Tag Archives: S. Michael Lynk

UN Special Rapporteur urges Israel be held accountable

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Special Rapporteur S. Michael Lynk

The community of nations should start using some of the legal sticks available in its basket to push the State of Israel into ending the occupation of Palestine.  That’s the bottom line according to the U.N. Special Rapporteur who is calling for global boycott, divestment and sanctions (BDS) against the State of Israel.

Professor S. Michael Lynk, a Canadian law professor, is no newbie to Israel’s occupation. As the UN Special Rapporteur for human rights in the occupied territories, he asked  — When is enough, enough under international law?  He answered it in his report to the U.N. General Assembly in October 2017. I summarized his report here.

In the 22 page report, which should be required reading for everyone interested in the future of Israel and Palestine, Professor Lynk opened a new (legal) chapter in Israel’s occupation of East Jerusalem, the West Bank, and the Gaza Strip. He made the case for recognizing Israel as an illegal occupier, and called on the international community to use all of the tools in its toolbox to end this illegal occupation.

The next year, EJIL: Talk! …. the Blog of the European Journal of International Law published Professor Lynk’s commentary where he urged the international legal community to consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal red line, resulting in an illegal occupation. Professor Lynk posited a 4-part test to determine the answer. His commentary was reprinted on my blog here.

The Great MarchIn the Spring of 2018, when Palestinians in Gaza launched the Great Return March and protested at the fence line between Israel and Gaza, Israel responded with lethal force. Lynk said the killings reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.” The 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.” (I wrote about that here.)

Although Professor Ilan Pappe wants the world to jettison the term “occupation” in favor of “colonization” in the context of Israel – Palestine, Professor Lynk has taken a different tack. He recommends that the U.N. declare the occupation illegal. See more about that here.

In March 2019, the UN Commission of Inquiry issued its findings and recommendations on the deadly protests in Gaza. Professor Lynk agreed and warned that —

As the one-year anniversary of the “Great March of Return” on 30 March 2019 draws closer, and in view of the ever-deteriorating economic and humanitarian situation in Gaza, the Special Rapporteur expressed concern over possible rising levels of violence if no firm action was taken to pursue accountability and justice. “Continuing to suffocate Gaza is a blot on the world’s conscience and a recipe for more bloodshed,” Lynk said. “Restoring Gaza and ensuring justice and accountability would give the region hope that a better Middle East is possible.”

ACCOUNTABILITY

For many years, Palestinians and human rights activists have been beating the accountability drum urging the world to hold Israel accountable for its responsibilities as an occupier and its flagrant violations of international humanitarian and human rights law. Beyond the many non-binding resolutions at the U.N. over the years, there has been no credible and sustained effort to hold Israel accountable. (The U.S. is a very big reason why the U.N. has failed — but that’s for another blog post.)

2013-05-05-21-01-541On his most recent tour to the Middle East, Professor Lynk held meetings in Jordan because Israel refuses to allow him to visit Palestine. He believes that unless Israel is pressured to do the right thing, it will continue to deepen and further entrench the occupation.

Professor Lynk recommends that the UN members should consider everything from cutting cultural ties with Israel to suspending its membership in the world body.

He emphasized the role of the EU, which accounts for some 40 percent of Israel’s external trade and could make the flow of Israeli goods and services to the 28-nation bloc contingent on policy shifts that help Palestinians.

Furthermore, Lynk urges the speedy publication of a long-awaited blacklist of Israeli and international companies that profit from operations in Israeli settlements in the occupied West Bank. He also wants prosecutors at the International Criminal Court (ICC) in The Hague to hasten its preliminary investigation of allegations of rights abuses by Israel and Hamas on Palestinian territory, which began in 2015.

Although Professor Lynk’s role as UN Special Rapporteur carries no enforcement power or authority, he’s certainly using his responsibility to examine and report on the occupation to the fullest extent possible. Now civil society and solidarity activists must amplify his call for accountability. 

 

Mr. Michael Lynk was designated by the UN Human Rights Council in 2016 as the Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967. The mandate was originally established in 1993 by the then UN Commission on Human Rights. Professor Lynk is Associate Professor of Law at Western University in London, Ontario, where he teaches labour law, constitutional law and human rights law. Before becoming an academic, he practiced labour law and refugee law for a decade in Ottawa and Toronto. He also worked for the United Nations on human rights and refugee issues in Jerusalem.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

 

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Accountability needed to end excessive use of force against Palestinian protesters in Gaza, says UN expert

The following press release copied verbatim emphasizes ACCOUNTABILITY but who will hold Israel accountable?

