Monday, December 3, 2012
From time to time our blog includes guest posts on topics of interest to our readers. We share with you now this post from Dr. Mutaz Qafisheh, a professor of International Law and Director of the Legal Clinic at Hebron University. Your comments on the suggestions are, of course, welcome.
WHAT PALESTINE OUGHT TO DO AFTER BECOMING A STATE ON 29 NOVEMBER 2012?
A PALESTINIAN PRESPECTIVE
Dr. Mutaz M. Qafisheh
Professor of International Law and Legal Clinic Director, Hebron University, Palestine
Ph.D. in International Law, Graduate Institute of International and Development Studies, Geneva
3 December 2012
United Nations General Assembly (UNGA) Resolution 67/19 of 29 November 2012, which overwhelmingly voted for the admission of Palestine as an observer State (138 States in favor vs. 9 States), might be similar to the hundreds of previous United Nations (UN) resolutions if the new move is not followed by a series of measures that should be undertaken in the coming few months by the Palestinians themselves. This note is largely based on a book, entitled ‘Membership of Palestine in the United Nations: Legal and Political Implications,’ that would be published by Cambridge Scolders Publishing in early 2013 (M. Qafisheh, ed., approx. 450 pages).
This note addresses selected measures at the international and local levels, which will enhance access to justice for Palestinian victims of international law violations and further Palestine’s compliance with its international law obligations. It also sheds light on the domestic measures that Palestine should take to strengthen its status as a State.
At the Global Level
International Criminal Law
The prosecutor of the International Criminal Court (ICC) would not hesitate as of now to accept Palestine’s application to the 1998 Rome Statute that established the ICC. The former ICC’s prosecutor justified his decision of 3 April 2012 to defer the Palestinian application to the ICC chiefly on the ground that Palestine was not a State then. Now the prosecutor would be compelled to investigate and might issue arrest warrants, through the Interpol, to the police of 121 States members of the Rome Statute who would be under an obligation to drag accused war criminals to The Hague. This is the main reason the Israeli politicians fear Palestine’s UN move.
Once ICC jurisdiction is triggered in the case of Palestine, the Israeli military will think twice before using indiscriminate force against Palestinian civilians, including children, as was the case during the recent November 2012 offensive on the Gaza Strip. Hence, ICC jurisdiction – either through ratification of the Statute or acceptance by the Court of Palestine’s declaration under Article 12(3) of the ICC Statute – might serve as a preventive measure that would contribute to the reduction of the violence and harm caused to civilians. Yet, more significantly, Israeli politicians, military officers and settler leaders might be accused by the ICC of committing war crimes owing to settlement activity in the West Bank, which is prohibited under Article 49(6) of Geneva Convention IV and considered as a ‘grave breach’ under Article 147 of the said Convention and a ‘war crime’ under Article 8(2)(b)(viii) of the ICC Statute. On the other hand, the Palestinians while resisting the occupation would also be under an obligation to avoid targeting Israeli civilians. This in turn might prompt the Palestinians to invent more peaceful resistance techniques. Besides, Palestinian security forces might be accused of committing crimes against humanity if they commit acts of torture or other serious human rights abuses against other Palestinians.
International Humanitarian Law
Two international humanitarian law instruments should be ratified by Palestine immediately: Geneva Conventions III and IV. The enforcement of Convention III indicates that Palestinian prisoners in Israeli jails – currently treated as ordinary criminals by Israel – would be accorded the status of prisoners of war (POW) in the eyes of the international community. Such POWs, by virtue of Article 118 of the said Convention, should be released upon cessation of hostilities. In the likely event of Israel’s non-compliance, Palestine could resort to remedies available under the Convention, including calling upon the High Contracting Parties, under Article 132, to turn to the ICC, under Article 8(2)(a)(vi) of the Rome Statute, that considers arbitrary detention or the failure to adhere to fair trial standards as war crime.
Similarly, Palestine could ratify Geneva Convention IV by sending a request to the Swiss Federation in Bern (under Articles 152 and 155 of the said Convention), asserting the importance of ensuring proper protection for the civilian population in the occupied State of Palestine. Although the Convention has, in theory, been legally applicable in the past and current state of affairs, ratification of the said Convention will enable victims to file complaints before Palestinian courts that would be able to exercise universal jurisdiction, based on Article 146 of the said Convention, to issue arrest warrants and prosecute war criminals, regardless of the their nationality and the place of the commission of the crime. Such warrants might be addressed via the Interpol to the courts and police of other High Contracting Parties to arrest, extradite and prosecute perpetrators in the local courts of nearly all States.
