policy of disproportionate force aimed not at the not at the enemy but at the ‘supporting infrastructure’. In practice, this appears to have meant the civilian population.” [111]

5.59 During its second session (London, 20-22 November 2010), this Tribunal observed that Israel had conducted a number of military operations by way of reprisals or “self-defence” against the Palestinians. Each of these operations was accompanied by severe losses to the civilian population. Here is a list of the operations[112] identified by the Tribunal that entailed deadly consequences for civilians:

“-  UNICEF reports that Israel’s bombardment of Beirut during its 1982 attack on Lebanon resulted in 29,506 deaths and injuries, of which 1,100 were combatants [113], i.e. a ratio of 1 combatant for every 28 civilian victims …

-    the bombardment of the village of Qana in Lebanon by an Israeli drone on 18 April 1996, which resulted in the death of more 100 civilian refugees in a UNIFIL compound [114] ; according to the Military Adviser to the UNSG, ”It is unlikely that the shelling of the United Nations compound was the result of gross technical and/or procedural errors” [115];

-    according to the Israeli Human Rights Organisation B’Tselem, of the 4908 Palestinians killed by Israeli Security Forces and civilians since the beginning of the second intifada, at least 2187 were civilians;

-    an Israeli missile launched in Gaza on 22 July 2002 against an apartment building, targeting the leader of the Hamas movement, resulted in the death not only of the latter but also of 14 civilians, including 8 children, the youngest of whom was only 2-month-old; in addition, some 150 people were seriously injured [116] ;

-    during the 2006 Israeli attack on Lebanon, an Israeli warplane bombed the village of Qana on 30 July 2006, destroying a residential building and causing the death of 28 civilians, including women, and, according the sources, 16 [117], or 19 children (ICRC source [118]) ; after the attack the Security Council strongly deplore[d] this loss of innocent lives and the killing of civilians in the present conflict” [119] ; According to the UNSG,

‘the attack on Qana should be seen in the broader context of what could, on the basis of preliminary information available to the United Nations, including eyewitness accounts, be a pattern of violations of international law, including international humanitarian law and international human rights law, committed during the course of the current hostilities.’ [120]”

This list is not exhaustive; thus, in April 2002, in response to terrorist attacks and suicide bombings perpetrated by Palestinians against Israeli civilians since September 2000, Israel launched the operation Defensive Shield against towns of Zone A (10% of the West Bank) where, according to the Interim Agreement signed by Israel and the PLO on 13 September 1993, the Palestinians had “complete responsibility for civilian security”.[121] According to the UN Secretary-General, this violence had caused “by 7 May 2002 the deaths of 441 Israelis and 1,539 Palestinians”.[122] As the vast majority of casualties were civilians,[123] the Israeli response was disproportionate, as stressed by the Palestinian Authority and several organizations defending human rights.[124]

5.60 From a legal point of view, attacks against civilians – whether Israeli or Palestinian – violate Article 48 of the First AP to the 1949 GC, which reflects customary IHL as stated by Rule 1 codified by the ICRC:

“the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.

Although these attacks targeted military objectives, the number of collateral civilian casualties led to the finding that the attacks violated the principle of proportionality set out in Rule 14 of Customary IHL:

“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”

5.61 These attacks are not only violations of the basic rules of IHL; they also constitute war crimes under Article 85, § 3, a, of the 1st AP to the GC, and Article 8, § 2, b, i and iv, of the Statute of the ICC. These texts are cited again as an expression of customary international law, since neither Israel nor Palestine is a party to these instruments. The rule is also contained in the ILC draft code (supra § 5.29) of crimes against the peace and security of mankind (Art. 20, b, i and ii).

4.         Fundamental rights and freedoms

a.         The violations of the right to life and security of person

5.62 On various occasions, the Security Council has condemned the excessive use of force by Israel against the Palestinian people. For instance, following incidents in Jerusalem in 2000, the Security Council condemned “acts of violence, especially the excessive use of force against Palestinians, resulting in injury and loss of human life”.[125]

b.  Interference with religious freedom, religious practices and family rights and customs

5.63 The Special Enquiry Committee on Israeli Practices noted the closure of mosques for reasons of military security and the establishment of barriers to access to places of worship or prayer:

-    Christian Palestinians in the occupied territories were unable to celebrate Christmas in Jerusalem (23 December 1993);[126]

-  Palestinian “Muslims aged under 30 (or 40)” were denied access to the Temple Mount to pray during Ramadan (4 and 20 March 1994);[127];

- Israel severely restricted Palestinian Muslims’ access to the Al-Aqsa Mosque and many mosques in the occupied territories (4 and 10 March 1994);[128]

- On several occasions in 1994, settlers denied Muslims access to the Ibrahimi Mosque in Hebron;[129]

-   Further impediments to access to mosques were reported in November 1994.[130]

c. Rights and fundamental freedoms affected by the construction of the wall

5.64 Israel has built a separation wall which, in places, extends deep into the Palestinian territories occupied in 1967. The construction of the wall has created a number of physical barriers affecting the daily lives of Palestinians in the occupied territories and hence their rights and freedoms. In the Wall case, the ICJ stated:

“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.

[…]

The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.”[131]

The construction of the Israeli wall in Palestinian territory has resulted in the violation by Israel of fundamental rights and freedoms such as freedom of movement, and the right to work, health, education and an adequate standard of living, to which one might add the prohibition of forcible transfer of Palestinian people and the illegal detention of Palestinians. As the Tribunal noted at its third session (Cape Town session, 5-7 November 2011), these facts not only violate international law but also, taken together, constitute persecution and thus crimes against humanity by Israel against the Palestinian people.[132]

d.The prohibition of discrimination based on national origin

5.65 At its third session the RTP also observed that “Israeli policies and practices vis-à-vis the Palestinian people” constitute apartheid.[133] The Tribunal found that:

“The Palestinians living under colonial military rule in the Occupied Palestinian Territory are subject to a particularly aggravated form of apartheid. Palestinian citizens of Israel, while entitled to vote, are not part of the Jewish nation as defined by Israeli law and are therefore excluded from the benefits of Jewish nationality and subject to systematic discrimination across the broad spectrum of recognised human rights. Irrespective of such differences, the Tribunal concludes that Israel’s rule over the Palestinian people, wherever they reside, collectively amounts to a single integrated regime of apartheid.”[134]

Conclusion

5.66 For the foregoing reasons, the Tribunal finds that Israel has violated four primary rules of international law:

-  The UN Charter and the secondary legislation established by UN bodies, including Security Council resolutions demanding that Israel withdraw from the occupied Palestinian territories;

- The right of people to self-determination;

-  International humanitarian law;

- Fundamental rights and freedoms.

While it is not useful to quantify the number of violations, since most of them are ongoing violations, the Tribunal observes nevertheless that the continuous nature of these violations aggravates their consequences. In the commentary to Art. 14 of the draft articles on State responsibility, the ILC says: “the breach may be progressively aggravated by the failure to suppress it”.[135]

In addition to the ongoing nature of the violations of international law committed by Israel, the Tribunal wishes to emphasize the qualitative importance of these violations for the following reasons:

- Primacy of the violated rules over other rules; thus, the UN Charter is an instrument that prevails over any other conventional rule in cases of conflict between the obligations of the Charter and another treaty rule. Article 103 of the Charter stipulates:

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

-  The peremptory character of the violated rules (jus cogens), which is the case for two types of norms mentioned above: the right of peoples to self-determination and the basic norms of IHL; thus, the ILC, relying on the jurisprudence of the ICJ, cites as an example of peremptory norms of international law “the basic rules of [IHL]” and “the principle of the right of peoples to self-determination”;[136]

- The international criminal character of the violated rules: three of them are crimes under international law:

• the most serious violations of IHL are war crimes;
• the most serious violations of fundamental rights and freedoms are akin, in certain conditions, to crimes against humanity;
• violations of the prohibition of racial discrimination may, in certain conditions, be characterized as apartheid.

- The special gravity of most of these violations resulting from their “gross or systematic” character; Article 40, § 2, of the draft articles of the ILC on the responsibility of States stipulates:

“A breach of such an obligation [breach by a State of an obligation arising under a peremptory norm of general international law] is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”

In casu, the Tribunal finds it established that violations of international law committed by Israel, are:

• obviously “gross” because of their repetitive nature, and
• “systematic” because of their “intensity” and their “direct”, “organized and deliberate ” character. [137]

C. The assistance of the US in the violations of international law by Israel

5.67 Following World War II, and since then, the United States has demonstrated a commitment to Israel’s establishment and viability as an exclusionary State at the expense of Palestinian human rights. While American Administrations initially expressed that support based on moral sensitivities, since the Six-Day War in 1967, the US has provided unequivocal economic, military, and diplomatic support to Israel for the sake of its proxy war with the USSR in the Middle East and globally.[138] In June 1968, the Johnson Administration, with strong support from Congress, approved the sale of a supersonic aircraft to Israel and effectively established the US precedent of supporting “Israel’s qualitative military edge over its neighbours”.[139] Unconditional US support for Israel continued, however, even after the end of the Cold War in part because of ongoing geo-political strategic interests in the Middle East, and also because of the challenges posed to elected officials by very effective special interest groups.