GENEVA (5 March 2019) – The international community must take immediate and decisive action to ensure that Israel cease its violations of international law when responding to the ongoing demonstrations at the Gaza fence, a UN human rights expert said.

The Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, Michael Lynk, welcomed the findings and recommendations of the Commission of Inquiry into the deadly 2018 Palestinian protests in Gaza.

The Commission, which was mandated to investigate violations of international humanitarian and human rights laws, presented its findings on 28 February 2019.

“It found reasonable grounds to believe that, in all but two of the 189 fatalities investigated, the use of live ammunition by Israeli security forces against demonstrators was unlawful,” Lynk said. “Accordingly, I support the Commission’s call for accountability with respect to those who used lethal fire unlawfully, and for those who drafted and approved the rules of engagement which permitted this illegal use of lethal fire.”

Among the dead were 35 children, 3 paramedics and 2 journalists. Another 6,106 demonstrators were wounded during the demonstrations.

The Special Rapporteur noted that, since the start of 2019, Israeli security forces have continued to respond to protests along the fence with tear gas, rubber coated bullets and live ammunition. As a result, a further five children have been killed in the past two months.

One such incident saw the killing with live ammunition of two boys (aged 14 and 17) on 8 February 2019, and following the protest, the death on 12 February 2019 of a 16-year-old Palestinian boy who was hit by a tear gas canister in the head. According to human rights organisations, the three boys posed no threat to Israeli forces. More recently, on 22 February 2019, a 14-year-old Palestinian boy was killed by live ammunition during a protest east of Gaza city. 

Lynk reiterated that international human rights instruments pertaining to law enforcement provide that firearms may only be used against persons if there is an imminent threat to life or risk of serious injury. He added that, in the context of an occupation, the killings at the Gaza fence resulting from the unlawful use of force might well constitute willful killings of the protected population, which constitute a grave breach of the Fourth Geneva Convention and potentially a war crime under the Rome Statute.

“We must ensure legal accountability and end impunity for the excessive use of force against largely peaceful Palestinian demonstrators, and the resulting arbitrary deprivation of life,” said the Special Rapporteur. “This is a grave violation of their right to life and it abrogates their guaranteed freedoms of expression, peaceful assembly and association.”

Lynk also endorsed the recommendations of the Commission that the de facto authorities in Gaza failed in their duties to prevent the indiscriminate use of incendiary kites and balloons, which caused economic damage and civilian fear in southern Israel. 

The Special Rapporteur welcomed the attention given by the Commission of Inquiry to the dire living conditions in Gaza, which have fueled the large demonstrations over the past year. He endorsed the Commission’s call for an immediate lifting of the Israeli blockade of Gaza, which has repeatedly been described by recent UN Secretary-Generals as a prohibited form of collective punishment of the people of Gaza. In particular, he noted the dire impact of the blockade on the Gazan health system, which has significantly contributed to the deteriorating quality of health in the Strip. 

As the one-year anniversary of the “Great March of Return” on 30 March 2019 draws closer, and in view of the ever-deteriorating economic and humanitarian situation in Gaza, the Special Rapporteur expressed concern over possible rising levels of violence if no firm action was taken to pursue accountability and justice. “Continuing to suffocate Gaza is a blot on the world’s conscience and a recipe for more bloodshed,” Lynk said. “Restoring Gaza and ensuring justice and accountability would give the region hope that a better Middle East is possible.”  

Mr. Michael Lynk was designated by the UN Human Rights Council in 2016 as the Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967. The mandate was originally established in 1993 by the then UN Commission on Human Rights. Professor Lynk is Associate Professor of Law at Western University in London, Ontario, where he teaches labour law, constitutional law and human rights law. Before becoming an academic, he practiced labour law and refugee law for a decade in Ottawa and Toronto. He also worked for the United Nations on human rights and refugee issues in Jerusalem.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

 

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“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.

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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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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.

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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.

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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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Prolonged Occupation or Illegal Occupant?

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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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Jewish Federation’s astonishing admission to New Orleans City Council

In an odd twist of events, on January 11, 2018, the New Orleans City Council approved a non-binding resolution to review the city’s investments and contracts to ensure that they are consistent with human rights; and two weeks later the city council unanimously withdrew the resolution. The stated reason was to correct a procedural flaw in its passage.

