Paperwork, paperwork

(Here's one I prepared earlier.)

Here's PA President Abbas addressing the UN General Assembly, with his application in his hand. It's going to be an interesting few days.

Israeli Settlements are illegal. Points? Questions?

(Israeli settlement of Migron*. Even the Israeli Supreme Court agrees this one is illegal.)

I've been asked a couple of times about whether or not the Israeli settlements built on territory occupied in the 1967 Six Day War are legal, and if not, why not - given that the Israeli Government distinguishes between legal and illegal settlements in the West Bank.

The Israeli Ministry of Foreign Affairs marshals an extensive argument on their website explaining why Article 49(6) of the Fourth Geneva Convention 1949 which forbids an occupying power from "deport[ing] or transfer[ing] parts of its own civilian population into the territory it occupies" doesn't apply in the West Bank, the Golan Heights (and formerly, Gaza). The Israeli MFA's claims that:

"The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted."

This is arguably true but irrelevant. It is interesting that even the Israeli MFA makes the case that ancestors - presumably back to biblical times - present a legal basis for the appropriation of land and the construction of settlements. In legal terms this is a nonsense, and in practical terms it is hopeless - it would appear to give Italians legitimate title to most of the Mediterranean world, for instance.

The Israeli MFA goes on:

"Nor does [Article 49] prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land."

There are at least two problems with these assertions. First, the Israeli MFA in asserting that the territories it occupied in 1967 were "not under the legitimate sovereignty of any state" implies that it was terra nulius. Simply put, this isn't true: in 1967 the West Bank and East Jerusalem were either under the sovereignty of Jordan, or it was illegally occupied by Jordan with rights reverting to the previous legitimate sovereign. (I assume that in this case the previous legitimate sovereign was the UN as the League of Nations mandate was handed back by Britain, though I'd have to do some more work on this.) In any event, the West Bank and the other other occupied territories were not terra nulius - because if they had been, then in 1967 the UNSC would not have passed Resolution 242 calling for the withdrawal of Israeli forces from "territories occupied in the recent conflict".

Second, the record is clear that Israel does appropriate Arab land, and has used it for building settlements. 

In any event, the UN Security Council made clear in 1967 that the Geneva Conventions applied to the occupied territories in Resolution 237, and in 1979 that the settlements are illegal in Resolution 446, OP1 of which reads that the Security Council

 "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 and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East."

Indeed - and the situation has only deteriorated since then. 

*Migron is significant as in a major victory for Peace Now, the Israeli Supreme Court ruled in August 2011 that Migron was illegal and demanded that the Israeli government remove it by April 2012, which is the first time this has happened in the West Bank.

Words have meanings. And Consequences.

(UN General Assembly. Bring your own seat chair. Sit anywhere. Or something.)

Well, hasn't it been an interesting couple of days? If he's achieved nothing else, then PA President Mahmoud Abbas (Abu Mazen) has put the need for a two-state solution back at the centre of the international agenda for the first time in at least the last 12 months - indeed, with the Arab Spring, it's hard to say that even the Middle East has been focussed on Israeli - Palestinian negotiations in 2011. 

I shan't bore you with lots of links to interesting stories: I assume that if you've bothered to read these blog posts, you're probably interested enough in the subject to read a range of views and therefore you hardly need me to drive the point home. And I must stress again that this is an international law blog, rather than a politics blog... which I appreciate may be a fine line to tread, but at base it looks at the legal arguments first, and if it is to make political commentary, to do so second. 

So with that out of the way, I was shocked not by Texas Governor Rick Perry's "Likud right or wrong" speech in which Perry accused President Obama of "appeasement", or by Perry's apparent suggestion that that he wanted Jerusalem “united under Israeli rule” (in contravention to US policy and UNSCR 478 (1980)); Perry seems to be a loud-mouth dimwit, even if he is running for the US Presidency. 

