Category Archives: United Nations

Reasons to support UNRWA-USA

My family and friends know I’m soliciting donations for my #Gaza5K fundraising campaign to help UNRWA provide critical mental health services to the refugee children and their families in Gaza. This is my fourth year participating in the #Gaza5K and it’s never been this urgent.

Part of the urgency comes as a result of Trump’s decision to withhold the lion’s share of the U.S. annual contribution to UNRWA. His Administration thinks that will put pressure on the Palestinians to accept the “Deal of the Century”. It won’t. It will only add untold misery to the lives of refugees whose basic existence (especially in Gaza) has been called into question after eleven (11) years of the suffocating siege and blockade.

Another part of the urgency I’m feeling comes from friends and solidarity activists who understandably are trying to do the best they can given their shrinking pocketbooks and the myriad of competing organizations seeking their help.

We all need to work together to lift up and support all of these worthwhile organizations who are helping Palestinian refugees in Gaza and elsewhere. We all need to think creatively.

Here’s some information about UNRWA-USA which might be helpful in your deliberations about how to focus your fundraising efforts most effectively.

  • UNRWA USA is a 501(c)(3) registered with the IRS and your donations are tax-deductible.
  • 91% of all donations made through UNRWA USA directly support UNRWA’s work for Palestine refugees.
  • UNRWA USA receives platinum, the highest rating for transparency, accountability, and administration from Guidestar. Of every dollar spent, 91 cents goes toward helping Palestine refugees. Just 6 cents of every dollar is spent on fundraising costs and 3 cents on operations. The UNRWA USA website has all of the 990 tax forms available for viewing and downloading.
  • The majority of UNRWA’s annual budget comes from voluntary contributions from donor states, such as the United States, the European Commission, the United Kingdom, and Nordic States, individual donors, and NGOs. Reductions in donor states’ contributions due to the slow economic recovery, and the ongoing crises in Gaza and Syria, have left UNRWA with significant budget shortfalls, making contributions from private donors, such as individuals and foundations, all the more crucial.
  • More than half of UNRWA’s regular budget is devoted to education. UNRWA believes that education is essential to Palestinians’ future and to stability in the region. UNRWA’s education programs aim to encourage a tolerant and empowered Palestinian population who can serve as partners in peace.
  • UNRWA is a direct service provider, it doesn’t contract out its work to any third parties, and 99% of the 33,000 person staff across Lebanon, Jordan, Syria, and Palestine, are refugees themselves, so the admin costs go toward paying the salaries of refugees who are support families of 5+ people. UNRWA’s staff works tirelessly to uplift their communities while facing the same hardships as the people they serve — sometimes even risking their lives.
  • UNRWA is the most trusted way to help Palestine refugees. In fact, the United States government has historically been the single largest donor. In light of the recent funding crisis, donating provides urgently needed assistance and shows our government that Americans care about Palestine refugees — and that it needs to continue supporting them.

In May 2018, both of my US Senators from New Mexico signed on to a letter written by Senator Bernie Sanders urging Secretary of State Mike Pompeo to restore the funding to UNRWA. I urge you to check the letter to see whether your US Senator signed on. You may contact Congress using UNRWA USA’s online form here.

And please donate to my #Gaza5K campaign if you haven’t already, and share it with your friends on social media or email.

 

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Filed under Gaza, People, Uncategorized, United Nations

Rising above the cacophony

The cuts in Gaza are “making an intolerable humanitarian crisis even more life-threatening,” said UNRWA spokesman Chris Gunness. He added: “Now the very organization mandated specifically to provide lifesaving services is being forced to cut service provisions. It’s heartbreaking.”

Gaza boys flag beach

My fourth year raising donations for the #Gaza5K walk/run fundraiser for Gaza, and you would think I’d be a professional by now and know all the tricks.

This year is most definitely the toughest — both for the refugees in Gaza and for soliciting donations. In the past, I’ve raised between $1,000 and $2,000 for UNRWA-USA. However, Trump’s decision to significantly reduce the U.S. share of UNRWA’s budget has sparked a crisis in Gaza and I’ve stretched my goal to $3,000. I’m going to have to think outside of the box.

Please check my fundraising page here, share it & contribute if you can.

The situation in Gaza has reached a state of “collapse,” a Palestinian engineer told me a couple of weeks ago. He’s worked for UNRWA in Gaza for 13 years, and received his pink slip the day we talked, notifying him that his job ends in December. Like many of his colleagues who also learned the same news, he has a family to support. The stress and worry about the future are grinding them down.

running 1The Washington Post reported on July 25th: The United States has provided just $60 million for UNRWA this year, compared with $360 million last year. The reduction in funding came after President Trump criticized the money provided to the Palestinians even though they were “no longer willing to talk peace.”

