Saturday, December 8, 2012
A United Nations independent expert yesterday urged China to immediately release Chen Kegui, the nephew of blind human rights defender Chen Guangcheng who currently lives in the United States, stressing that the Government must stop acts of retaliation against the activist. “It is difficult to see the conviction of Chen Kegui as anything else but retaliation against Chen Guangcheng for defying the Chinese Government,” said the Special Rapporteur on human rights defenders, Margaret Sekaggya.
On 26 April, Mr. Chen was arrested after local officials raided his family’s house in Shandong province without a warrant, according to a a news release from the Office of the UN High Commissioner for Human Rights (OHCHR). The raid was conducted after his uncle Chen Guangcheng had escaped house arrest and gone to Beijing, where he found refuge in the US Embassy, before being allowed to travel to the US to pursue his studies. After months of detention without any communication, Mr. Chen was sentenced to three years and three months in prison on 30 November for injuring an officer during the raid in a trial that lasted only a few hours.
“I condemn in the strongest terms the conviction of Chen Kegui and urge the Chinese Government to ensure that human rights defenders and their families do not face violations of their fundamental rights as a result of their peaceful human rights activities,” Ms. Sekaggya said.
Mr. Chen reportedly did not have legal representation of his choice and was not allowed to call any witnesses in his defence. His family was notified of the trial only hours before it took place, and they were allegedly not allowed to be present, despite being witnesses to what happened during the raid on their house. Mr. Chen and his family have maintained that he acted in self-defence.
“I am particularly concerned about the lack of legal representation and the fact that Chen Kegui’s family members were not allowed to testify,” said Ms. Sekaggya. “The trial bears no sign of equal arms between the prosecution and the defence.”
The human rights expert noted that the Chen family is not the only one being targeted for the human rights work of a family member, pointing to a pattern of surveillance, Internet and cell phone access being cut and house arrest, as in the case of Liu Xia, the wife of Nobel Peace Prize winner Liu Xiaobo.
Ms. Sekaggya called for all acts perpetrated against human rights defenders and their families to be “promptly and adequately investigated and perpetrators prosecuted without further delay.”
Independent experts, or special rapporteurs like Ms. Sekaggya, are appointed by the Geneva-based Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work.
(Adapted from a UN press release)
Friday, December 7, 2012
On Thursday, the United States Senate passed H.R. 6156, which terminates the application of the Jackson-Vanik Amendment to Russia and Moldova and authorizes the President to extend Permanent Normal Trade Relations (PNTR) to both countries. In welcoming the passage of the bill, the U.S. State Department had the following to say:
"The passage of this bill will allow American businesses to reap the same economic opportunities in Russia’s markets that other World Trade Organization members receive, resulting in greater access for American workers, companies, farmers, ranchers, and service providers and the creation of more American jobs. We share Congress’ goals of promoting respect for human rights in Russia, and consider democracy, human rights, and civil society to be important components of our relationship with the Russian government and the Russian people. We also support Moldova’s ongoing reform efforts and its aspirations for further integration into European institutions."
This move was necessary to fully effectuate Russia's recent accession to the WTO last summer.
Thursday, December 6, 2012
The international watchdog organization, Transparency International, has released
its annual Corruption Perceptions Index. The index measures perceived corruption in 176 countries. Once again this year, Afghanistan, North Korea, and Somalia are considered most corrupt. Denmark, New Zealand and Finland tied for least corrupt. The United States is ranked 19th.
The US Supreme Court heard oral arguments yesterday in Chafin v. Chafin, a case involving an international child custody dispute under the Hague Convention on the Civil Aspects of International Child Abduction, to which the US is a party. The case involves an American military dad and a Scottish mom who got divorced. The lower US court granted the mom custody and allowed her to return to Scotland with the child. The dad appealed the court's decision, including its finding that Scotland was the habitual residence of the child because the family had moved around due to the father's military service. However, the appellate court dismissed the case as moot because the mom and child had already left the US. The issue on appeal is whether US courts still have jurisdiction when the child has been removed from the country. U.S. Circuit Courts of Appeals are split on the issue. In oral argument, the justices questioned whether courts should issue orders delaying a parent from leaving the country in such cases to give the other parent time to appeal.