Altogether more shocking is by US House of Representatives Resolution H Res 112-394 introduced on 8 September by Illinois Republican Joe Walsh (below). 

(Annexation? Sure, help yourselves!)

H Res 112-394 enjoys more than 30 co-sponsors, and resolves, 

"That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations."

Supports annexation? Excuse me? And as an implict punshiment for the PA pressing for "unilateral recognition of Palestinian statehood at the United Nations"? Pardon? Really?! Really?!?  

So let's look at the legal issues. All of this, it must be recalled is in territory captured by the Israeli Defence Force in the 1967 Six Day War, and subsequently occupied. Therefore, the controlling law remains the Fourth Geneva Convention (1949) (GCIV), which is binding on all states - including Israel.

  

Annexation 

The UN Charter, in outlawing aggressive wars in Article 2(4), made the acquisition of territory through conquest illegal for the first time in human history. Since 1945, therefore, annexation has also been illegal.*

In Geneva Convention Law, GCIV Article 47 forbids the removal of the population's rights under the Geneva Conventions by "any annexation by the latter of the whole or part of the occupied territory", making annexation not just illegal under the UN Charter, but also making any attempt to implement this illegal policy a crime under Geneva Law, too.

GCIV Article 49 deals with expulsions, evacuations and population transfers in its six paragraphs. It is illegal to permanently move a populations out of their occupied territory, though there are specific rules about evacuation for protection, e.g. in the case of continuing military operations. These evacuations must be temporary, and abide by international safeguards.

(On a tangent, reading Article 49 can be slightly confusing, in that the first five deal with the protection of the population under occupation, and the sixth paragraph prohibits an occupying power from transferring their population into the conquered territory; it is a Art 49(6) that makes all Israeli settlements in the West Bank and the Golan Heights (and prior to 2005, Gaza) unambiguously illegal under international law.** This nearly led Art 49(6) to become its own article in GCIV, but in the drafting conference, it stayed where it is.) 

Annexation as a collective punishment. 

Any annexation of the West Bank would, on the basis of Israeli policy in the area of East Jerusalem that the Israeli Government claims to have annexed, (and which no-one else in the international community accepts, hence the reason that Embassies in Israel are in Tel Aviv, not Jerusalem), be deprived of significant civil and political rights. This amounts to a form of collective punishment, which GCIV Article 33 expressly prohibits, demanding that "No protected person may be punished for an offence he or she has not personally committed."

So has Joe Walsh incited war crimes?

Incite: to stir, encourage, or urge on; stimulate or prompt to action: to incite a crowd to riot (Courtesy of Dictionary.com)

 

It is clear that any Israeli annexation would be unambiguously illegal, and in (i) wrongly asserting that annexation is a "right" of the Israeli state, and (ii) to link this illegal action to an illegal collective punishment, it is arguable that Representative Walsh and his colleagues are indeed inciting such - illegal - action. The question is, would this amount to what the Geneva Convention would describe as "grave breaches"? I'm not sure, and will ask some experts.

However, if it does - and both ICTR and ICTY jurisprudence has cases on incitement - arguably Congressman Walsh and his con-sponsors should be subject to action by the US Government under its obligations laid out in Common Article I of the Geneva Conventions, which requires, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." 

Oops. 

Perhaps someone may want to tell the Congressman.... 

* Only the Indian annexation of the Portugese colony of Goa being broadly recognised by the international community, and with the understanding that this was in effect decolonisation. 

** In a tragic irony, the first paragraph of the Art 49(6) ICRC commentary explains the historical background, and why Art 49(6) was included in the first place:  

"This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent 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. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." 

In other words, Art 49(6) was a direct repudiation of Hitler's policy of Lebensraum settling Germans and ethnic Germans across central and eastern Europe.

Palestinian UN Membership Application

Update: Looks like PA President Mahmoud Abbas will file the paperwork on Friday, after speaking at the UN General Assembly. A fun week in store!

