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Violations of human rights and humanitarian law, particularly when
systematically carried out with no regard to their consequences, demand
that other states and international organisations not simply take
notice, but take action. The legal basis for proportionate and
“effective” (1) responses to such violations are gaining momentum
through an emerging international legal principle of the
responsibility to protect, which forms part and parcel of state
responsibility. The responsibility to protect is firstly a duty to
ensure that mechanisms are in place to prevent violations from taking
place (2) and secondly a duty of states, acting in their individual or –
ideally – collective capacities, to intervene in order to protect
civilians from potential or further violations.(3)
In his report of August 2007, UN Special Rapporteur, Professor John
Dugard was harshly critical of the failure of the United Nations, as a
member of the Quartet, to protect Palestinians and ensure respect
for international law and human rights.
The Security Council has largely relinquished its powers in respect of
the Occupied Palestinian Territory in favour of ... the Quartet. ...
without a founding resolution or mandate from either the Security
Council or the General Assembly. ... The Quartet does not see it as its
function to promote respect for human rights, international humanitarian
law, the advisory opinion of the International Court of Justice,
international law or countless United Nations resolutions on the subject
of the Occupied Palestinian Territory.(4)
When international authorities fail in their responsibility to protect,
states, regional bodies (such as the EU) and also civil society have
important roles to play in ensuring that international law is promoted
as a determining framework to protect human security and resolve
conflicts. As the International Court of Justice has confirmed on
numerous occasions, States have legally binding obligations to hold
other states to account to prevent violations of international
humanitarian law.
State responses to violations of human rights and IHL
There are several possible interventions available to states, acting on
their own or collectively, to put pressure on a belligerent state in
order to prevent or stop violations of international humanitarian law.
Umesh Palwankar has produced a useful overview of possible state
responses, in order of severity, from state protests to collective,
armed intervention.(5)
Exercising diplomatic pressure through protests and denunciation
States can challenge violations by other states through stepped-up
phases of diplomatic pressure, beginning with protests. Official
protests are directed either towards the ambassador and other diplomatic
representatives representing the alleged violating state or directly to
the government of the alleged violating state via one’s own diplomatic
representatives. In order to be effective, Palwankar argues that such
protests be “vigorous and continuous”.
A further level of diplomatic pressure is public denunciation of
another state, preferably by more than one state and ideally through an
influential organisation such as the Council of the European Union or
the Security Council of the United Nations. An example was on 20
December 1990, when the USA called on the UN Security Council to
denounce Israel’s deportation of Palestinian civilians from territories
occupied by Israel and to “comply fully” with the provisions of the
Fourth Geneva Convention.(6)
Diplomatic pressure can also be exercised against “intermediary” states,
particularly when it is alleged that they are co-responsible for
violations taking place, for example by providing arms, training and
other equipment used by a belligerent state to violate human rights or
humanitarian law. This is particularly relevant in the case of the USA
and its role in arming the Israeli military.
Calling states to account through fact-finding missions
Palwankar refers to international fact-finding commissions as a further
means of exerting pressure against alleged violating states. Such
mechanisms operate under the auspices of the United Nations and regional
political organisations, which have established various committees and
special rapporteurs to gather information about a particular issue and
report back to the organisation on recommended measures that could be
taken against an alleged violating state.
Israel's Wall, Bethlehem, West Bank 2006. (©Anne Paq)
Such commissions draw their legitimacy from a state (or group of
states), who declare their acceptance of the competence of that body and
their desire to approach it, even if the alleged violating state itself
has not declared its acceptance. Such diplomacy in the establishment of
a fact-finding commission can itself be a means of inducing a state to
take steps to suppress continued violations of international
humanitarian law. A refusal to accept a commission can be “publicly
regretted” by states.
Matters can also be referred to international tribunals, notably the
international Court of Justice (ICJ), which has the capacity to issue
binding decisions concerning disputes between states, provided both
states explicitly accept its jurisdiction. The ICJ also has the
authority to receive requests from the United Nations to issue an
advisory opinion on the application of international law to a given
situation.
Holding states to account through retortion and reprisals
If “diplomatic” measures prove to have little or no effect against a
state’s violations of international humanitarian law and human rights,
then more aggressive options become available, though most options still
fall short of armed intervention. Palwankar explains, by reference to
various examples, that states have authority to respond by way of acts
of retortion or reprisals. Acts of retortion are designed to
leverage external political pressure against an alleged violating state.