The US’ unconditional support for an internationally recognized occupying power has made Israel the largest recipient of US foreign aid since 1976 and the largest cumulative recipient since World War II.[140] Israel receives benefits not available to most other countries. The conditions under which Israel can use military aid it receives from the US are far more lenient that those that apply to other States; in fact, Israel is the only State granted unique privileges such as: permission to use US aid to build the Israeli domestic defence industry and purchase Israeli-manufactured equipment; loans with repayment waived; and receiving US aid within the first 30 days of the fiscal year rather than instalments.[141]

5.68 In addition to economic aid, unique US support for Israel is evidenced by diplomatic favour. Between 1972 and 2012, the US has been the lone veto of UN resolutions critical of Israel 43 times.[142] Most recently, in February 2011, the Obama Administration vetoed a UN Security Council Resolution condemning settlement expansion.[143]

According to Israeli scholar, Avi Shlaim, Israel’s consistent violation of the Geneva Conventions is largely attributable to external protection that its special relationship with the US affords.[144] This protection extends to Israel in its behaviour across the Middle East and not just in regard to Palestine or Palestinians. For example, in April 1996, during its “Operation Grapes of Wrath”, Israel shelled a UNIFIL compound in Qana, in southern Lebanon that was providing shelter to hundreds of civilians — the shelling killed 106 civilians. Then UN Secretary-General Boutros Boutros-Ghali initiated an investigation into the bombing and found that though not impossible, it was improbable that the shelling was a result of procedural and/or technical error. Rather than hold Israel to account for its indiscriminate attack on civilians, then US President Bill Clinton, along with Israeli diplomats, pressured the UN to shelve their investigation.[145]

This diplomatic favour has been demonstrated time and again in the halls of Congress. For example, when the International Court of Justice issued its 2004 advisory opinion, Congress overwhelmingly passed a resolution declaring the ruling biased.[146] Most recently on January 9^th, on the 14^th day of the onslaught of Gaza, the House passed H. Res. 34 which declared that Israel had the right to defend itself and condemned Hamas for its indiscriminate rocket attacks onto southern Israel. The resolution passed with only 5 votes against, 22 abstentions, and 390 votes in favor of the resolution.

1. The Settlements

5.69 The tribunal recalled that settlements in the Occupied Palestinian Territory are not only internationally wrongful acts but also war crimes (supra §§ 5.35 seq.). Rather than prohibit Israel’s colonial expansion in Occupied Territory, the US has facilitated it by shielding Israel from diplomatic rebuke and providing it with requisite economic aid. This behaviour contravenes both international law as well as US law.

While American Administrations had been abundantly supportive of Israel, they considered Israeli settlements in the West Bank both illegal and an obstacle to peace and that Israel had no right to preempt Jerusalem’s future by unilateral actions.[147] The Clinton Administration critically shifted that position when it abandoned this hard line stance and accepted that settlements were facts on the ground. [148]

Settlement growth dramatically increased during the Oslo Peace Process. The number of settlers increased from approximately 100,000 settlers in 1991 to nearly 600,000 settlers in 2012. Between 1992 and 1996, the Peace Process’s initial years, the West Bank settler population increased by 39 percent [149]. Only 16 percent was due to natural increase [150]. Additionally, the government constructed a vast network of bypass roads to connect the settlements to one another and to prepare to annex several large settlement blocs.[151]

5.70 In February 2011, the Security Council considered a resolution to veto  Israel’s settlement expansion. The resolution, advanced by rotating members of the UNSC, mirrored the US’s official policy on settlements. Still, the US vetoed the resolution and decried any attempt to resolve the conflict beyond the confines of bilateral negotiations. It thereby affirmed the international community’s exclusion from resolving the Palestinian-Israel conflict.[152] There was precedent for this US veto, including its 1995 veto of a draft resolution that affirmed that land annexed in East Jerusalem is occupied territory and such annexation is illegal under international law and Security Council resolutions,[153] and two vetoes in 1997 of resolutions calling upon Israel to cease building settlements in Jabal Abu Ghneim/Har Homa, East Jerusalem.[154]

5.71 In addition to favourable political support, the US also worked to normalize the settlements, rather than challenge their presence. The United States Agency for International Development (USAID) has allowed Israel to consolidate its control of the West Bank by creating a two-tiered system of roads. USAID has openly acknowledged that all of its West Bank projects in Area C, including road construction, must be carried out through prior coordination with the Government of Israel. In effect, USAID is ‘financing, and thereby further entrenching, the Israeli de facto annexation of the West Bank”[155].

5.72 American loan guarantees to Israel are subject to US domestic law, which prohibits loan guarantees to Israel from financing settlements in the areas occupied in 1967. In the mid-1990s and in 2003, the US reduced its loan guarantees to Israel in response to Israel’s continued settlement building in the West Bank and Gaza Strip; however, these two instances are inconsistent with the US’ overall de facto policy of unconditional loan guarantees to Israel. In January 1992, then-Secretary of State James Baker promised loan guarantees to Israel on the stipulation that it agree to a settlement freeze in the OPT. The Bush Administration offered several compromises, none of which Israel agreed to. Eventually, Bush and Congress approved the loan guarantees. More recently, in October 2012, the Obama Administration agreed to extend its loan guarantees to Israel for another four years.[156] Additionally, the loans are directly transferred from government to government without requiring budgeting information beforehand, leaving no transparency over how the funds are used. The inconsistent approach toward loan guarantees is in violation of domestic US law, thus affirming the US’ direct complicity in the Israeli settlement enterprise.

2.         Gaza Blockade

5.73 US opposition on the United Nations Security Council has been the foremost obstacle to enforcing international law with regards to the Gaza blockade. The US continues to prevent any resolution that discusses the illegality of the Gaza blockade from passing the Security Council; instead, the blockade is only permitted to be discussed within the terms of Israel and the US’ interests in the region, thus undermining any legal authority that the UNSC would have to pressure Israel.

1. Refugees

5.74 The US played a direct role in shrinking the United Nations Conciliation Commission for Palestine (UNCCP), the UN’s first agency dedicated to Palestinian refugees and their rights under international law. In the 1950s, the UNCCP suspended its efforts to seek compensation for refugees, and was later absorbed into the United Nations Works and Relief Agency (UNWRA).

5.75 Since 1973, the US State Department’s Migration and Refugee Assistance Fund (MRA) has given grants to the State of Israel for the purposes of “refugees resettling in Israel.” The intended recipients of these funds are Jewish immigrants, refugee and non-refugee alike, mainly from the former Soviet Union and Ethiopia; Palestinian refugees are not included. Congress earmarks the funds for this program.[157]

5.76 Although the US is the largest financial contributor to UNRWA, its Congress has launched the most significant attacks against the Refugee Agency. The US Senate Appropriations Committee approved Senator Mark Kirk’s amendment to H.R. 5857 Department of State, Foreign Operations, and Related Programs Act, 201, which seeks to redefine the status of Palestinian refugees as simply those who fled historic Palestine in 1948, thus excluding their descendants of refugee status in any final status agreement. In the short term, this would be used to promote the US defunding programs for Palestinian refugees sponsored by UNWRA. Had  it been successful, the new definition would have severely truncated the Palestinian population from nearly 7 million to 30,000 persons.

5.77 Currently, American lawmakers are sponsoring a bipartisan Congressional bill that would require discussion of Jewish refugees from Arab States in any peace talks surrounding Palestinian refugees.

1. US military aid and weapons sales

5.78 Israel is the largest recipient of US foreign aid. U.S foreign assistance to Israel (economic and military) has been part of US policy for decades. Since 1949, Israel has received roughly $115 billion in combined aid; however, economic aid has been gradually phased out in recent years, and military aid has increased.

The conditions under which Israel can use military aid it receives from the US are far more lenient that those that apply to other States; in fact, Israel is the only State granted unique privileges such as:

-      Israel is the only country that can make military purchases from its own defence manufacturers; Israel currently makes approximately 26.3% of its military purchases from Israeli manufacturers.

-      Israel can use military assistance for research and development. Israel is now ranked as one of the top ten suppliers of arms worldwide, with exports between 2003-2010 totalling $12 billion.

-      All assistance to Israel is delivered in the first 30 days of the fiscal year; most countries receive aid in instalments. Military assistance to Israel is transferred into an interest bearing account with the Federal Reserve Bank. Israel is barred from using accrued interest for defence procurement in Israel.

Nearly 75% of Israel’s foreign military financing (FMF) funds are used to purchase US-manufactured defence equipment. By law, Congress must oversee all purchase agreements, and the Department of Defence Defence Security Cooperation Agency (DSCA) must manage all US arms sales to Israel. Therefore, full knowledge of US military equipment and arms sales to Israel exists at the executive and legislative branches.