Palestine could now join all human rights treaties. The State was able to become a Party to certain treaties, such as the two human rights covenants, after its admission to the UN Educational, Scientific, Social and Cultural Organization (UNESCO) on 31 October 2012, as per Article 48 of the International Covenant on Civil and Political Rights and Article 26(1) of the International Covenant on Economic, Social and Cultural Rights. Now, all human rights treaties are open to the State’s ratification, including the other seven core conventions (i.e. conventions on racial discrimination, torture, women, child, disability, disappearance, migrant workers).
Article 46 of the Convention on the Rights of the Child, for instance, provided that it ‘shall be open for signature by all STATES’ (emphasis added). Palestine could thereafter become party to the UN treaty monitoring bodies, appoint Palestinian experts in such bodies, submit State reports and file complaints against other States, where applicable. The ratification of these legal instruments would also place certain obligations on Palestine to ensure respect for the provisions of the treaties, including by harmonizing its legislation with the treaty’s provisions and undertake the necessary reforms in its institutions and their legal practice. Individuals might be able to file complaints against Palestinian authorities as well.
With almost half of Palestinians as refugees, international refugee law would not be less relevant than other branches of law underlined above. While the right of return for Palestinian refugees to Israel continues to be applicable notwithstanding Palestine’s recognition by the UN (see my note of 26 November 2012 at CJICL), three key points should be stressed:
(1) The State of Palestine is obliged to readmit or allow the return of those persons who left or forced to leave the West Bank or Gaza at any point from 1948 until today (about 1,200,000 persons);
(2) Palestine could accord its citizenship to any refugee who originate from the territory of Israel and protect him or her abroad—it should be noted that the admission of such refugees to Palestine would not undermine their right of return to their original places of residence in Israel;
(3) Israel, who currently controls the borders of the State of Palestine as an Occupying Power, might deny the return of refugees to the West Bank.
At this point, Palestine could become party to the 1951 Convention relating to the Status of Refugees and automatically resort to the International Court of Justice under article 38 of the Convention to complain against any of Israel’s violations thereof.
Diplomatic and Consular Law
International diplomatic and consular law, set out respectively by the Vienna conventions of 1961 (diplomatic) and 1963 (consular), could provide the State of Palestine, after accession, with the right to send and receive diplomatic and consular missions as it wishes. A problem would arise if Israel denies certain States to send diplomatic or consular personnel into Palestine. In these cases, such States, along with Palestine, would have the right to complain against Israel before the International Court of Justice under the optional protocols to these conventions concerning the compulsory settlement of disputes. The State of Palestine could, as a matter of right for Palestine and as an obligation of the receiving States, afford diplomatic protection to its citizens abroad and to serve them through its consular staff.
The Law of the Sea
The law of the sea relates to the coastal area overlooking the Mediterranean in the Gaza Strip, as well as to the West Bank, which is landlocked territory. By ratifying the 1982 United Nations Convention on the Law of the Sea, the State of Palestine may then claim sovereignty over its territorial waters (12 nautical miles or 22.224 km), its jurisdiction on its contiguous zone (24 nautical miles) and exclusive economic zone (200 nautical miles or a bit over 370 km at the Gaza coast). If the Israeli navy denies the Palestinians from using these areas – for any purpose such as transport, fishing, constructing ports or exploring for gas – Palestine may revert to the optional settlement measures recognized in Article 287(1) of the Convention: the International Tribunal for the Law of the Sea in Hamburg, the International Court of Justice, or arbitration. Although Israel is not presently a party to the Convention, Palestine could still use diplomatic means to approach the Convention’s 163 State Parties.
Joining international organizations has become possible even before the aforementioned UNGA vote by virtue of its admission as a full Member State to UNESCO in October 2011. Palestine was already a member of other intergovernmental organizations such as the League of Arab States and UN Economic Committee for Western Asia. The latest vote would make it easier for Palestine to join further UN specialized agencies, including the World Health Organization (WTO), the International Labour Organization (ILO), the World Bank and the World Trade Organization (WTO). Article 3 of the WHO Constitution, for instance, stipulates that ‘Membership in the Organization shall be open to all States.’ Palestine could resort to the Dispute Settlement Body of the WTO to complain against Israel if this State continues its restrictions on Palestinian imports, exports, taxes, customs and prices’ control. The WTO is expected to take certain measures against Israel should it maintains imposing restrictions on the Palestinian economy and freedom to trade.