There’s more to this story than meets the public’s eye. But first, read the resolution, reprinted in full below.

RESOLUTION

NO. R-18-5

CITY HALL: January 11, 2018

BY: COUNCILMEMBERS CANTRELL, BROSSETT, GRAY, HEAD AND WILLIAMS

WHEREAS, the City of New Orleans (hereinafter the “City”) was declared to be a Welcoming City on October 1, 2015, to create a more inclusive, receptive city environment for all local populations; and

WHEREAS, the City commits itself to protect, respect, and fulfill the full range of inherent human rights for all, as set forth in the Universal Declaration of Human Rights and numerous other international human rights instruments; and

WHEREAS, the City enshrined these values in Ord. No. 19278 M.C.S.; 25700 M.C.S.; Code of Ord. Sec. 86-4. (Safeguard all individuals within the city from discrimination because of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital status, age, physical condition or disability in connection with employment, housing, public accommodations, financial practices, and credit transactions; to protect their interest in personal dignity and freedom from humiliation; to make available to the city their full productive capacities in employment; to secure the city against domestic strife and unrest which would menace its democratic institutions; to presevre the public safety, health, and general welfare; and to further the interest, rights, and privileges within the city); and

WHEREAS, the City has pledged to meet its commitments to rewarding workplace diversity, promoting local industry, protecting the environment, and promoting equity through compliance with civil rights; and

WHEREAS, consistent with its responsibilities to its residents, the City of New Orleans, has social and ethical obligations to take steps to avoid contracting with or investing in corporations whose practices consistently violate human rights, civil rights or labor rights, or corporations whose practices egregiously contradict efforts to create a prosperous, educated, healthy and equitable society; NOW, THEREFORE

BE IT RESOLVED, That the City Council encourages the creation of a process to review direct investments and contracts for inclusion on, or removal from, the City’s list of corporate securities and contractual partners, according to the values of the City as referenced in this Resolution.

THE FOREGOING RESOLUTION WAS READ IN FULL, THE ROLL WAS CALLED ON THE ADOPTION THEREOF, AND RESULTED AS FOLLOWS:

YEAS: Brossett, Gray, Guidry, Ramsey, Williams – 5

NAYS: 0

ABSENT: Cantrell, Head – 2

AND THE RESOLUTION WAS ADOPTED.

Not a word about Israel, Palestine, BDS, or human rights violations in the occupied Palestinian territories. Not a peep about which investments or contracts the city should review. But as soon as the ink was dry, the Jewish Federation of New Orleans was down at City Hall lobbying councilors to rethink their support for this pro-Palestinian resolution because they found the resolution’s “anti-Israel sentiment was offensive.” And the elected officials fell right into line.

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New Orleans Mayor-Elect LaToya Cantrell ((Photo by Brett Duke, NOLA.com | The Times-Picayune) )

Mayor-Elect Cantrell explained her reason for rescinding the resolution.

Compounding the procedural deficiencies in the adoption of this resolution, [suspension of the rules is allowed via Rule 17] its passage has shrouded the city in an undesired and damaging falsehood. Statements from outsiders now claim that New Orleans is now one of the largest cities in the United States supportive of BDS (Boycott, Divestment and Sanctions), a movement aimed at delegitimizing the State of Israel. This is totally inaccurate, untruthful and does not reflect the values of New Orleans. We are a city that is welcoming, and open to all. Well intentioned actions can be taken out of context by others for their own political benefit, with negative connotations that overshadow any original motives; I believe that is what happened with this resolution.

As mayor-elect, I am committed to leading a city that champions civil and human rights, democratic engagement, and transparency. While I will continue to examine issues of civil rights and fair contracting, I want to unequivocally reiterate that I am neither supportive of the BDS movement nor in any way hostile to the Jewish community or the State of Israel.

Clearly, the Mayor-elect did not hear from the UN Special Rapporteur S. Michael Lynk (Canada), who recently called on the international community to recognize Israel’s prolonged occupation of Palestine as unlawful under international human rights law and to use the tools in its toolbox to bring an end to the occupation. (Photo on Left)

The Mayor-elect didn’t hear from Amira Hass, the Israeli journalist who has written extensively about the occupation and its impact on both Palestinians and Israelis, and most recently about Israel’s decision to blacklist people and organizations that support BDS. See her Jan. 8 column.  (Photo top right).