 

Unless UNRWA can plug the funding gap, the agency has said it may have to cut essential health and education programs, and it has warned in particular that it may have to delay the start of the school year for 526,000 children in the agency’s schools.

Please check my fundraising page here, share it & contribute if you can.

So what are my thoughts outside of the box for raising $3,000 by mid-September?

  • I’m asking readers of my blog to contribute any amount, small or large. I’m more interested in the number of contributors than I am of the size of your donation. $5, $10, $25 helps a lot.
  • I’m asking readers of my blog to share this fundraising appeal with friends and family, and post it to your social media.
  • I’m making phone calls to people because a personal ask is sometimes more effective than an anonymous request on social media.
  • I’m checking with alternative media in ABQ to see if I can publish an appeal in the weekly papers in Albuquerque and Santa Fe.
  • I’m circulating my fundraising campaign to the traditional Palestine solidarity activist groups to see if they will pitch in.
  • I’m planning an event or party in Albuquerque in early September to bring people together, update them on the collapsing humanitarian crisis in Gaza, and ask for their contributions.
  • If I need to, I may have to find something of value in my storage unit to sell to make up the difference.

If you have other ideas outside of the traditional fundraising box, please let me know.

Please check my fundraising page here, share it & contribute if you can.

 

 

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Filed under Gaza, Peaceful, Uncategorized, United Nations

Magical thinking

Donald (you know which Donald) wants to make the “deal of the century” in the Middle East and he’s assigned that task to his son-in-law, Jared Kushner.

Here’s what we know about the “deal” thus far.

  • Make the issue of East Jerusalem as the capital of the future State of Palestine disappear by moving the US Embassy to Jerusalem, and declaring Jerusalem the undivided capital of Israel. (See here.) No capital for Palestine, no problem.
  • Strip the more than 2 million Palestinian refugees in Jordan of their status as refugees, and pay Jordan to absorb them as new citizens of Jordan. That would solve the ‘right of return’ problem, at least for those 2 million Palestinians. (See here.)  No refugees in Jordan, no problem.
  • Dissolve the U.N. agency (UNRWA) that was created in 1949 to provide relief to the Palestinians displaced by the creation of the State of Israel. (See here.) No UN agency requiring funding to sustain the refugees, no problem.
  • Redefine who qualifies as a refugee to include only those individuals who were displaced 70 years ago, not their descendants. Of course, this would drastically reduce the refugee population which is around 5 million, nearly one-third of whom live in camps across Jordan, Lebanon, Syria, the West Bank, and Gaza. (See here.) No descendants of Palestinian refugees to be concerned about, no problem. JUST WAIT THEM OUT AND THOSE PESKY REFUGEES FROM 70 YEARS AGO WILL DIE.
  • Provide aid to the Palestinians in a way that makes clear that the international community does not recognize the vast majority of Palestinians who are currently registered as refugees are deserving of refugee status. (See here.) Again, no refugees, no problem.

Lest you think this is all magical thinking, H.R. 6451 – UNRWA Reform and Refugee Act of 2018 was introduced in July and would accomplish many of these points pushed by Jared Kushner.

By any objective measure, this is a war between the U.S. Congress and Palestinians with a clear goal to erase the impediments to the “deal of the century”. No refugees, no UNRWA, no capital in Jerusalem, no ‘right of return’ – such a headache for Israelis to contemplate – this deal will certainly fall right into place.

And Congress wants to ensure that the State of Israel maintains a military advantage which translates on the ground to Israeli snipers shooting and killing Palestinian journalists, nurses, doctors, women and children (some in the back, others who were merely standing and observing) — a total of 156 since the weekly protest marches at the Gaza fence began in March this year.

iStock 20492165 MD - American and Israeli flags

America and Israel flags

My delegation from New Mexico (Heinrich, Lujan-Grisham, Lujan and Pearce) have signed on as cosponsors to H.R. 5141 and S.2497 – United States-Israel Security Assistance Authorization Act of 2018 which states in part:

It is the policy of the United States to ensure that Israel maintains its ability to counter and defeat any credible conventional military or emerging threat from any individual state or possible coalition of states or from non-state actors, while sustaining minimal damages and casualties, through the use of superior military means, possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical characteristics are superior in capability to those of such other individual or possible coalition states or non-state actors.

(1) The quantity and type of precision guided munitions that are necessary for Israel to combat Hezbollah in the event of a sustained armed confrontation between Israel and Hezbollah.

(2) The quantity and type of precision guided munitions that are necessary for Israel in the event of a sustained armed confrontation with other armed groups and terrorist organizations such as Hamas.