5.79 Laws that are normally enforced for other States receiving US military aid, such as the Arms Export Control Act (AECA) and the Foreign Assistance Act, are not nearly as strictly implemented with regards to Israel. In fact, some legislation is specifically tailored to provide additional leeway for US aid to Israel. Public L. 110-429 (Oct. 15, 2008) mandates that the US president preserve Israel’s “Qualitative Military Edge” (QME). Additionally, the AECA, 22 USC. § 2776 (h), was amended in 2008 to ensure Israel’s QME over other States in the Middle East receiving US military aid.

5.80 There have been instances in which the US has attempted to restrict aid in response to Israel’s “improper” use of American military equipment in violation of the 1952 Mutual Defence Assistance Agreement. One notable example is the Reagan Administration’s decision to halt the export of cluster bombs to Israel from 1982-1988 in response to their usage against civilians in Lebanon. The issue resurfaced after Israel’s 2006 bombardment of Lebanon, during which cluster bombs were used again on civilians. Ultimately, the Bush Administration did not implement a ban on cluster bomb exports, thus failing to remain consistent with the position taken by previous administrations.[158]

The 2012 Consolidated Appropriations Act contains a new provision in the Foreign Military Financing program stating that the State Department must submit a report to the Committees on Appropriations on the misuse of crowd control items, such as tear gas, exported abroad. Specifically, the report must indicate the extent to which the Secretary of State has “credible information [on crowd control items that] have repeatedly used excessive force to repress peaceful, lawful, and organized dissent.”[159] Despite the extensive documentation of Israel’s usage of these substances to injure and harm civilians, the State Department has not further investigated Israel’s mishandling.

5.81 Bulldozers manufactured by Caterpillar, Inc. are a notable type of military equipment Israel that receives from the US Although the US government claims that the provision of Caterpillar products to Israel do not violate existing legislation on arms sales, extensive documentation links their usage by the Israeli army to the deaths of Palestinians, as well as American citizens. In Corrie vs. Caterpillar, a lawsuit filed to seek redress for Rachel Corrie, an American citizen crushed by a Caterpillar bulldozer in Gaza, Caterpillar argued that the Department of Defence approved the “consistency” of their products under the AECA and other FMF agreements, thus absolving the company of any responsibility.[160]

5. Impunity & accountability

5.82 In 2004, HR 713 was passed to condemn the International Court of Justice’s ruling on the illegality of Israel’s Separation Wall in the West Bank. The resolution rebukes what is claimed to “infringe upon Israel’s right to self-defence” and serve as an “exploitation of the ICJ’s advisory judgment for political purposes.”

5.83 In April 2012, the Office of the ICC Prosecutor rejected a Palestinian petition to initiate investigations about Israeli war crimes in the Gaza Strip during Operation Cast Lead. The Prosecutor contended that Palestine was not a State since

“it is for the relevant bodies at the UN or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1).” [161]

The ICC Prosecutor’s swift rejection of Palestine’s petition is partly attributed to significant US pressure upon the ICC.[162]

5.84 Numerous House resolutions and Senate bills were passed to denounce the United Nations Fact Finding Mission on the Gaza Conflict, also known as the Goldstone Report. Some, such as HR 232, call on the US government to officially condemn and “take steps to reverse the damage done by the Goldstone Report”. Other pieces of legislation propose a more aggressive approach; Senate Resolution 138 calls on the United Nations to “rescind the Goldstone report,” while HR 1501 calls on the US to “withhold contributions to the United Nations until the United Nations formally retracts the final report of the ‘United Nations Fact Finding Mission on the Gaza Conflict’ ”. In effect, US opposition to the Goldstone Report has prevented meaningful accountability for the crimes committed against Gaza during the 2008/09 Winter Offensive.

5.85 The US serves as one of five permanent members on the United Nations Security Council (UNSC). The US consistently uses the veto power it enjoys as a permanent member, as well as the lack of remedy to challenge a veto, to safeguard Israel from UNSC resolutions that are critical of Israel. Between 1972 and 2012, the US vetoed 43 resolutions critical of Israel, particularly with regards to its conduct in the Occupied Palestinian Territories; this amounts to over 70% of the US’ total veto usage. Among the resolutions involving Israel that the US has vetoed are numerous resolutions:

(a)   calling for self-determination for the Palestinians;

(b)   related to Israeli attacks on Lebanese civilians and the Israeli invasion of, and subsequent occupation of parts of, Lebanon (late 1970s/early 1980s);

(c)   beginning in 1976, related to the building of Israeli settlements in the Occupied Palestinian Territory;

(d)  beginning in 1978, condemning the Israeli human rights record in the Occupied Palestinian Territory; (e) calling for Israel to protect Muslim holy places;

(f)   to include Palestinian women in the U.N. Conference on Women;

(g)   to send U.N. observers or monitors to the West Bank and the Gaza Strip.[163]

In the last decade, the United States has vetoed, otherwise blocked, or delayed resolutions

-       condemning the killing of a U.N. worker and the destruction of a World Food Programme warehouse:[164]

-       condemning the building of the wall on Palestinian land [165];

-       and condemning incursions into Gaza, including in 2009 during “Operation Cast Lead”[166].

5.86 The most recent draft resolution vetoed by the US was the February 2011 resolution calling upon Israel to end its illegal settlements in the Occupied West Bank and East Jerusalem as per the Fourth Geneva Convention. American ambassador to the UN Susan Rice justified the veto due to the US’ preference to work within the framework of direct negotiations and the US-led peace process. Scott McClellan, the White House spokesperson at the time explained, “We do not believe that that’s the appropriate forum to resolve what is a political issue.”

5.87 In response to the Palestinian bid for statehood, the US threatened to use its veto power to kill the bid in the UN Security Council.  Instead of doing this the US successfully lobbied other member States of the Security Council to oppose the Palestinian application for admission. As a result the Palestine application for admission to the UN lapsed.

5.88 During Israel’s assault on Gaza in 2008-09, HR 34 was passed, which “recognize[es] Israel’s right to defend itself against attacks from Gaza.”

5.89 Even when the US exerts moderate pressure on Israel, members of Congress are prepared to defend Israeli politicians whose positions run counter to that of the current US administration. In 2012, Vice President Joe Biden visited Israel to call for a freeze on settlement expansion, which Israeli Prime Minister Benjamin Netanyahu rebuffed.[167] In response, scores of Congressional members expressed their opposition to the Obama Administration’s position on settlements in press statements, on the House floor, and open letters.[168]

D.The responsibility of the UN for its failure to act in order to prevent violations of international law committed by Israel

5.90 The Tribunal will not go back over the creation of Israel in 1948 and the amputation of a portion of Palestinian territory to Israel with the UN agreement.[169] Israel is a member State of the UN since 1948 and is recognized today by the majority of members of the Organization and the Palestinian Authority itself. Only some Arab states (Saudi Arabia, Yemen, Syria, Oman, Algeria, Libya, etc.), some Islamic states (Iran, Indonesia), as well as Cuba and North Korea [170] do not recognize Israel which remains nonetheless a legal fact in the eyes of most other states. The existence of the Israeli State is now a reality in accordance with international law.

5.91 However, the current behaviour of Israel vis-à-vis the Palestine violate various basic rules of international law: the UN Charter, the resolutions of the Security Council, the right of peoples to self-determination, IHL, human rights and fundamental freedoms (supra §§ 5.13 ff.). The Tribunal must see now if the UN behaviour itself with regard to the violations of international law committed by Israel constitutes a violation of international law. The Court will therefore examine

-   Whether the violations of international law committed by Israel oblige the UN to act to prevent or stop such violations (1.);

-   If so, how the UN should react (2.);

-  If the UN did not react properly, what are the consequences of this omission? (3.).

1. UN obligations in respect of violations of international law committed by Israel

5.92 The UN is a subject of international law which, like the States is bound by international law. As stated by the ICJ in its opinion on Interpretation of the Agreement WHO-Egypt

“International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.” [171]

If the organization fails to comply with international rules that bind it, the organization incurs international responsibility. Art. 3 of the draft ILC Articles on Responsibility of International Organizations provides:

“Every internationally wrongful act of an international organization entails the international responsibility of the international organization.” [172]

UN obligations in respect of violations of international law committed by Israel are rooted in the UN Charter (a.) and general international law (b.).

a.UN obligations under the Charter

5.93 UN purposes are set out in Article 1 of the UN Charter, which provides:

“The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.”

Among these purposes, the Tribunal notes 3 goals, which are directly related to the case before it:

-    “To maintain international peace and security (Charter, Art. 1, § 1);

-   “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (id., Art. 1, § 2);

- “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (id., Art. 1, § 3).