Palestine: the UN's 194th Member?

(PA President Mahmoud Abbas announces his application for UN Membership.

NB: The 1967 Borders includes the Old City; this includes some of the stuff in my helpful visual aide.)

Well, looks like Palestinian Authority President Mahmoud Abbas has decided to go for full UN Membership next week. Back in March, Israeli Deputy Prime Minister Ehud Barak warned that international momentum to recognise a Palestinian State on the 1967 borders constituted a "diplomatic tsunami" - and it appears to be getting ready to break in the next fortnight.

There are two issues to deal with when considering applications for UN Membership - the UN's own membership criteria and the process of obtaining membership. Paradoxically, the process is probably more important (and bizarrely, more interesting) than the criteria - which, as will be seen, can and have been fudged.

(Meanwhile, on the East River...)

So what is the process? Initially, a prospective member applies to the Secretary-General (S-G), including an instrument of willingness to accept the obligations contained within the UN Charter. The S-G then passes this across to the UNSC under Article 4(2) of the UN charter which reads:

"4.2 The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council."

This double-action element requires the UNSC to approve and recommend membership to the UNGA, meaning that any application has to be approved by at least 9 Security Council Members, with no veto thrown by one or more of the Permanent Members. Two things are noteworthy. First, that the UNGA has never rejected a membership application recommended by the UNSC, and second, that an applicant does not become a member until the application has been approved by a two-thirds vote in the UNGA.

Admission as a political, not legal, process

As strange as it may seem to modern eyes where UN membership is assumed to be near universal - Taiwan, Palestine and Western Sahara being the obvious non-members - between 1946 and 1955 membership applications were completely constrained by the Cold War causing States to link applications together. The situation got so bad that in November 1947 the UN General Assembly asked the ICJ for an Advisory Opinion on Admission, which rejected the notion that an application could be rejected for reasons other than the criteria in Article 4(1). The UNGA went further in UNGA Resolution 197/III of December 8, 1948, in effect calling for the UNSC to give up the veto power on applications (a subject that the Security Council has given a stiff ignoring to since then).

During this period, only 9 of 31 membership applications were approved, and the Soviet Union casting 47 vetoes on membership applications in this period. (Recall, that the US didn't use the veto at all until 1972). Ironically, in light of the Obama Administration's statement that it will veto a Palestinian application for UN Membership, the 1948 US Senate Vandenburg Resolution - a key step on the road to establishing NATO - calls in Article 1 for applications to be exempt from the veto.

What criteria can apply?

Article 4(1) sets out the requirements for UN Membership. Prospective UN Members must:

          (i) be a State; 

          (ii) be peace-loving; 

          (iii) accept the obligations of the Charter;

          (iv) be able to carry out these obligations; and
          (v) be willing to do so.

(i) Is Palestine a State - 1933 Montevideo Convention
So the first question is whether Palestine is a "State"? The classical view of Statehood is the 1933 Montevideo Convention on the Rights and Duties of States, which require:

          (i) a permanent population;
          (ii) a defined territory;
          (iii) government; and
          (iv) capacity to enter into relations with the other states.

There is an interesting debate about whether the Montevideo Criteria are still applicable or whether something more amorphous reflects the current position. However, let's apply Montevideo to Palestine. In their application for UN Membership, it is reported that the Palestinian Authority (PA) will be doing so on the basis of the border of June 4, 1967 - ie, the Gaza Strip, East Jerusalem, and the West Bank occupied by Israel in the 1967 Six Day War. 

Within these boundaries, there is a permanent population, including over 500,000 Israeli settlers, whose presence is illegal under the Fourth Geneva Convention, there is a defined territory, the PA is a government of sorts - namely, it has limited powers over a delimited area - and its' writ does not run in Gaza - but is arguably a lot more effective than other UN member state governments - e.g. Somalia's Transitional Federal Government. Finally, the PA is clearly capable of entering into international relations - it has Embassies around the world, and has had UN Observer Status since 22 November 1974.