Wednesday, December 5, 2012
The United Nations war crimes tribunals set up in the wake of the Balkan conflicts of the 1990s and the 1994 genocide in Rwanda are making progress in completing their work, but still face a myriad of challenges that will require support from the international community, their officials told the Security Council today.
The President of the International Criminal Tribunal for the former Yugoslavia (ICTY), Theodor Meron, said that while the tribunal is making “excellent progress,” there have been some delays in various cases. “The tribunal continues to face a myriad of challenges in meeting the estimated completion dates for some of its cases,” he said.
The ICTY is tasked by the Council with trying those responsible for the worst war crimes and other breaches of international humanitarian law committed during the various conflicts in the former Yugoslavia in the 1990s. Since its inception 19 years ago, the tribunal has indicted 161 persons.
“The tribunal is situated far from where the crimes took place in the former Yugoslavia. The geographical scope of the indictment and the number of charges alleged can surpass the most complex of national proceedings and the number of crime sites, and crimes alleged, are often of unparalleled scale,” Mr. Meron said, adding that other challenges include departure of staff, witnesses refusing to testify and States being slow in cooperating with requests.
However, he stressed that in spite of delays, the tribunal’s main work beginning next year will focus on appeals and should be mostly finished by 31 December 2014. Addressing everything from crimes of sexual violence to international criminal procedures, the tribunal has “transformed the face of international justice forever, all the while paying full respect to the rights of the accused and the principle of legality,” Mr. Meron said. “The tribunal has been instrumental in bringing a new era of accountability and a new commitment to justice within the international community at large.”
In his capacity as President of the International Residual Mechanism for Criminal Tribunals (IRMCT), Mr. Meron said the Arusha-based Mechanism, which was established in July this year, is fully functioning and that preparations are underway for the launch of its branch in The Hague.
The Council set up the Mechanism in December 2010 and mandated it to take over and finish the remaining tasks of the ICTR and the ICTY once their mandates expire. The Council has urged the two tribunals to conclude their work by the end of 2014.
The ICTR branch of the Residual Mechanism began its functions on 1 July, while the branch for the ICTY will start on 1 July 2013.
“I urge Council members to reflect on the achievements of the ICTY and the potential of the Mechanism – to build up on the achievements of its predecessors by creating a model institution that represents the international community’s strong commitment in its fight against impunity.”
ICTR President Vagn Joensen said the transition from the ICTR to the Arusha branch of the Mechanism has been effective and has allowed the tribunal to increasingly focus on downsizing its activities and prepare for closure. Over the next months, the main challenge for the ICTR would be the continued transition of the remaining functions to the Mechanism, he said.
Based in the northern Tanzanian town of Arusha, the ICTR was set up after the Rwandan genocide, when at least 800,000 ethnic Tutsis and politically moderate Hutus were killed during three months of bloodletting that followed the deaths of then Rwandan president Juvenal Habyarimana and his Burundian counterpart Cyprien Ntaryamira when their plane was brought down over the Rwandan capital, Kigali, on 6 April 1994.
Mr. Joensen added that he expected all the appeals to be completed by the ICTR no later than 31 December 2014.
(UN Press Release)
Israel must abide by and fully implement the ceasefire agreement that ended the recent crisis in Gaza, stressed a United Nations independent expert, who called on the international community to exert pressure over the country to fulfil its obligations and investigate its recent actions which resulted in the deaths of Palestinian civilians. “Experience has shown that Israel fails to meet its international obligation to promptly and impartially investigate its own actions,” said the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Richard Falk, who just finished a visit to the Egyptian capital, Cairo, and the Gaza Strip. “Experience has also shown that Israel is not likely to carry out its obligations under the ceasefire agreement; indeed during our visit we heard Israeli warplanes flying directly overhead and received reports of Israeli military incursions into the Gaza Strip.”