I suspect the Mayor-elect might not know Gideon Levy, another Israeli journalist, who has written for many years about Israel, Palestine, the occupation and BDS (photo middle right), nor Rabbi Arik Ascherman (photo bottom right) who lives in Israel and after 21 years leading Rabbis For Human Rights, recently founded “Torat Tzedek Torah of Justice,” dedicated to the human rights of Israeli single parent moms and Palestinians alike, because the Torah teaches Jews that every human being is created in God’s Image.

That a non-binding resolution — calling for the city to review its investments and contracts to ensure they’re consistent with the city’s support for human rights — might impact the State of Israel’s occupation of Palestine, is a damning confirmation by the Jewish Federation of New Orleans that at least some American Jews know that Israel’s dehumanizing treatment of Palestinians is contrary to international human rights law.

THINK ABOUT THAT FOR A MOMENT!

I hope New Orleans Mayor-elect and the full City Council will reflect on this unintended admission by the Jewish Federation, and take it upon themselves to learn more about the non-violent BDS movement whose goal is not to “delegitimize Israel” (as the Mayor-elect seems to believe) but to focus the world’s attention on the human rights of Palestinians who have lived under Israel’s occupation for half a century. The City of New Orleans needs to get on the right side of history.

Loss of Land

 

 

 

 

 

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Action, not more words

Lord Balfour

Lord Arthur Balfour

Most Americans don’t give a squat about diplomacy and history, so the 100th year anniversary of the Balfour Declaration won’t register much more than a tick in U.S. papers and social media.  The U.S. Congress will be quietly considering a resolution in support of this abomination in the next few weeks.

On the other hand, the history and import of Balfour’s infamous letter, giving a homeland to the Jews in the land of Palestine, is drawing a lot of attention in the UK and Palestine.

On November 2, 1917, Lord Balfour wrote:

“His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

The Zionists considered this short statement (which they drafted in large measure) their first and biggest diplomatic success. From these 67 words, sprang the Zionists’ dream and the Palestinians’ nightmare. Today, a century later, it is clear that the first part of Lord Balfour’s declaration has been realized, but not the second.

Many are calling attention to this failure, walking 3,400 km. from London to Jerusalem to drive the point home. 

Today (Nov. 2, 2017) a new declaration was presented to the Consulate-General in Jerusalem with a request that it be passed on to the Foreign Secretary, Boris Johnson, and to the Prime Minister, Theresa May.

Preamble
We have walked more than 3,400 kilometres to be here today. We have walked in penance and in solidarity. We have walked in recognition that the Balfour Declaration led to one people’s freedom and another people’s oppression.

We have walked with our Christian, Muslim and Jewish partners in the Holy Land to hear their witness to the consequences of Balfour. Today, one hundred years after the original Balfour Declaration was made, we propose a new declaration. We offer a ‘new Balfour’ to Her Majesty’s Government, a new 67-word declaration written in the belief that peace will only come through justice and reconciliation.

“Her Majesty’s Government view with favour the establishment in Palestine/Israel of a safe and secure home for all who live there. The nations of the world should use their best endeavours to facilitate the achievement of this objective, it being clearly understood that nothing shall be done which may prejudice the civil, political and religious rights of Palestinians or Jews living in Palestine/Israel or any other country.”

I understand and appreciate the sentiments expressed in this new declaration but it’s naive and, even if everyone agreed with it (especially leaders in the UK, Israel and Palestine), it’s too little, too late.

Rather, world leaders should take note of the report released this week by S. Michael Lynk, a Canadian professor of law and human rights expert, and the UN rapporteur for human rights in the occupied territories. He’s calling for sanctions against Israel to pressure that government to end its military occupation. This is a critical and necessary step to secure justice for the Palestinians, but it’s also important to reaffirm our global commitment to international law and the rule of law.

The “duration of this occupation is without precedent or parallel in today’s world,” the report said. Israel has “driven Gaza back to the dark ages” due to denial of water and electricity and freedom of movement. There is a “darkening stain” on the world’s legal framework because other countries have treated the occupation as normal, and done nothing to resist Israel’s “colonial ambition par excellence,” which includes two sets of laws for Israelis and Palestinians.

Words will no longer suffice a century after Lord Balfour’s declaration. Palestinians need action, not more words.

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