Such measures, though “unfriendly”, are intrinsically lawful, provided
they are carried out in direct response to an act of state that may also
simply be unfriendly (and lawful), or internationally unlawful. State
reprisals, on the other hand, are counter-measures and thus by
definition unlawful acts, though considered to be exceptionally
justified in light of prior unlawful acts committed by the belligerent
state to which they are directed.
Acts of Retortion
A state that is believed to be violating international humanitarian law
can face expulsion of its diplomats and/or severance of diplomatic
relations with other states. Such measures are exercised as temporary,
though forceful responses. For example, the government of Venezuela
recalled its ambassador from Tel Aviv in the summer of 2006 in protest
at Israel’s attacks on the civilian population in Southern Lebanon.
Further steps include halting ongoing negotiations on bilateral or
multilateral agreements with a violating state, or refusing to ratify
agreements already signed with a violating state. Such measures often
concern trading agreements that provide for preferential terms of trade,
for example Israel’s Association Agreement with the European Union. The
EU includes Israel’s largest trading partners, as such the Association
Agreement could be a substantial means of exercising combined political
and economic pressure against Israel’s belligerence.
Reprisals
When a state still refuses to comply and continues to violate
international humanitarian law with impunity, further counter-measures
can be taken by individual or groups of states against a belligerent
state. As with the above, most of these measures do not involve armed
intervention, though they may well aim to reduce the military capacity
of the belligerent state concerned.
Trade restrictions, bans on direct and/or indirect investment in a
belligerent state and the freezing of capital held by nationals of a
belligerent state are steps beyond state acts of retortion that aim to
do more than simply remove trading privileges, but to place direct
pressure on a belligerent state’s economy. In order to be most
effective, such restrictions should focus directly on the mechanisms of
state repression, in particular the banning of military and other state
security equipment. However, long-term efforts often demand broader
trading restrictions. Such restrictions are intended as a means of
punishing a belligerent state by way of economic sanctions and
potentially a much broader official boycott.
For example, the Government of France in 1985, later followed by the
United Kingdom, The Netherlands and eventually the USA, banned all new
investment in the Republic of South Africa in response to the Apartheid
regime’s increasingly repressive and violent repression against the
country’s majority black nationals.
A final measure of last resort that states can exercise against a
belligerent state are armed interventions. Such measures must satisfy a
range of minimum requirements, discussed by others, not least the High
Level Panel.(7) Armed measures must only be carried out under the
auspices of the United Nations Security Council in reference to chapter
VII of the UN Charter. Under Chapter VII, this may involve explicit
delegation from the Security Council to regional security agreements
such as the North Atlantic Treaty Organisation (NATO).
Responses to violations from civil society
When both states and international authorities fail in their
responsibility to protect, as the Quartet has clearly demonstrated,
civil society organisations often present the last hope for ending a
violent and/or repressive regime or to prevent mass violations of human
rights. In this context, it is important to emphasise that civil
society (see below) exercises a tertiary role in the responsibility
to protect, with the primary purpose of such interventions being
directed at urging states to take action.
This complex process of claiming rights, either directly (against
a violating state) or indirectly (via a third state) are important
components of the responsibility to protect. Individuals, both on their
own and through collective mechanisms, are increasingly holding states
to account. This is achieved through an ever-growing array of national,
regional and international mechanisms.
Beyond direct and indirect claims, there are many other human rights
advocacy strategies that civil society organisations can follow in
seeking to hold authoritarian regimes to account. Examples of these
include public shaming and boycott and divestment actions. As discussed
in a previous Al-Majdal article(8), bringing about change in a
country that persistently refuses to abide by international law (such as
the South African Apartheid regime) is not an easy task, but it is by no
means insurmountable.
Somerville
Town meeting for the right of return
International legal responses to the Palestinian refugee crisis
There is no issue that has received more attention by the United Nations
than the conflict in Israel / Palestine. Beginning with the 1947 UN
Partition Plan, the UN has consistently sought to uphold international
law as the context in which the conflict ought to be resolved and in
which refugees are to be protected, but sadly, with only marginal
success.(9)
The UN recognised its responsibility to protect Palestinian refugees
back in 1948, with the creation of the UN Conciliation Commission on
Palestine (UNCCP) in 1948 and the UN Relief and Works Agency (UNRWA) in
1949. The creation of these two institutions was to ensure,
respectively, protection of and assistance to Palestinian refugees. The
mandate of the UNCCP is enshrined in UN General Assembly Resolution 194
of 1948,(10) although the UNCCP ceased all effective activities a few
years later.