The ceasefire between Israel and the Palestinian group Hamas, which controls Gaza, was announced on 21 November, just over a week after the start of the most recent wave of deadly violence, which included rocket attacks against Israel from Gaza, and Israeli airstrikes on targets in the Strip. Eight days of violence left an estimated 158 Palestinians dead, including 103 civilians, and approximately 1,269 injured. Six Israelis – four civilians and two soldiers – were reported killed by Palestinian rocket fire and 224 Israelis were injured, the vast majority civilians.
Mr. Falk was in the region to assess the overall impact of Israel’s prolonged occupation and the six-year-old blockade against Gaza. However, he said that “there arose an urgent need to investigate Israel’s seemingly deliberate attacks against civilian targets during recent hostilities.” During his visit, Mr. Falk visited the sites of attacks and spoke with surviving family members. “It is clear that some attacks killed and harmed civilians in a grossly disproportionate manner and thus appear to violate international law,” he said. “There is a widespread feeling among Palestinians that Israel is above the law, and that it is likely to continue to have the benefits of impunity even when it flagrantly and repeatedly violates international human rights and humanitarian laws.”
Mr. Falk called for sustained pressure from the international community, including governments and civil society, to secure Israel’s full implementation of the ceasefire agreement, noting that without such pressure it is unlikely to hold. “Worldwide support for the recent General Assembly resolution that made Palestine a non-member observer State should serve as a starting point for more concerted international protection of Palestinian rights,” he said.
Mr. Falk underlined the need to clarify how certain aspects of the agreement will be implemented, particularly those regarding access to maritime and agricultural resources, as well as basic services such as clean water and sanitation. “Every day Palestinian fishermen and farmers risk being shot at or detained by Israeli forces. Already since the agreement was reached, Israel has detained 13 fishermen, confiscated 4 fishing boats and sank another fishing boat,” he said. “Such actions signal an Israeli intention to maintain its coercive style of occupation rather than to explore whether implementing the ceasefire agreement might lead toward a more hopeful future.”
Mr. Falk underscored that although there have been plans for infrastructure projects in Gaza that would meet the population’s urgent needs, donors are reluctant to invest in projects that are likely to be bombed by Israel. “Unless these underlying problems are addressed soon, it appears that Gaza will be uninhabitable by 2020, as predicted by a recent UN report. Some of the experts with whom we spoke actually believe that 2016 is a more reasonable assessment. This indicates the gravity of the human rights crisis in the Gaza Strip.”
While in Cairo and the Gaza Strip, Mr. Falk met with governmental, inter-governmental and civil society representatives, as well as victims and witnesses. He received briefings from the UN Relief and Works Agency for Palestine Refugees (UNRWA) and other UN agencies, which provided an in-depth picture of the magnitude of the challenges in Gaza, and the difficulties of addressing such challenges in a situation of occupation and blockade.
Independent experts, or special rapporteurs, are appointed by the Geneva-based Human Rights Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work. Mr. Falk is scheduled to present his next report to the Council in June 2013, which will include concerns raised during this mission.
(UN Press Release)
Tuesday, December 4, 2012
The United Nations war crimes tribunal set up in the wake of the Balkan conflicts of the 1990s today reaffirmed the life sentence of a Serbian paramilitary leader, Milan Lukic, who was previously found guilty of inhumane acts including murder, cruel treatment and violations of the laws of war.
The International Criminal Tribunal for the former Yugoslavia (ICTY) dismissed all of Mr. Lukic’s eight grounds of appeal. The affirmation of Mr. Lukic’s sentence is the first time the Tribunal has upheld a sentence of life imprisonment, according to the court.
The ICTY is tasked by the Security Council with trying those responsible for the worst war crimes and other breaches of international humanitarian law committed during the various conflicts in the former Yugoslavia in the 1990s. Since its inception 19 years ago, the Tribunal has indicted 161 persons.
Mr. Lukic had initially been convicted in relation to six distinct incidents. One of the most notorious ones was that known as the ‘Pionirska Street massacre,’ in which he was found responsible for the murders in 1992 of 59 Muslim women, children and elderly men by barricading them in one room of a house in the town of Višegrad, in south-eastern Bosnia and Herzegovina, where a carpet had been treated with an accelerant and an explosive device was exploded, setting the house on fire. He was also found to have shot at people trying to escape from the burning house.
