Birzeit University Conference paper – Law and Politics: Options and Strategies of IL for the Palestinian people

The designers of the conference of which this paper is a report argue that a radical paradigm shift is needed in the national and international perspective on the Israeli occupation of Palestine. The primary legal framework within which to analyze Israel’s actions in the occupied Palestinian territories should be the right of self-determination and the right of reparations for the Palestinian people rather than the laws pertaining to war and to occupying powers. Long-term focus on the latter has allowed the situation to be viewed predominantly from an international humanitarian law (IHL) perspective: the two parties are seen as continuously in a state of imminent or actual conflict, or as being in a prolonged state of post-conflict damage control. (The so-called “war on terror” construct has amplified this tendency). Diplomatic efforts have focused on aid and negotiations to mitigate the harsh effects of the occupation on the Palestinian population. Conference participants pointed out that IHL has many limitations when applied in the Israeli/Palestinian context: the language of the fourth Geneva Convention is not adequate and was never intended to deal with an occupation lasting more than half a century. As jurisprudence from Israeli military and civil courts amply demonstrates, the laws of war tend easily to be subordinated to the imperatives of ‘military necessity’ wherever battlefield conditions are said to prevail.

This conference was designed to enable discussion of legal strategies, that would build respect for the human rights of the Palestinian people, in particular their rights to self-determination and reparation, and to prompt full recognition of the international obligations both of Israel and of third parties. The conference considered the merits of using the legal frameworks of colonialism and apartheid as a guide in formulating a new Palestinian strategy, and of making better used of international legal mechanisms such as the ICJ, the ICC and the inter-state complaint mechanism under the Covenant for the Elimination of Racial Discrimination. The limits of IHL were explored by posing questions such as the following: ‘Should an occupation extended beyond five years automatically impose an obligation to withdraw from the territory or establish the rule of law in accordance with international human rights law?; At what point does a regime that doesn’t allow the civilian population to benefit fully from the rule of law become a system of apartheid?; To what degree does the occupying power’s policy of changing the demographic composition correspond to ethnic cleansing?

Since publication of this conference report, the Palestinian government has acceded to the ICC and submitted its first case materials to the Office of the Prosecutor. (See elsewhere in this section).