To achieve these goals, the Charter provides that the UN must “take effective collective measures” and “other appropriate measures to strengthen universal peace” (id., Art. 1, §§ 1-2). In other words, the UN would not fulfil the duties that States have entrusted to the Organization if it was limited, for example, to repeat these goals without taking measures to achieve them. In its opinion on Reparations, the ICJ rightly noted that the UN was not a mere forum for discussion around a common purpose : it was also a mechanism with organs suited to take action :

“The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ (Art. 1, § 4). It has equipped that centre with organs and has given it special tasks.” [173]

These goals induce consequences and obligations that, even if they are not explicitly stated in the Charter, explicitly arise from it. About implied powers given to the UN by the Charter for the protection of its agents, the ICJ said in the above opinion, the United Nations can and must protect them :

« Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.

[…]

Having regard to its purposes and functions already referred to, the Organization may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national State would not be justified in bringing a claim for reparation on the ground of diplomatic protection, or, at any rate would not feel disposed to do so. Both to ensure the efficient and independence performance of these missions and to afford effective support to its agents, the Organization must provide them with adequate protection.” (emphasis added by the Tribunal) [174]

If the goals of the Charter oblige the UN to perform a function – to ensure the protection of functional agents – which, however, does not appear in the purposes of the Charter, a fortiori the UN must act in order to achieve the objectives that the States explicitly set.

b. UN obligations under general international

5.94 The Tribunal found that Israel violated the right of peoples to self-determination, IHL, human rights and fundamental freedoms. Since compliance with these rules is one of the purposes of the UN (Charter, Art. 1), the UN must take the necessary measures to ensure their compliance under the above reasoning (supra § 5.93).

This obligation to act also finds its source in the texts that develop these rules.

5.95 Concerning the right of peoples to self-determination, the preamble of the Declaration on friendly relations states that “the subjection of peoples to alien subjugation, domination and exploitation constitute a major obstacle to the promotion of international peace and security”. [175] Since the maintenance of peace and security is one of the main purposes of the UN (supra § 5.93), the UN are obliged to act to ensure compliance with this purpose.

5.96 Concerning respect for IHL, common Article 1 to the 1949 CG provides that “the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. The rule also appears in Article 1, § 1, of the First AP and in Rule 139 of customary IHL. After recalling that “all the States” Parties to the fourth CG, “are under an obligation while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention”,[176] the ICJ affirms in its opinion on the wall:

“the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.” [177]

The ICJ considers therefore that the UN is, like States, obliged to act to ensure the proper application of IHL.

5.97 For the respect of fundamental rights and freedoms, besides the fact that they are among the purposes of the UN and the UN must act to ensure compliance (supra § 5.93), the preamble of the UDHR states that

“Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms” (emphasis added by the Tribunal) [178].

The UN, therefore, is also obliged to act to ensure respect human rights.

2. The implementing rules of the obligation on UN to ensure respect for law of the Charter and the basic norms of general international law

5.98 The Tribunal has observed that the UN was far from remaining passive against violations of international law committed by Israel. Its organs, in particular the Security Council, the General Assembly and the Council of Human Rights, have instead increased condemnations of Israel since 1967 (supra §§ 5.13 ff.). In doing so, the UN has fulfilled its obligation to act to ensure compliance with the UN Charter and international law relating to the Charter.

The question that the Tribunal must consider is whether these condemnations alone are sufficient to ensure compliance with international obligations of the United Nations.

5.99 As a subject of international law (supra § 5.92), the United Nations is, like the States, bound to perform its international obligations in good faith. The Declaration on Friendly Relations provides:

“Every State has the duty to fulfil in good faith its obligations assumed by it in accordance with the Charter of the United Nations.” [179]

Expressed about the States, the principle applies to international organizations, therefore to the UN as an international organization with legal personality [180]; the UN is an international law subject as other international organizations “bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties”. [181]

The obligation to implement in good faith the international rule requires the recipient of the latter to do everything reasonably within its power to ensure that the rule is properly applied. The ICJ said about the implementation in good faith of a treaty (Vienna Convention on the law of treaties, Art. 26),

“The principle of good faith obliges the Parties to apply it [the treaty] in a reasonable way and in such a manner that its purpose can be realized.” (emphasis added by the Tribunal) [182]

This logical and necessary implication of the rule leads to the conclusion that the United Nations cannot simply denounce and condemn violations of international law committed by Israel to the detriment of the Palestinian people. Since these condemnations repeated many times since 1967 have not resulted in the cessation of the internationally wrongful acts committed by Israel, it follows that the UN must do more. The Security Council is fully aware of this when it says and repeats several times that it will resort to other measures if Israel does not apply its decisions. Thus, when in 1969 Israel annexes East Jerusalem, the Security Council condemned the annexation and calls on Israel to provide information on its intentions regarding the implementation of the resolution in which the Security Council declares that this measure is invalid; the Council states that without Israel’s response, it will consider other measures:

“The Security Council

[…]

6. Requests Israel to inform the Security Council without any further delay of its intentions with regard to the implementation of the provisions of the present resolution ;

7.Determines that, in the event of a negative response or no response from Israel, the Security Council shall reconvene without delay to consider what further actions should be taken in this matter” (emphasis added by the Tribunal) [183]

The Security Council will repeat this commitment [184] and states, in 1980, that all measures taken by Israel

“which have altered the geographic, demographic and historical status of the Holy City of Jerusalem are null and void and must be rescinded in compliance with the relevant resolutions of the Security Council”. [185]

More especially, the Security Council

« Reiterates its determination, in the event of non-compliance by Israel with the present resolution, to examine, practical ways and means in accordance with relevant provisions of the Charter of the UN, to secure the full implementation of the present resolution » (emphasis added by the Tribunal). [186]

Concerning the “practical ways” to implement, the Security Council will do nothing else but to continue to deplore the statutory changes made by Israel in Jerusalem.

“Deplore” (e.g. supra § 5.15), “regret” (e.g. supra § 5.47) or “condemn” (e.g. S/RES/1322, § 2), it is not the “further actions” or “practical ways” announced by the Security Council to enforce its resolutions. By failing to provide the money where its mouth, by not taking measures that the Security Council is considering, the UN does not fulfill in good faith the obligations that the UN Charter and other rules of international law impose to the UN. This widespread omission is an internationally wrongful act which entails the international responsibility of the United Nations.

5.100 The obligation to correctly apply the UN Charter and certain international rules resulting from Article 1 of the Charter also requires the UN, as guardian of peace and security, to fulfil a particular obligation of diligence: the due diligence. The obligation to respect international law and the obligation to ensure respect for basic rules of international law by the UN Member States do not really differ because the due diligence is simply an application of the obligation to respect international law.

However, due diligence refers more specifically to the content of the relationship between a subject of international law and the persons or things that are in his/her custody. The former must ensure that the latter do not cause damage illegally to third parties.

Stated in the Alabama case (1872) about the obligations of the neutral State towards the activities of individuals who are on its territory [187], due diligence has been repeated many times with respect to acts performed not by State organs but by private individuals who are under the jurisdiction of that State. This was the case in environmental matters [188], for suppression of violence resulting from insurgency  [189], with regard to respect for human rights – obligation to investigate, search and prosecute the perpetrators of human rights violations.[190]

5.101 Due diligence is related to not commit grave negligence. It is a common rule in international law and most domestic laws. The ECJ said:

“as provided by many national legal systems, the concept of ‘serious’ negligence can only refer to a patent breach of such a duty of care.” [191]

By not taking concrete measures to compel Israel to respect international law, the Security Council breaches its duty of care.

5.102 The obligation of the UN to take concrete action to ensure compliance with the rules of international law violated by Israel also results from the spirit of the provisions of the Final Document of 2005 on the responsibility to protect:

“Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”[192]

In addition, States have undertaken

“to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” [193]

This commitment clearly reflects the intention of the UN Member States to act concretely and collectively “should peaceful means be inadequate” to stop war crimes, ethnic cleansing or crimes against humanity. Now, Israel is committing such crimes (supra §§ 5.35-5.41, 5.47-5.49, 5.64, 5.66). The Tribunal considers that it would be absurd to think that this commitment would apply only to States and not to the UN that the Declaration explicitly mentions. Even if the obligation to protect does not mean that the UN should use force, it means they should at least consider the adoption of non-military measures in order to obtain the respect of their decisions.

Given that, since 1967, no real progress has occurred in either the withdrawal of Israel from the Palestinian territories – except for the Gaza Strip, but only partially (supra §§ 5.17 f.) –, or in the respect of the Fourth GC and human rights, the Tribunal concludes that the UN should take more concrete steps towards Israel, including sanctions provided for in Article 41 of the Charter. By abstaining from doing so, the UN does not comply with the purposes of the Charter, or the obligation to implement it in good faith or his due diligence for one of its members – Israel – comply with the rules that bind it.