(3) The resources the Government of Israel can plan to dedicate to acquire such precision guided munitions.

(4) United States planning to assist Israel to prepare for the sustained armed confrontations described in paragraphs (1) and (2) as well as the ability of the United States to resupply Israel in the event of such confrontations described in paragraphs (1) and (2), if any.

Read this language carefully and it’s clear that the U.S. Congress wishes to re-write the rules of war, and international humanitarian law, by authorizing the State of Israel to preemptively strike anyone (civilians included) who, in their sole discretion, poses a threat.

I suspect that many members of Congress don’t understand what they’ve signed onto, and they trust AIPAC’s propaganda. But the words speak for themselves, and anyone who values the rule of law must remove their name as a cosponsor.

That’s the message I’m sending to my delegation from New Mexico.

Palestinian President Abbas condemned the ‘deal of the century’ as the ‘slap of the century’.

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Iftar for Gaza

Ramadan is a holy time for Muslims around the world when they celebrate the moment the Koran was unveiled to Muhammad. It’s a time of fasting, praying and reflection. It’s also a time to forgive and ask for forgiveness, which I find very healing. Whether Muslim or not, the world would be a better place if we followed this instruction.

So I ask forgiveness from friends, family and anyone I have hurt this past year. And I forgive those who have slighted me, hurt me or disappointed me.  A new year and a new beginning.

IFTAR for GAZA

To honor my friends in Gaza and to raise funds for UNRWA-USA, I organized an Iftar in Albuquerque with friends and neighbors. The Iftar is the meal to break the daily fast after sunset.

Laura Stokes and good food

We met at Sahara Restaurant on Central Avenue for delicious food — Basmati rice, falafel, hummous, dolmas, shawarnah, and fattoush salad. As I watched my guests serving themselves, I had a flashback to many of the families in Gaza who served me wonderful meals — too numerous to count.  I wish I could have bridged the miles and shared my Iftar with them.

Samia Assed 3

Samia Assed provided a touching introduction to Ramadan, the significance of the Iftar, and why zakat (donations) is considered a very important part of Islam. She discussed the crisis in Gaza and how difficult life is for many families. Since Trump has decided to reduce the U.S. contribution to UNRWA by 83%, the only lifeline that many Palestinians must rely on for their basic sustenance is in serious danger.

Hence, the reason for my Iftar.

For $150, UNRWA-USA can provide a package providing enough flour, rice, whole milk, oil, chickpeas, lentils and protein-rich sardines to feed a family for the summer. My goal is to raise $1500 to help 10 families in Gaza.  Thanks to generous friends, I’ve raised enough to feed 7 families and will continue reaching out to the community near and far until I meet my goal. Online donations are graciously accepted here.

This was a great chance to network. Laura Stokes announced that PDA will be showing the film Radiance of Resistance,  the story of nonviolent persistence and resistance by the Palestinian people against the theft and occupation of their lands.  This film features the courageous actions of two Palestinian girls, one of whom is now in an Israeli prison.   

June 13, 2018
First Unitarian Church
3701 Carlisle Blvd. NE Albuquerque
5:30 PM MINGLE, 6:00 PM PROGRAM

Thank you friends!   Your hearts and words at the Iftar cheered me and provided me more sustenance than you can ever imagine.

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Filed under Peaceful, People, Spiritual - Religion, United Nations

“Occupation” or “Colonization”?

Professor and historian Ilan Pappe is well-respected and condemned at the same time. He’s one of the new historians who has brought to light the ugly truth of the Zionists’ cleansing and colonization of Palestine.  His book, The Ethnic Cleansing of Palestine, is a must read for anyone who truly wants to learn about the history of Israel / Palestine.

Unfortunately, I must disagree with Professor Pappe’s current call to jettison the term “occupation” in favor of “colonization”.  Listen to his explanation here.

He’s absolutely correct …. an occupation should be considered a short-term, temporary state of affairs, and Israel’s 50-year occupation of Palestine has far-exceeded the limits of a lawful occupation.

But jettisoning the term “occupation” is not the answer. Under international law, the occupier has responsibilities and duties to those subjected to his occupation. Under international law, the victims of occupation have rights and claims against the occupier.

The State of Israel has been waging a stealth lawfare campaign for many years to convince the world that it is not occupying Palestine.

The answer is not to cave and agree with Israel that there is no occupation.

Instead, Professor Michael Lynk has the answer.  He’s the U.N. special rapporteur for the Palestinian territories.  Professor Lynk is urging the United Nations to examine Israel’s prolonged occupation to determine if it is an unlawful occupation.  This is the right strategy to pursue in my opinion.  I hope Professor Pappe and others concerned about Israel’s prolonged occupation will read Professor Lynk’s report, and join his effort.