The appeals chamber of the Tribunal made small changes to two sub-grounds of appeal, which found that 53 – not 59 – people were killed in the ‘Pionirska Street massacre’ and that the involvement of some prosecution witnesses in the case had not been properly evaluated. However, the Tribunal found that these two adjustments did not impact the sentence.
The Tribunal also reduced the sentence of Sredoje Lukic from 30 to 27 years of imprisonment for crimes against humanity. The former Serb paramilitary leader had most of his 15 grounds of appeal dismissed by the Tribunal; his sentence was reduced by three years after the appeals chamber reversed his convictions for the beatings of detainees in the Uzamnica camp.
(UN Press Release)
Earlier today, a World Trade Organization (WTO) arbitrator, Mr. Giorgio Sacerdoti, issued his decision regarding what constitutes a “reasonable period of time” under Article 21.3 of the Dispute Settlement Understanding for the implementation of Dispute Settlement Body recommendations and rulings in the disputes “United States – Certain Country of Origin Labelling (COOL) Requirements” (DS384 and DS386). Canada had initiated the matter in 2008 with respect to US labelling requirements on beef and pork from Canada. The arbitrator determined that the "reasonable period of time" for the United States to implement the recommendations and rulings of the DSB in these disputes is 10 months from the adoption of the Panel and Appellate Body Reports, or until 23 May 2013. More information may be found here.
As widely predicted in the media, US Senate Republicans were successful today in blocking the U.S. adoption of the United Nations Convention on the Rights of Persons with Disabilities. Under the U.S. Constitution, 2/3 of the 100 Senators must vote in favor of a treaty for ratification to occur. The vote was 61-38 in favor, but was five votes short of the 2/3 needed.
The UN Disabilities Treaty is aimed at banning discrimination against persons with disabilities. It is based in part on the 1990 Americans with Disabilities Act. Opponents claimed that the U.S. should not ratify the treaty because it undermines U.S. sovereignty and it would interfere with parental decision-making with respect to children with disabilities who are home-schooled. Article 24 of the Disabilities Treaty provides for equal access to education, but does not directly address home-schooling.
Another concern sometimes mentioned is the possible affect on abortion law. The treaty does not directly address abortion either. Rather, Article 23 provides that States shall take effective measures to ensure that: "The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided."
126 other States have ratified the treaty. Once again, the US has failed to demonstrate leadership and commitment on the international level with respect to the protection and promotion of human rights.
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.
United Nations Secretary-General Ban Ki-moon learned "with grave concern and disappointment" of Israel's announcement of 3,000 new settlement units in East Jerusalem and other parts of the West Bank, according to his spokesperson today. "This would include reported planning in the so-called E-1 envelope, which risks completely cutting off East Jerusalem from the rest of the West Bank," the spokesperson added in a statement. "Settlements are illegal under international law and," the spokesperson noted. "Should the E-1 settlement be constructed, it would represent an almost fatal blow to remaining chances of securing a two-State solution."
Announced by Israeli authorities on Friday, construction in E1 -- a West Bank territory that Israel captured in 1967 -- would reportedly connect a large Jewish settlement to Jerusalem. However, the move would also divide the West Bank in two, rendering a viable, contiguous and sovereign Palestinian State impossible to achieve in accordance with the two-State solution contained in the internationally approved plan that seeks to resolve the issue on the basis of two States, Israel and Palestine, living side by side in peace and within secure borders.
Mr. Ban's spokesperson said that the Secretary-General repeats his call on all concerned to resume negotiations and intensify efforts towards a comprehensive, just and lasting peace and urges the parties to refrain from provocative actions. "In the interests of peace, any plans for E-1 must be rescinded," he added.
On Thursday, the General Assembly voted to grant Palestine non-member observer State status at the United Nations, while expressing the urgent need for the resumption of negotiations between Israel and the Palestinians leading to a permanent two-State solution. The resolution on the status of Palestine in the UN was adopted by a vote of 138 in favour to nine against with 41 abstentions by the 193-member Assembly.
(UN Press Release)