This omission is an internationally wrongful act of the UN. [194]

5.103 The practice of the UN itself confirms the foregoing conclusion. For over 40 years, the UN did not hesitate to take more concrete measures than mere verbal condemnations to compel States to respect the basic rules of international law similar to those violated by Israel. The rules at issue were:

-  maintaining peace and international security:

-  it is, namely, in the name of threat to peace and security posed by the conflicts in the FRY in 1991 that the Security Council decided military embargo measures against FRY; [195]

-  during the conflict in Somalia in 1992, the same reason led the Security Council to decide an embargo on arms sent to this country; [196]

- non-compliance with the resolutions of the Security Council:

-during the civil war in Angola, the Security Council found that its resolutions calling on the parties to observe a cease-fire were not complied by UNITA : the Council decided to prohibit supply of military equipment to UNITA; [197]

-after the Lockerbie bombing, the Security Council decided an embargo on arms and relations with Libyan Airlines as Libya did not apply the Security Council resolution asking him to hand over to the US or the UK the suspects claimed by both sSates; the Council also requested that the States reduce the Libyan diplomatic and consular personnel accredited in these States; [198]

-  failure to respect the right of peoples to self-determination:

-this is on behalf of the right of peoples to self-determination that, in 1965, the Security Council decided on a military and economic embargo against Rhodesia; [199]

-   failure to respect IHL:

-the Security Council prohibited any shipment of arms to UNITA in the aforementioned case of Angola, mainly because of violations of IHL; [200]

-   failure to comply with fundamental rights and freedoms:

- the policy of apartheid led the Security Council to decide on a military and economic embargo against South Africa. [201]

This practice that the Tribunal cites as purely illustrative shows that for situations that lead to the violation of the same rules of international law that the Israeli-Palestinian conflict, the Security Council takes unarmed action of a coercive nature much more severe than verbal condemnations he utters regularly on Israel. Confronted with situations that have neither the scale nor the political public nature of the Palestinian problem, the Security Council responds with a vigour that contrasts with its nonchalance vis-à-vis Palestine. Thus, about the Al-Shabaab movement which is presented as “a terrorist threat to Somalia” [202], it is striking that the Security Council decides to fight Al-Shabaab in prohibiting the export of wood charcoal from Somalia (because wood charcoal would allow this movement to finance) and prohibiting States to import wood charcoal from Somali [203]. If the Council can act at this level, it could and should do so in a situation which threats international peace and security on a much higher scale.

Furthermore, the Security Council is far from having exhausted the means at its disposal [204]: it could refer the case to the ICC as it did for Sudan [205] and Libya [206]; it could also adopt sanctions as it did against South Africa at the time of apartheid in the 70s and the 80s [207], against Iraq when it invaded Kuweit in 1990 [208], against the FRY during the Yugoslav wars in the 90s [209], against Cambodia in 1992 at the time of the Khmer Rouge [210], against Haiti in 1993/4 [211], against the UNITA in Angola in the 90s [212], against Rwanda in 1994 [213], against Sierra Leone in 1997 [214], against the Afghan Talibans from 1999 [215], against Eritrea and Ethiopia in 2000 [216], against armed groups in DRC in 2003/7 [217] and in Sudan in 2004/6 [218], against Ivory Coast from 2004 [219], against North Korea from 2006 [220], against Iran from 2006 [221], against Libya in 1992 and 2011 [222], against Guinea Bissau [223], etc. This list which is not exhaustive, proves, according to this Tribunal, that the UN Organisation has to react more concretely than through verbal condemnations when it is confronted with gross violations of basic rules of international law.

These positions comply with the 2005 World Summit Outcome which stated :

“The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with ChaptersVI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law.” [224]

On the beginning of this session of the UNGA, the Secretary-General recalled the role of the international organizations in the responsibility to protect:

“when non-coercive measures failed or were inadequate, it was necessary to consider enforcement by the appropriate intergovernmental bodies, including sanctions and, in extreme circumstances, the use of force.” [225] (emphasis added)

5.104 The obligation to adopt concrete measures in order to improve the protection of Palestine against the violations of international law by Israel is not limited to the Security Council. The UNGA is also concerned. In its 2004 advisory opinion, the ICJ said:

“Finally, the Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.” [226]

In other words, the UNGA is also obliged to do more than it does. In the Syrian situation, the Secretary-General congratulated the GA for its proactive role:

“As for Syria, the past eight months had seen the immense human cost of failing to protect, he [the Secretary General] said, commending the General Assembly for its proactive response to the Syrian crisis.” [227] (emphasis added).

The Tribunal observes that, in the Palestinian case, the GA was not more proactive than the Security Council since the GA abstained from taking concrete measures to end the violations of international law by Israel in spite of the fact that the GA could have been much more active through the Acheson procedure (A/RES/377 (V), 3 Nov. 1950, Uniting for peace) as it did several times in the past; for example, the UNGA could have

-      set up peace-keeping missions;

-      rejected the credentials of Israeli representatives;

-      said in its Declaration on the Rule of Law at the National and International Levels [228] (supra § 5.26) that Israel was a model of permanent denial of the rule of law [229].

5.105 In conclusion, the Tribunal,

-     considering the abstention of the Security Council and the General Assembly to take action proportionate to the duration and severity of the violations of international law committed by Israel,

- considering that all peaceful means of pressure available to the Security Council and the General Assembly have not been exhausted,

finds that these two UN main organs do not comply with the obligations that States have conferred on the UN through the Charter, the right of self-determination of the peoples, the rules of due diligence, the obligation to fulfil in good faith the obligations under international law, the obligation to ensure respect of IHL, the responsibility to protect.

By its failure to implement these rules and to act more seriously than it does, the UN violate international law.

3. Legal consequences of UN omissions

5.106 The lack of concrete action by the UN against Israel is an internationally wrongful act which prejudices Palestine and engages the responsibility of the Organization as provided for  in the ILC’s Draft Articles on the Responsibility of International Organisations (Art. 3) and in the ECJ and ECHR case-law. [230] The unlawful nature  of the UN omissions is even more obvious that the Israeli violations of international law are, legally speaking, of exceptional gravity and therefore require appropriate responses from the Organization which has particular responsibilities for maintaining international peace and security, including compliance with basic rules of international law: the right of peoples to self-determination, human rights and fundamental freedoms, IHL.

As stated classically in the ILC’s draft articles on responsibility of international organizations [231], the UN must stop its wrongful omission and compensate the damage suffered by Palestine. The relevant provisions of the project provide :

Art. 30 : “The international organization responsible for the internationally wrongful act is under an obligation:

(a) To cease that act, if it is continuing;

(b) To offer appropriate assurances and guarantees of non-repetition, if

circumstances so require.”

Art. 31 : “1. The responsible international organization is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the

internationally wrongful act of an international organization.”

Le Tribunal fully agrees with these principles : on the one hand, the UN must end its failure to act and take more concrete action against Israel, on the other hand, the UN will have to negotiate with Palestine the modalities of adequate compensation.

E.The responsibility of the US for their assistance to Israel’s violations of international law

5.107 Israel’s ongoing colonial settlement expansion, its racial separatist policies, as well as its violent militarism would not be possible without the US’ economic, military, and diplomatic support. In doing so, the US is in violation of several of its international duties and obligations as articulated in the International Law Commission’s Draft Articles on Responsibility of States, the 1949 Geneva Conventions, the 2004 ICJ advisory opinion, the UN Charter, as well as US domestic law.

5.108 By enabling and financing Israel’s violations of international humanitarian norms and human rights norms, the US is guilty for complicity in international wrongful acts per Article 16 of the International Law Commission’s Draft Articles on Responsibility of States. Article 16 states

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if…that State does so with knowledge of the circumstances of the internationally wrongful act; and the act would be internationally wrongful if committed by that State.” [232]

By preventing accountability for Israel’s wrongful acts under humanitarian and human rights law, the US aids and assists Israel in these actions. In particular, the US’ financial contribution to the expansion of colonial-settlements coupled with the impunity the US has provided to Israel within the Security Council as well as the Human Rights Council has made it responsible for this internationally wrongful act.

Additionally, the US’ military aid to Israel facilitated Israel’s attack against Gaza 2008/2009 in a 22-day aerial and ground offensive that killed 1,400 Palestinians, including 280 children. Even if this attack was not foreseeable for the US when it sold weapons to Israel, the US had knowledge of Israel’s history and its numerous past violations of international law. Therefore it could easily foresee that Israel would likely use its weapons wrongful ways : the “knowledge” criterion required by Article 16 of the ILC’s Draft Article mentioned above is fulfilled. [233] This is the reason why the US is a “State which aids or assists another State in the commission of an internationally wrongful act by the latter” under Article 16, and, consequently, “is internationally responsible for doing so”.

5.109 By obstructing accountability for violations of the Geneva Conventions, the US has failed to meet its obligations as a High Contracting Party per Common Article 1. The US has a duty to uphold the Geneva Conventions and its implementation. By purposefully supporting the expansion of settlements in contravention of Article 49 of the Fourth Geneva Convention and impeding accountability, the US is in violation of its obligation “to ensure respect for the present Convention in all circumstances” (Common Art. 1; also Rules 139 and 144 of customary IHL as codified by the ICRC). [234]

More particularly, in continuing to provide economic support for settlement expansion, the US does not comply with the International Court of Justice’s dicta, which stated  in its Advisory Opinion on the Wall in the OPT:

“Al1 States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; al1 States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation. while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” [235]

5.110 By failing to hold Israel to account for its 2008/09 Winter Offensive and put pressure upon it to lift the siege, the US fails to ensure respect for Article 33 of the Fourth Geneva Convention, which prevents collective punishment.