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Lynk recommends:

The Special Rapporteur recommends that the Government of Israel bring a complete end to the 50 years of occupation of the Palestinian territories in as expeditious a time period as possible, under international supervision.

The Special Rapporteur also recommends that the United Nations General Assembly:

  • Commission a United Nations study on the legality of Israel’s continued occupation of the Palestinian territory;
  • Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;
  • Consider commissioning a legal study on the ways and means that UN Member States can and must fulfill their obligations and duties to ensure respect for international law, including the duty of non-recognition, the duty to cooperate to bring to an end a wrongful situation and the duty to investigate and prosecute grave breaches of the Geneva Conventions.
  • Consider the adoption of a Uniting for Peace resolution with respect to the Question of Palestine, in the event that there is a determination that Israel’s role as occupier is no longer lawful.

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Filed under Israel, Occupation, People, Uncategorized, United Nations, Video

Stop talking about the “border”

We have a right to defend ourselves” just as any other sovereign nation, proclaims Israel’s leaders as they give the order to use lethal force against peaceful protesters on the other side of the fence with Gaza.

Whether Israel is correct depends on two things:

(1) Does international human rights law apply to these facts or international humanitarian law (rules of war)? The question has been presented to Israel’s High Court of Justice.

Michael Lynk, the special rapporteur on human rights in the occupied Palestinian territory, said the killings on Monday reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.”

Mr. Lynk said that protesters appeared to pose no credible threat to Israeli military forces on the Israeli side. Under humanitarian law, he said, the killing of unarmed demonstrators could amount to a war crime, and he added that “impunity for these actions is not an option.”

(2) Is the fence between Gaza and Israel an international border or a fence separating two groups of people who each claim sovereignty over their territory?

You would be excused if you erroneously thought the fence was an international border because much of the mainstream media has adopted Israel’s framing of the issue.  Israel wants us to believe it has a border with Gaza; that since its withdrawal in 2005 the Gaza Strip is no longer occupied territory; and the fence represents an inviolable demarcation between Israel and “those people we prefer to call Arabs, not Palestinians.”

If Israel’s argument was correct, then the right to defend that border might have some merit, leaving aside the important issues of “Right of Return” and method of defense.

However, we succumb to Israel’s narrative at the expense of jettisoning the law of belligerent occupation, international humanitarian law and the facts that led to the establishment of Israel 70 years ago.

israel_palestine_conflict

The current borders of the State of Israel are a result of war and of diplomatic agreements. The borders with Jordan and Egypt have been confirmed by peace treaties. The border with Lebanon resulted from the 1949 Armistice Agreement.  The borders with Syria and the Palestinians in the West Bank and Gaza have never been settled. In fact, Israeli Legislators have been passing laws to unilaterally extend Israel’s sovereignty into the West Bank, and they claim they no longer occupy the Gaza Strip. The U.N. and the international community have not recognized Israel’s unilateral pronouncements.

It’s time the mainstream media got the facts straight. Words matter.

Since the State of Israel does not have an internationally recognized border with the Palestinians in Gaza, the actions of both the Israeli military and the Palestinian protesters take on a significantly different cast.

The Palestinians are not trying to cross an inviolable border but rather exercising their Right of Return enshrined in Resolution 194 adopted by the United Nations on December 11, 1948.

The Israeli military is not protecting its sovereign border but rather killing unarmed protesters that have been caged in the world’s largest open air prison.

29425644_419847478469077_7507957825339916288_n

The State of Israel may have superior military weapons, thanks in large measure to American taxpayers, but we should not capitulate to Israel’s false narrative.

There is no internationally recognized border between Israel and Gaza. It’s just a fence; actually two fences.  The New York Times is beginning to set the record straight. (May 16, 2018)

 

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Filed under Gaza, Israel, Israel Defense Forces, Media, People, Uncategorized, United Nations

Prolonged Occupation or Illegal Occupant?

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Michael Lynk’s commentary was first published on May 16, 2018 on EJIL: Talk! …. the Blog of the European Journal of International Law.  He raises a novel argument — that the international legal community should consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal line, resulting in an illegal occupation. Professor Lynk posits a 4-part test to determine the answer. His commentary is reprinted below in full.*

Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. He teaches labour law, human rights law and constitutional law. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967

“An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. BenvenistiO. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation(2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United NationsB’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalemand Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.”

*     I didn’t ask permission to republish this commentary, preferring to ask forgiveness later if I’ve overstepped.  The original commentary can be accessed here.

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