President Shimon Peres tells Ban ‘UN cannot remain neutral in light of the rockets fired from Gaza to Israel.’ In recent days Israel has been exploiting the attacks from both sides of the conflict and the Goldstone editorial in the Washington Post to demand that the UN Fact Finding report be retracted and to insist that the UN take action against the de facto government of Gaza. The UN Security Council has consistently violated neutrality and customary international practice by refusing to acknowledge the reports of its own human rights treaty monitoring bodies and fact finding missions that say the de facto government in Gaza is part of a belligerent community that is suffering the consequences of an illegal blockade. The rights and duties of the Hamas regime and the population of Gaza should be the same as those of any other State:
Once the decision has been taken to recognize an insurgent government as belligerent, the legal consequences of the decision are not limited to its concession of belligerent rights. So long as it maintains an independent existence, the insurgent government is considered to have all the normal rights and liabilities of a State. Its legal position is not merely that of a military occupant as defined by the Hague Convention No. IV, of 1907. — See Ti-chiang Chen, “The international law of recognition, with special reference to practice in Great Britain and the United States”, Nabu Press, 2010, page 307-308.
Chen also explained why non-recognition and collective punishment are not an acceptable solution. He said it could not be denied that a belligerent community enjoys authority in the territory under its control and that individuals living there have no choice but to submit to that authority. A third state can’t, without causing grievous hardships and inequities to the local inhabitants, deny the legal validity of the acts of the belligerent community which regulate life within its territory. UN Security Council Resolution 73 (1949):
Reaffirmed pending the final peace settlement, the order contained in its resolution 54 (1948) to the Governments and authorities concerned, pursuant to Article 40 [Chapter 7] of the Charter of the United Nations, to observe an unconditional cease-fire and, bearing in mind that the several Armistice Agreements include firm pledges against any further acts of hostility between the parties and also provide for their supervision by the parties themselves, relies upon the parties to ensure the continued application and observance of these Agreements;
The principles of international law codified in the UN Charter were subsequently studied and published by the General Assembly. The Charter principles establish that:
Every State… has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. …States have a duty to refrain from acts of reprisal involving the use of force. — See General Assembly resolution 2625 (XXV) “Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations”
Ironically, Israel refuses to withdraw its armed forces or recognize the armistice lines and has recently threatened unilateral steps if the UN Security Council recognizes them or a Palestinian state established in the Occupied Palestinian territory pending a final settlement. However, even legal experts who support the government of Israel, such as Professor Ruth Lapidot, have explained that:
Recognition of statehood is a political act, and every state has the right to decide for itself whether to recognize another state.
The General Assembly affirmed a long time ago that Palestinian statehood is not dependent on the peace process or subject to any veto. Judge Rosalyn Higgins advised:
This is not difficult – from Security Council resolution 242 (1967) through to Security Council resolution 1515 (2003), the key underlying requirements have remained the same – that Israel is entitled to exist, to be recognized, and to security, and that the Palestinian people are entitled to their territory, to exercise self-determination, and to have their own State.
Judge Theodor Meron was the Chief Legal Counsel of the Foreign Ministry and the Israeli government’s expert on international law in 1967 . He pointed out that responsibility for the outbreak of the Six Day War has never been authoritatively established. See “Henry’s wars and Shakespeare’s laws”, Oxford University Press, 1993, page 45-46. Israel frequently cites security or a state of necessity to justify the occupation and its other measures, but the International Court of Justice determined that Israel could not preclude the wrongfulness of its actions on those grounds because it had contributed to the state of necessity. In the Targeted Killings case, the Israeli Supreme Court established that a state of belligerency exists when it determined:
“that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter “the area”) a continuous situation of armed conflict has existed since the first intifada.”
Israel routinely submits formal complaints to the UN “as if” Hamas is a full member state with obligations under the UN Charter and international law. Israel officially designated Gaza an “enemy entity” after it had privately confided to the United States government that it would be would be “happy” if Hamas took over because the IDF could then deal with Gaza as a hostile state. Despite the fact that Israel has pursued a deliberate policy of isolating and separating Gaza from the West Bank, Israel’s representative at the UN asked who exactly is the “Palestinian side” that should follow-up on the Goldstone report in conducting an investigation? The Parliamentary Union of the Organization of the Islamic Conference member states have urged the international community to recognize Hamas. Russia and Turkey have been criticized by Israel for suggesting that Hamas be included in the Middle East Peace process. Despite the fact that the majority of UN member states have formally recognized the State of Palestine, Israel still insists that it does not exist. Therefore, the Palestinian community as a whole does not enjoy the protections contained in Article 2(4) of the UN Charter, which prohibit the threat or use of force against the territorial integrity or political independence of any state or territory delimited by armistice lines. ________________
Since the election of Hamas, I have been “The Secretary-General’s Personal Representative to the Palestinian Authority” for about ten or fifteen minutes in two phone calls and one handshake. …I could live with the arrangements until the point came when the Quartet started taking positions which are not likely to gather a majority in UN bodies, and which in any case are at odds with UN Security Council resolutions and/or international law or, when they aren’t expressly so, fall short of the minimum of even-handedness that must be the lifeblood of the diplomatic action of the Secretary-General.
John Dugard reported that UN participation in the Quartet under such circumstances was completely improper:
In 2004 the International Court of Justice handed down an advisory opinion in which it condemned as illegal not only the construction of the wall but many features of the Israeli administration of the Occupied Palestinian Territory. The advisory opinion was endorsed by the General Assembly on 20 July 2004 in resolution ES-10/15. Since then little effort has been made by the international community to compel Israel to comply with its legal obligations as expounded by the International Court. The Quartet, comprising the United Nations, the European Union, the United States of America and the Russian Federation, appears to prefer to conduct its negotiations with Israel in terms of the so-called road map with no regard to the advisory opinion. The road map seems to contemplate the acceptance of certain sections of the wall in the Occupied Palestinian Territory and the inclusion of major Jewish settlements in the Occupied Palestinian Territory in Israeli territory. This process places the United Nations in an awkward situation as it clearly cannot be a party to negotiations that ignore the advisory opinion of its own judicial organ.
In a subsequent report Dugard advised that Israel’s occupation had taken on ominous characteristics of collective punishment, colonialism and apartheid. Worse still, he noted that the Quartet had taken Israel’s side and was behaving like a co-belligerent:
Gaza has become a besieged and imprisoned territory as a result of the economic sanctions imposed on the Occupied Palestinian Territory by Israel and the West, following Hamas’ success in the January 2006 elections… To aggravate matters the Quartet has gone along with this policy of political and financial isolation. …In effect, the Palestinian people have been subjected to economic sanctions – the first time an occupied people have been so treated. This is difficult to understand. Israel is in violation of major Security Council and General Assembly resolutions dealing with unlawful territorial change and the violation of human rights and has failed to implement the 2004 advisory opinion of the International Court of Justice, yet it escapes the imposition of sanctions. Instead, the Palestinian people, rather than the Palestinian Authority, have been subjected to possibly the most rigorous form of international sanctions imposed in modern times.
The most pressing problem is not that Hamas or Fatah lack legitimacy with the Palestinian people, or whether there ought to be one state or two. It is that the UN has been Israel’s willing accomplice in permitting acts to be perpetrated against the Palestinians that international law would otherwise prohibit if they had been directed toward another State.