By failing to hold Israel to account for its war crimes, the US has also violated its obligations under Articles 146 and 147 of the Fourth Geneva Convention which obliges States to prosecute in their domestic courts persons that commit grave breaches of the Convention. Even if the US is certainly not the only State in the world to fail to respect this prosecution obligation, the Tribunal considers that this obligation concerns more especially the US given the close ties between the US and Israel.

5.111 By stonewalling an international resolution to the conflict by abusing its veto power within the Security Council, the US is in violation of several provisions of the UN Charter, in particular Article 24, which confers upon members of the Security Council primary responsibility for the maintenance of international peace and security.

By stonewalling resolutions aimed at holding Israel to account for its international law violations, the US is in breach of its duties as a Security Council member, particularly Articles 33, 34, and 39 of the UN Charter. Article 39 imposes a duty upon Security Council members to investigate

“the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

By failing to investigate Israel’s attack on Gaza in Winter 2008/09, its practice of extrajudicial assassinations, its unilateral annexation of East Jerusalem and its settler-colonial expansion, the US is in breach of its obligations under Article 39 when taken together with the UN Charter’s Preamble and Article 1 as well as the 7^th principle (good faith) of the 1970 UN Declaration on Friendly relations.

5.112 The US is in violation of its own domestic law, which mandates that it ensure that its foreign aid is used in accordance with human rights norms. In particular:

“Congress has incorporated the US Administration position [on the use of US aid in the OPT] in law. Title VI of P.L. 102-391 (H.R. 5368, signed into law October 6, 1992), which authorized $10 billion in loan guarantees for Israel, stated that the funds may not be used in the occupied territories. P.L. 108-11, the FY2003 supplemental appropriations, included $9 billion in loan guarantees that cannot be used in the occupied territories.” [236]

The US did not conduct proper oversight to ensure Israel’s compliance with these terms.

States receiving US military aid are subject to legal obligations set forth in legislation such as the Arms Export Control Act, the Foreign Assistance Act, and the Mutual Defense Agreement. The President and Congress are required to enforce these laws and investigate any violations of them. The US has not conducted any such investigation, despite compelling evidence that Israel’s use of US-supplied weapons were not used for the sole purpose of self-defense.[237]

5.113 For these reasons, the Tribunal,

-  considering the political, economic and military assistance the US has contributed to the violations of international law committed by Israel,

-  considering the US veto frequently used to oppose a number of Security Council resolutions condemning Israel,

-   considering the lack of efforts by the US to ensure respect for IHL by Israel,

finds that the US

-    assists another State in an internationally wrongful act according to Article 16 of the ILC Draft Articles on State Responsibility;

-   does not comply with its obligation to ensure respect for IHL by Israel according to Common Article 1 of the 1949 Geneva Conventions as well as to Rules 139 and 144 of customary IHL as codified by the ICRC;

-    abuses its veto right and does not comply with the UN obligation “to maintain international peace and security”, to promote and encourage “respect for human rights and for fundamental freedoms”, to “fulfil in good faith the obligations” the US assume “in accordance with the present Charter” (UN Charter, Art. 1-2).

F.  The “sociocide” issue and its legal consequences

5.114 The Tribunal has eventually been requested to render its opinion as to the existence of a crime of sociocide in Palestine. Sociocide was first introduced at the Russell Tribunal 2011 Cape Town Session to reflect a sentiment that the Palestinian people are enduring the systematic destruction of their language, culture, and, more generally, their society. It was integrated into this session for further investigation.

5.115 The Tribunal would first emphasize that positive international law does not recognize the crime of sociocide as such [238]. The Tribunal finds evidence neither of its existence in international law nor of a current trend in international affairs that would soon lead to its recognition as an international crime. The crime of sociocide remains, as such, an academic concept. It was also the case of the word “genocide” when it was used for the 1^st time in 1944 by the American lawyer R. Lemkin before becoming a legal concept with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

5.116 Sociocide is used to describe the process of destroying a national, ethnical, racial or religious group. It lies on the assumption that the destruction of national, ethnical, racial or religious group can take different shapes. In its more radical form, the destruction of the group is reached through genocide, i.e. through the direct or indirect physical destruction of the members of the group [239]. Not trying in any way to minimize the gravity of this crime and the paramount importance of its recognition by the UN General assembly in 1948, the Tribunal, after hearing various witnesses, is convinced that there exist other ways to effectively destroy a group without resorting to the physical destruction of its members [240]. It is in the opinion of this Tribunal, that the systematic destruction of the essence of a social group, i.e. of all the elements that make a group more than the sum of its members, will inevitably result in the destruction of the group itself even though its members are, for the most part, still physically unscathed. In the Tribunal’s view, such a destruction of a national, ethnical, racial or religious group can occur through:

1) the widespread or systematic destruction of its social and political structures,

2) the widespread or systematic destruction of its material and immaterial elements of shared identity.

5.117 The Tribunal considers that the Palestinian population as a national group is currently facing a sociocide. The Tribunal first considers that the Palestinian population is a national group. To reach that conclusion, the Tribunal resorts to the logic of the International Criminal Tribunal for the former Yugoslavia (ICTY) used to define the notion of group in the UN genocide convention:

“ It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators” [241].

Using that logic, it has no doubt that the Palestinian population is a distinct national group in the eyes of Israeli authorities.

5.118 The Tribunal goes on to consider that a widespread and systematic destruction of some Palestinian social and political structures is currently taking place in Palestine. Through the continuing military occupation of the Territory, the continuing building of civil settlements, the construction of a wall that places parts of the Palestinian territory out of reach of the Palestinian authority and, finally, through the blockade of the Gaza strip, Israeli authorities have materially impeded Palestinians to organize a political structure that would fully be able to administer them as a distinct national group. Israeli authorities fully endorse the current occupation of the territory and the idea according to which Palestinians cannot organize themselves without Israel’s consent.

As already noted by the International Court of Justice, and as previously stated by this Tribunal, Israeli behaviour on that regard is in clear violation of the right to self-determination recognized to the Palestinian people:

“by maintaining a form of domination and subjugation over the Palestinians prevents them from freely determining their political status, Israel violates the right of    the Palestinian people to self-determination inasmuch as it is unable to exercise its sovereignty on the territory which belongs to it; this violates the Declaration on the  granting of independence to colonial countries and peoples (A/Res. 1514(XV), 14  Dec. 1960) and all UN General Assembly resolutions that have reaffirmed the right of  the Palestinian people to self-determination since 1969 (A/Res. 2535 B (XXIV), 10 Dec. 1969, and, inter alia, A/Res. 3236 (XXIX), 22 Nov. 1974, 52/114, 12 Dec. 1997,  etc)”.

In this session, the Tribunal would go further and emphasize that the opposition of Israeli authorities to the organization of Palestinians as a national group has been widespread and systematic. In this Tribunal’s view, it has no doubt, that Israel’s behaviour could result, in the long run, in the destruction of the Palestinian population as a distinct national group and leave nothing but a sum of individuals under Israel’s political administration.

5.119 The Tribunal also considers that a widespread and systematic destruction of Palestinians’ material and immaterial elements of shared identity is currently taking place. The main obstacle to the sharing of Palestinian identity lies in the institutionalized policy of separation of the Palestinian population exemplified by the construction of a wall that divides the Palestinian population, by the systematic denial of the right of return, restitution, and rehabilitation for the Palestinian people to their original homes and properties, as well as by the severe restriction imposed to unification of Palestinian families in Israel [242].

5.120 The destruction of the Palestinian elements of shared identity also materializes by systematic actions that impede the Palestinian population from having safe and effective access to the places where it could share and pass on elements of shared identity, in particular places of worship or learning. The Tribunal especially notes that Palestinian mosques and educational institutions are frequently targeted by the IDF [243]. It recalls that, in Gaza, during the latest large scale military operations, at least 280 schools and kindergartens were destroyed or damaged, killing 164 pupils and 12 teachers. These killings also hit the schools administered by the UNRWA where 86 children and three teachers were killed [244]. The blockade of Gaza also impedes university students and scholars to leave the strip to reach their education facilities in other parts of the Palestinian territories or elsewhere [245]. The Tribunal also notes the reports stating that the division and occupation of other parts of the territory created a situation in which Palestinian children are being forced to cross settlement areas and risk beatings and harassment by settlers, or walk for hours just to get to school [246], sometimes blocked at checkpoints or gates [247].