In July 2004, following a request by the United Nations Secretary
General, the International Court of Justice in The Hague delivered an
advisory opinion on the legal consequences of the construction of a Wall
in the occupied Palestinian territory.(11) As with every judgement it
issues, the ICJ’s conclusions in an advisory opinion are more than mere
rhetoric, they represent the most authoritative statement of the content
and applicability of international law. As discussed in previous issues
of Al-Majdal, the court’s judgement proved significant in an
umber of relevant aspects, including a confirmation that third states
also have obligations.
Unfortunately, there has continued to be a persistent failure on the
part of the United Nations, European Union and most individual states to
hold Israel to account and protect Palestinians. States indeed continue
supporting Israel and its military occupation, despite such actions
clearly violating international law.
The consequences have been disastrous. Israel’s non-recognition of the
right of return, coupled with its illegal annexation of land and control
of movement in occupied Palestinian areas, has resulted in 55,
densely-populated Bantustans and a decades-long exile in refugee camps.
Civilian areas, including refugee camps, are regularly subjected to
attacks by the Israeli army, whether through indiscrete policies of
extra-judicial assassinations or collective punishment.
Conclusions
With prevention of human rights and humanitarian law violations at the
core of the responsibility to protect, states and international
organisations have expressed a renewed commitment to respect
international law and protect vulnerable populations.
In finding away forward, it is helpful to recall two of Professor
Dugard’s most recent recommendations.(12) In addition to recalling
states' independent obligations to hold Israel accountable, Dugard
advised the UN Secretary General:
If the Secretary-General is unsuccessful in persuading the Quartet to
act as proposed above, the United Nations should cease to give its
imprimatur to the actions of the Quartet and should withdraw from the
Quartet.
And to the UN General Assembly:
The General Assembly is urged to request the International Court of
Justice to give a further advisory opinion on the legal consequences for
the occupied people, the occupying Power and third States of prolonged
occupation.
When the United Nations and states fail in their responsibility,
it is left to individuals, global citizens acting on their own or
through NGOs, who can take steps on their own account, including
boycott, divestment and sanctions, until international law is respected.
At the other end of the international law spectrum is still the ICJ,
which as Dugard reminded, resolves disputes and advises the UN in
international crises. All have a key role to play when international
authorities fail in their responsibility to protect.
-------------------------------
Jeff Handmaker is lecturer in Development, Human Rights and Governance,
Institute of Social Studies, The Hague. This article is an abbreviated
version of a chapter originally published in The Responsibility to
Protect: Ethical and Theological
Reflections,WorldCouncilofChurches:Geneva,2005anddrawspartly on a
presentation by Susan Akram and Jeff Handmaker, ‘Legislative and
political advocacy: the obligations of Governments under international
law’, United Nations International Conference on the Question of
Palestine, New York, Sept 2004.
Endnotes
(1) Effective Strategies for Protecting Human Rights, David
Barnhizer (ed), Ashgate, 2001.
(2) Marco Sassoli, ‘State responsibility for violations of international
humanitarian law’, IRRC, Vol 84, No 846, June 2002 argues that
“the focus of implementing mechanisms is and must always be on
prevention”, 401.
(3) The Responsibility to Protect, Report of the International
Commission on Intervention and State Sovereignty (ICISS Report),
December 2001; A More Secure World: Our Shared Responsibility,
Report of the High Level Panel on Threats, Challenges and Change,
December 2004; In Larger Freedom: Towards Development, Security and
Human Rights for All, Report of the Secretary-General of the United
Nations, March 2005.
(4) Report of the Special Rapporteur on the situation of human rights
in the Palestinian territories occupied since 1967, United Nations
General Assembly, 17 August 2007, Ref: A/62/275.
(5) Umesh Palwankar, 'Measures available to States for fulfilling their
obligation to ensure respect for international humanitarian law',
International Review of the Red Cross, No. 298, February 1994,
p.9-25.
(6) Palwankar, Ibid.
(7) Above, note 4.
(8) Handmaker, J., ‘Palestine Does Not Have to Bargain to Obtain its
Human Rights’, Al-Majdal, Issue 25, Spring 2005.
(9) Countless books and articles have been written about this. See:
www.reahamba.nl/palestine/biblio.pdf
(10) United Nations General Assembly Resolution 194 (III), 11 December
1948.
(11) Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, International Court of
Justice, 9 July 2004.
(12) See note 5, above.
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