At the Local Level
Enacting a Palestinian citizenship/nationality law would have different effects today than it would have had before the UNGA vote. According to international law, Palestine may define its population as it may deem fit. It could, based on citizenship law, issue Palestinian passports that would be ipso facto recognized by other States—or at least by the States that voted in favor of Palestine’s statehood bid. Palestine, then, could claim diplomatic protection for its citizens abroad, as mentioned above. Citizenship is a precondition for filing cases for violations against citizens under international criminal law, humanitarian law, refugee law and human rights, including extradition, and for the context of the elections for the Palestinian National Council.
It is high time for Palestine to initiate elections for its State institutions considering the lack of popular legitimacy for any of the ‘governments’ that are in place in both Ramallah and Gaza. In Ramallah, the term of President Mahmoud Abbas, who was elected in 2004, had lapsed in 2008, and the term of the Hamas government in Gaza, which won the parliamentary majority in the 2006 elections, had ended in 2010.
Elections should be comprehensive and include all the Palestinians (who should be defined based on the citizenship law mentioned above) in Palestine and abroad. The election should be for the Palestinian National Council that would represent both the State and the PLO. It might well be broken down into two chambers, one represents the State in the West Bank and Gaza and the other presents the Palestinians in the diaspora, with agreed upon functions for each chamber and general functions that include both chambers. The elections should be preceded by a process of reconciliation between the existing governments, to form a unity government between the West Bank and Gaza – this process should commence at once with no further delay. Without elections, effective unity between the West Bank and Gaza could not be achieved—which is a precondition for avoiding a situation of a falling State.
The constitution is a fundamental instrument to construct and sustain the political system of Palestine and realise its ability to act as a State. The current 2003 Amended Palestinian Basic Law was drafted for an authority that would function for a transitional period. It is not sufficient to regulate the political system of a State. A committee was set up to draft the constitution, which has resulted in the production of a number of bills. These might be considered as a starting point for finalising a constitutional draft that reflects a democratic State of Palestine, which should ultimately be put up for referendum by the Palestinian people.
The new constitutions should avoid the pitfalls that weakened the Basic Law. In particular, it should clearly define the relationships among the three powers, and unequivocally embrace international human rights standards, particularly with regard to the death penalty, women rights, torture, and the declaration of a ‘state of emergency’—all of which are issues that are only vaguely formulated in the current Basic Law. In this regard, the parliamentary system is the preferred mechanism to be adopted by the constitution. Such a system would permit the parliament to choose a prime minister and a cabinet that might be changed from time to time depending on the coalitions and the balances that might be drawn based on the electoral system and the parliamentary groupings. The electoral system should, as it is now, be established on proportional representation that gives small factions, which are many among Palestinians, and independents to form the parliament and the government.
One of the features of any State is to have a national currency. According to the Paris Protocol that was signed between the PLO and Israel in 1994 as part of the Oslo Accords (PLO-Israel Interim Agreements), Palestine could have adopted a national currency at an earlier stage. If adopted in the absence of the formally recognized State, the recognition of this currency might have been questioned at the international financial markets. This concern is now diminished as very few would be able to question the validity of the ‘Palestinian Pound’ after its issuance by a formally sovereign central bank.
Legislative reform is an indispensable tool for the execution of most international and local measures highlighted in this note. Such reforms would relate to ensuring that domestic law is in line with Palestine’s international human rights obligations, to the implementation of the ICC’s Rome Statute and the Geneva conventions, along with other legal instruments ratified by Palestine. Palestine’s prospective admission to international organizations would require reforming a number of legislation. For example, reforming business and investment law is necessary to adhere to WTO’s standards, improving labour law is needed for ILO’s membership, and adopting modern cultural heritage law is significant for the UNESCO’s membership which Palestine has been already entered. It is also necessary to unify the law between the West Bank and Gaza whose laws differ considerably due to the legal systems that were inherited from the Ottoman, British, Egyptian and Israeli regimes over the past 100 years.
Enacting legislation, ratifying treaties, approaching international tribunals and entering international organizations are all steps that require technical preparation and institutional reform. They also require recruiting and building the capacity of the individuals who would be able to perform analytical studies, provide reports to international forums, plead before courts, represent the country in embassies abroad, be hired by international organizations as staff members and experts, offer consular and diplomatic services to citizens abroad and set strategic plans for legislative reform. All these steps require the allocation of adequate financial resources.