The Tribunal also emphasizes that Israel impedes those elements of shared identity to be easily shared through other means of communication such as phones, televisions and Internet connected devices. All those means of communication are deeply controlled by Israeli authorities, which set various economic and technical barriers to render those means of communication either less efficient or unaffordable [248]. The Tribunal also notes that Israeli destruction of Palestinian’s material and immaterial elements of shared identity has been lasting for a long time and recalls that, more than a decade ago, UNESCO already deplored

“the destruction and damage caused to the cultural heritage and to institutions and infrastructures, radio and television facilities, and premises appertaining to the Palestinian education system” [249],

while other sources outlined the systematic destruction of public records [250] and, later on, of University labs and libraries [251].

5.121 As the Tribunal has noted, Israel is proceeding to the widespread and systematic destruction of Palestinian social and political structures and material and immaterial elements of shared identity. It is the opinion of this Tribunal that this behaviour could result, in the long run, in the destruction of the Palestinian population as a national group with a shared identity and leave nothing but a sum of individuals under Israel’s political administration. The Tribunal therefore considers that Israel is currently committing sociocide in Palestine but strongly emphasizes that most of the acts mentioned above are already condemned by current positive international law as being either crimes against humanity or war crimes or apartheid crimes under, as the case may be, the ICC Statute, the 1949 Geneva Conventions, the 1977 1^st Additional Protocol, the 1973 UN convention on the apartheid crime, the 1996 ILC Draft Code on crimes against the Peace and Security of Mankind.

G.The ways forward

5.122 There have been important developments in respect of Palestine since the meeting of the Russell Tribunal on 5-8 October. Any discussion of the “Ways Forward” must take these events into consideration.

5.123 From 14 to 21 November Israel attacked Gaza in Operation Pillar of Defence (Hebrew: Pillar of Cloud). This Operation was prompted, according to Israel, by  continued rocket fire  from Gaza. The Operation started with the assassination of Ahmed Jabari, chief of the military wing of Hamas. Israel struck more than 1500 sites in Gaza in its air offensive. According to the Palestinian Centre for Human Rights 158 Palestinians were killed of  whom 102 were civilians (including 30 children and 13 women). The  worst example of an attack on civilians was provided by the bombing of the Al-Dalu home  which resulted in the death of  twelve persons – two men (one a  low-ranking police officer), six women and  four children. Human Rights Watch has described this killing as “a clear violation of the laws of war”. Four Israeli civilians and two soldiers were killed in the offensive. Although Palestinians fired over 14,00 rockets into Israel, including one that reached Tel Aviv, most rockets were intercepted by Israel’s Iron Dome Missile System. Although the UN Secretary General condemned the attack on Gaza the Security Council was unable to reach a decision. An anticipated ground offensive failed to materialize. The aerial assault came to an end on 14 November when a ceasefire brokered by Egypt came into force. Both sides claimed victory: Israel on the ground that it had destroyed  Hamas’s rocket capacity; Hamas on the ground that it had successfully fired rockets into Israel and that no ground offensive had taken place.

5.124 On 29 November 2012 Palestine was accorded the status of “non-member observer State” by the UN General Assembly in a resolution adopted by 138 votes to 9 with 41 abstentions (supra § 5.11).

5.125 In response to  the decision of the General Assembly to accord non-member State status to Palestine the Israeli government announced that it had approved plans for the construction of 3,000 settlement units in the E1 corridor between East Jerusalem and the settlement of Maale Adumim. This will destroy the possibility of a contiguous Palestinian State as it will cut off Ramallah and Bethlehem from East Jerusalem. All members of the Security Council except the United States denounced Israel’s decision.

5.126 The Security Council again failed to take concerted action because of the opposition of the United States.

5.127 The above developments indicate that there is widespread support for Palestinian statehood . At the same time they show that Israel can continue to attack Gaza and  construct settlements in the West Bank and East Jerusalem with  impunity as the Security Council is powerless to act. It is in this context that the  following proposals are made for the future action by the International Criminal Court, the Palestinian Authority, States and civil society.

5.128 The recognition of Palestine’s statehood by the General Assembly means that it is now open to the Prosecutor of the International Criminal Court (ICC) to initiate an investigation into international crimes committed in the course of Operation Cast Lead 2008-2009 in terms of the declaration submitted to the ICC by the Palestinian Authority in January 2009. This can be done even if Palestine fails to become a member State of the ICC as the declaration submitted in terms of Article 12(3) of the Rome Statute of the ICC is premised on two facts –Palestinian non-membership of the ICC and Palestinian statehood. Now that the latter issue has been determined by the General Assembly the ICC can proceed with an investigation and prosecution without further action from the Palestinian Authority. Every effort should be made by civil society, particularly NGOs active in the field of international criminal justice, to compel the Prosecutor of the ICC to act.

5.129 The Palestinian Authority may now sign and ratify the Rome Statute of the ICC and become a full member of the ICC. There is no requirement of UN membership for becoming a party to the Rome Statute.  There is already a  UN non-member State that is a party to the Rome Statute – the Cook Islands. Therefore there is no legal obstacle in the way of Palestine’s accession to the Rome Statute. This will allow Palestine to initiate prosecution for international crimes committed on its territory. The war crimes and crimes against humanity committed in the course of Operations Cast Lead and Pillar of Defence present  obvious examples of crimes that may be referred to the ICC. It would also be possible to refer the war crime of transfer of settlers, provided for in Article 8 (2) (b) (viii) of the Rome Statute to the ICC However, it seems that the Palestinian Authority (PA) is reluctant to become a member of the ICC as a result of opposition from the United States. It is therefore incumbent on both States and civil society to pressure the PA in taking action of this kind.

5.130 There are a number of other international conventions to which Palestine may now, and should now, accede. Of particular importance are

(a)    the Geneva Conventions of 1949 on the laws of war and its two Protocols of 1977. This would make it impossible for Israel to continue arguing that  the Geneva Conventions are not applicable to the occupation of Palestine; and it would make it clear that Palestinian  prisoners  are entitled to PoW status.

(b)     The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Palestine should also become a party to the other important human rights conventions, notably the Convention against Torture.

(c)    The Vienna Conventions on Diplomatic and Consular  Relations. This would enhance Palestine’s  diplomatic relations with States.

(d)     The Law of the Sea Convention. This would provide Palestine with a strong legal basis to claim a territorial sea of 12 nautical miles and  an exclusive economic zone of 200 nautical miles in respect of the waters off Gaza.

5.131 Palestine may now become a member of UN specialized agencies, such as the WHO, the ILO , the World Bank and the International Civil Aviation . Membership of such organizations will provide Palestine with opportunities to assert its statehood and to compel Israel to comply with its international law obligations.

5.132 Recent developments have opened the door to the PA to take steps to put an end to the impunity of Israeli political and military leaders, to halt the expansion of settlements by means of criminal prosecution, to hold Israel accountable for the violation of international human rights treaties and the Geneva Conventions, and to make Palestine’s  voice heard in international organizations. However, there is strong opposition  to any such action being taken by the  United States and the European Union, that is  largely guided by the United States on its foreign policy towards Israel , is also unenthusiastic about such measures. In these circumstances there is a real need for civil society to bring pressure to bear on governments to encourage the PA to employ these measures.

5.133 the failure of the Security Council to take action against Israel in respect of Operation Pillar of Defence and its recent settlement expansion underlines the weaknesses in the UN system. The  complicity of the United Nations and the United States in Israel’s violations of international law, which was highlighted in the New York session of the Russell Tribunal, therefore seems likely to continue This sends out a clear message to civil society that justice will not be done in Palestine without strong pressure from civil society.

5.134 It is not only incumbent on civil society to bring pressure on  the PA and States to take meaningful action against Israel There is also a great need for public education. Civil society must ensure that greater publicity is given to Israel’s violations of international law and  the fact that Israel’s de facto annexation of Palestinian land by means of settlements, the Wall and control of Area C makes a two-State solution increasingly impossible. The  failures of the United Nations, and the complicity of the United States in Israel violations of international law, must also be highlighted to a greater extent.

5.135 Civil society is  presently engaged in attempting to secure justice for Palestine by means of Boycott, Divestment and Sanctions and by litigation in foreign countries. These campaigns must continue and become more effective.

At the same time civil society must adapt its strategies to the new status of Palestine and take steps to ensure that Palestine does not miss the opportunities that are now open to it.

VI.      CONCLUSIONS

6.1 For all these reasons, after having observed and recalled that Israel violates permanently:

-    the UN Charter by not complying with the Security Council resolution demanding that Israel withdraws from the occupied Palestinian territories;

-  the right of the Palestinian people to self-determination by maintaining the occupation of the Palestinian territories, including the Gaza Strip inasmuch as Gaza’s maritime and aerial spaces and the land strip that runs all along its land border with Israel remain totally under Israel’s control; the buffer zone imposed inside the Gaza Strip by Israel prevents the people of Gaza from cultivating 35% of their arable land and even from having access to it;

-   fundamental rules of international humanitarian law and of human rights law, in particular the provisions which prohibit the occupying Power:

- rom annexing certain parts of the occupied territories such as Jerusalem;

-  from transferring parts of its own population to the occupied territory, for instance through the establishment of Israeli settlements in the occupied territories;

- from destroying properties in cases that are not justified by military necessity such as the destruction and demolition of Arab houses, quarters, villages and towns;

-  from confiscating and expropriating Arab properties for the benefit of Israeli settlements which are themselves unlawful;

-  from expelling or deporting Arab inhabitants of the occupied territories;

-from preventing the expelled persons from returning to their homes and property;

-  from arresting and confining Arab inhabitants for long periods on administrative grounds;

-  from plundering archaeological and cultural property in the occupied territories;

-  from interfering with religious freedom, religious practices and family rights and customs;

- from exploiting natural wealth resources and the population of the occupied territories.