So even on the Montevideo Criteria, Palestine appears to be a State.

(Unlike Gaddafi's effort, a Green Book to revere: Justice Simma's brilliant Commentary on the UN Charter.)

(ii) Is Palestine "Peace-Loving"?
Of all of the arguments that those who oppose Palestinian UN Membership, this is superficially the most attractive - after all, hasn't there been a stream of terrorist attacks on Israel from Gaza and the West Bank? Certainly there have been some, and rocket attacks from Gaza against civilian targets inside Israel - and vice versa - should be unambiguously condemned. But as Prof. Konrad Ginther as the University of Graz notes in Simma's Commentary,

"With regard to the admission of the large number of new States resulting from decolonization, however, the criterion 'peace-loving State' was of no practical importance at all." (Ginther in Simma, Commentary, p. 182).

On this basis, the criteria is irrelevant, and we can move on. Ginther offers a more detailed explanation of the historical position: 

"More frequently, an applicant State was judged 'peace-loving' or non-'peace-loving' by reference to its current international behaviour, such as non-compliance with UN Resolutions, interference with innocent passage in territorial waters, recourse to peaceful means for the settlement of disputes, and respect for the principle of non-intervention." (Ginther in Simma, Commentary, p. 182).

Given the effort that Israel is putting into defeating a Palestinian UN membership application, it is an interesting exercise to consider whether on these criteria Israel itself could pass the requirement of being a 'peace-loving' nation.  

International good citizenship: (iii) accept the obligations of the Charter / (iv) be able to carry out these obligations / (v) be willing to do so.

It is pretty clear that the PA would comply with these five requirements - at least as well as the least effective of the UN's existing members. So I would argue that none would preclude a Palestinian membership application.  

 (President Obama speaking at Cairo University in 2009, setting out the his Administration's new approach to the Islamic World in general and the Middle East Peace Process in particular. Ah.)

Avoiding the Trainwreck
Given their public statements, it is essentially inconceivable that the Obama Administration could now back down and vote in favour of Palestinian UN membership - even though in my personal view this is the correct legal and policy choice; to do so would look ridiculous and would open the Obama Administration up to further domestic political attack that it is insufficiently supportive of Israel.*

But a veto - especially a solo veto - is far from a zero-cost option for the US. It is clear that a US veto will isolate the US internationally and in particular in the Arab and Islamic worlds, opening Obama in particular up to a reasonable charge of double standards between his support for pro-democratic forces in the Arab Spring, and the continued Israeli occupation of East Jerusalem, the West Bank and blockade of Gaza.

There is another option; the UNSC can refer an application to a Committee on Admission - a process used only once since 1952 in the case of Bangladesh in 1971/72. This provides a route for avoiding the negative fallout for the US and the region occasioned by a US veto, and buys a limited amount of time - probably up to 12 months - for real negotiations to get underway. The NY Times editorial of September 12th suggests that the Quartet (UN, US, EU, Russia) place a map on the table and essentially force both sides to negotiate the land-swaps, water rights and right of return that are at the centre of the final status agreements.  Given the circumstances, therefore, a Committee on Admission and a big-step up in the diplomatic pressure on both sides to achieve a settlement is probably the best of a number of bad options.

Conclusion

Ultimately, the niceties of international law are irrelevant if the Obama Administration has already decided to veto any resolution to allow Palestinian UN Membership. But given the above, if the US wants to veto, then they should be forced to do so alone, and the EU, and in particular Britain and France as fellow P5 members should not offer them any cover. If Palestine qualifies for Membership - and for the reasons outlined above, legally I think that it does - then let the UNSCR fail by 14-1-0 (United States).

*In fact, the Obama May 2011 speech was fair and balanced, and simply reflected the position that everyone else is working to - a two-state solution with agreed land swaps, and final status issues to be negotiated.