The Tribunal unanimously finds that

1)  these violations of international law are of exceptional gravity since:

-         most of them are violations of peremptory norms of international law (jus cogens): the right to self-determination, the basic rules of international humanitarian law and human rights;

-         some of these violations are crimes against international law such as:

-       war crimes: the establishment of Israeli settlements;

-       crimes against humanity: the construction of a wall in the occupied Palestinian territories;

-       apartheid: Israeli practices and policies of racial segregation directed against the Palestinian people in the occupied territories and in Israel itself;

-         these violations are continuous and numerous;

2)  the United States assists Israel in these violations of international law through its close and narrow ties with Israel at the political, economic and military level;

3)  the United States assists Israel in these violations by abusively using its right of veto to prevent more stringent condemnations of Israel in the Security Council;

4) United States assistance to Israel is an internationally wrongful act which triggers US international responsibility;

5) Israel’s violations are denounced and condemned each year by the UN General Assembly, the Security Council, the Human Rights Council and various fact-finding commissions such as the Special Enquiry Committee on Israeli Practices in the occupied territories and the Special Rapporteur on the situation of human rights in the Palestinian territories;

6)   in 2004 the ICJ judicially condemned as violations of international law not only the construction of the wall in the Occupied Palestinian Territory but also the Israeli settlements in the Territory;

7) the UN has not exhausted the means which would enable it to be much more effective:

-    in implementing in good faith the mandate provided for in the Charter;

-   in complying with its duty of due diligence;

-   in fulfilling its responsibility to protect;

in particular,

-  the UN has not decided to impose any political and economic sanctions, as it frequently did in the past;

-    it has not referred the Middle East situation to the ICC, as it did for Sudan in 2005 and for Libya in 2011; furthermore, it has not taken into account the recognition of the jurisdiction of the ICC by the Palestinian authority in 2009;

8 ) by failing to act more actively and seriously, the UN has itself committed an internationally wrongful act which triggers its international responsibility;

8bis)  however, the Tribunal, in the aftermath of its New York session, cannot but warmly welcome and express its appreciation of the acceptance by the UN of Palestine as a non-member observer State at the General Assembly even though this upgraded status of Palestine does not detract from the obligation of the UN to adopt effective sanctions against Israel as a rogue and outlaw State;

9) Israel’s policy with respect to the Palestinian people amounts to sociocide by dint of the widespread and systematic destruction of Palestinian social and political structures and of material and immaterial elements of shared identity.

10) States and civil society should work together to adapt their strategies to the new status of Palestine in the UN, to take meaningful action against Israel and to convince the UN to comply with its Charter obligations.

VII. CONTINUATION OF THE PROCEEDINGS

7.1 These conclusions close the fourth session of the Russell Tribunal on Palestine in New York. As announced by the Tribunal since its first session, these are provisional conclusions: they are the result of a prima facie assessment of the facts brought to its knowledge and are without prejudice to the final verdict that the Tribunal will deliver at its closing session, in Brussels, on 16-17 March 2013.

7.2 The Tribunal hopes that the United States and the United Nations will give due consideration to these findings.

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[1] TPIR, aff. ICTR-98-44-AR73(C), 16 juin 2006, §§ 22 ss., ICTR Reports 2006, vol. II, p. 118.
[2] E.g. Monetary Gold and East Timor cases, ICJ Reports, 1954 and 1995.
[3] See evidence of Susan Akram.
[4] Available at http://www.un.org/en/documents/charter/chapter1.shtml
[5] Available at http://www.unrwa.org/.
[6] Available at http://www.undp.ps/en/index.html.
[7] Available at http://www.ochaopt.org/.
[8] Available at http://www.ohchr.org/EN/Countries/MENARegion/Pages/PSIndex.aspx.
[9] See evidence of Vera Gowlland-Debbas.
[10] See evidence of Susan Akram.
[11] G.A. Res 181, U.N. GAOR,  U.N. Doc. A/RES/181(II) ( Nov. 29, 1947), available at http://unispal.un.org/UNISPAL.NSF/0/7F0AF2BD897689B785256C330061D253.
[12] See evidence of Susan Akram; G.A. Res 194, U.N. GAOR, U.N. Doc. A/RES/194 (III) (Dec. 11, 1948), available at http://unispal.un.org/UNISPAL.NSF/0/C758572B78D1CD0085256BCF0077E51A.
[13] G.A. Res 273, U.N. GAOR, U.N. Doc. A/RES/273 (III) (May 11, 1949), available at http://unispal.un.org/UNISPAL.NSF/0/83E8C29DB812A4E9852560E50067A5AC.
[14] S.C. Res. 252, U.N. SCOR, U.N. Doc. S/RES/252 (May 21, 1968), available at http://www.unhcr.org/refworld/publisher,UNSC,,PSE,3b00f1fe4,0.html.
[15] See for example S.C. Res. 267, U.N. SCOR, U.N. Doc. S/RES/267 (July 3, 1969), available at http://unispal.un.org/UNISPAL.NSF/0/5932ECF53FF36A04852560C300656122; S.C. Res. 271, U.N. SCOR, U.N. Doc. S/RES/271 (Sept. 15, 1969), available at http://unispal.un.org/UNISPAL.NSF/0/35941B603B4459B8852560C50061DC5E; S.C. Res 298, U.N. SCOR, U.N. Doc. S/RES/298 (Sept. 25, 1971), available at http://unispal.un.org/UNISPAL.NSF/0/441329A958089EAA852560C4004EE74D.
[16] S.C. Res. 465, U.N. SCOR, U.N. Doc. S/RES/465 (Mar. 1, 1980), available at http://unispal.un.org/UNISPAL.NSF/0/5AA254A1C8F8B1CB852560E50075D7D5; S.C. Res. 476, U.N. SCOR, U.N. Doc. S/RES/476 (June 30, 1980), available at http://unispal.un.org/UNISPAL.NSF/0/6DE6DA8A650B4C3B852560DF00663826; S.C. Res 478, U.N. SCOR, U.N. Doc. S/RES/478 (Aug. 20, 1980), available at http://unispal.un.org/UNISPAL.NSF/0/DDE590C6FF232007852560DF0065FDDB.
[17] S.C. Res 242, U.N. SCOR, U.N. Doc. S/RES/242 (Nov. 22, 1967), available at http://unispal.un.org/unispal.nsf/0/7d35e1f729df491c85256ee700686136?OpenDocument.
[18] G.A. Res 2341, U.N. GAOR, U.N. Doc. A/RES/2341 (XXII) (Dec. 19, 1967), available at http://unispal.un.org/UNISPAL.NSF/0/4998F38BD72838F0852560DF004F6054.
[19] S.C. Res. 338, U.N. SCOR, U.N. Doc. S/RES/338 (Oct. 22, 1973), available at http://unispal.un.org/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/7fb7c

26fcbe80a31852560c50065f878?OpenDocument.
[20] G.A. Res 3376, U.N. GAOR, U.N. Doc. A/RES/3376 (XXX) (Nov. 10, 1975), available at http://unispal.un.org/UNISPAL.NSF/0/B5B4720B8192FDE3852560DE004F3C47; G.A. Res 3237, U.N. GAOR, U.N. Doc. A/RES/3237 (XXIX) (Nov. 22, 1974), available at http://unispal.un.org/UNISPAL.NSF/0/512BAA69B5A32794852560DE0054B9B2.
[21] See S.C. Res 605, U.N. SCOR, U.N. Doc S/RES/605 (Dec. 22, 1987), available at http://unispal.un.org/UNISPAL.NSF/0/A734F62E7C6F8EF9852560DE00695C66; See S.C. Res 1322, U.N. SCOR, U.N. Doc. S/RES/1322 (Oct. 7, 2000), available at http://unispal.un.org/UNISPAL.NSF/0/22F8A95E5C0579AF052569720007921E.
[22] S.C. Res 521, U.N. SCOR, U.N. Doc. S/RES/521 (Sept. 19, 1982), available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/435/45/IMG/NR043545.pdf?OpenElement; See also G.A. Res 37/123, U.N. GAOR, U.N. Doc. A/RES/37/123 (Dec. 16, 1982), available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/426/01/IMG/NR042601.pdf?OpenElement.
[23] S.C. Res 1405, U.N. SCOR, U.N. Doc. S/RES/1405 (Apr. 19, 2002), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/