The UN Charter and the Israeli-Palestinian Question
von Ronda HaubenIn his first press conference for the New Year of 2008, Ban Ki-moon, the United Nations Secretary General said that this is a season to take stock of what has happened in the past and to look ahead to the future. When asked what his evaluation was of his first year as Secretary General, Ban said that journalists and others would have to determine the response to this question. It was not one the Secretary General felt able to answer.
For those following the activities of the United Nations and the Secretary General, there have been some significant developments in 2007, which help to provide a yardstick by which to judge the actions of the United Nations and the Secretary General.
One of the issues recognized as of utmost importance is to achieve some progress in improving the plight of the Palestinian people in the occupied territories. A document which is particularly salient in this regard, is the confidential report prepared by Alvaro de Soto, the “End of Mission Report.” The report was submitted to the UN in May 2007 and leaked to the UK’s Guardian. It was published by the Guardian in June 2007. (1)
De Soto, a Peruvian diplomat served in significant UN posts over a 25 year period. In May 2005, he was appointed by Kofi Annan as the special coordinator for the Middle East Peace Process and for the Quartet. (2) The “End of Mission Report” covers the period from when de Soto was appointed to the position of Special Coordinator for the Middle Eastern Peace Process byAnnan in May 2005, until he gave his resignation to Ban Ki-moon in May 2007. (3)
The report critiques the role played by Annan and then by Ban after he assumed the position of Secretary General. It also contains a serious discussion of the peacemaking role of the Secretary General under the UN charter and what the demands are for the day to day activities to be able to make progress in solving the Israeli-Palestinian conflict.
De Soto describes several important events which provided a basis for a change in the role the UN could play in the situation. These included the Israeli disengagement from Gaza and parts of the West Bank in August 2005, Israel’s Prime Minister Ariel Sharon’s stroke and induced coma in January 2006 leading to a change in Israeli leadership, and the victory of the Hamas candidates in the Palestinian legislative elections in January 2006.
The Quartet members, the US, the EU, Russia and the Secretary General of the UN, act as group of friends of the US whose shared goal in the Israeli-Palestinian conflict is the two-State solution. (de Soto, p. 25) One of the actions mandated by the Roadmap was the January 2006 Palestinian Authority election. Hamas won a majority. De Soto’s efforts were to get the Quartet to adopt a direction consistent with the long term needs of the situation, which was to encourage dialogue and to register concern about Israel’s activities on the ground that would interfere with the ability to achieve a Palestinian State. The Quartet, however, made the decision to go along with the US’s encouragement of Israel to withhold the funds Israel collected which belonged to the Palestinian Authority. This “pulled the plug”, de Soto writes, “on the main source of income for the Palestinian Authority.” De Soto refers to a Financial Times article in which US Secretary of State Rice proposed that the Palestinians would see that Hamas failed as a government.
Actions like this taken by the Quartet transformed it, “from a negotiating-promoting foursome guided by a common document (the Roadmap) into a body that was all-but imposing sanctions on a freely elected government of a people under occupation as well as setting unattainable preconditions for dialogue.” (de Soto, p. 19).
The realization that he had to resign came for de Soto, when Ban Ki-moon went to see Palestinian President Mahmoud Abbas (Abu Mazen) on March 25, 2007. Contrary to de Soto’s advice, in the name of the UN, Ban made the possibility of meetings with the Palestinian Prime Minister dependent on “the conditions and actions of the government.” De Soto had opposed negotiations being dependent on Hamas meeting the conditions set by the Quartet. These conditions included “non violence, recognition of Israel, and acceptance of previous agreements and obligations.” (de Soto, p. 31)
De Soto explains that, “I fail to see why it was necessary to escalate the UN’s position and more so to cross the conditionality line.”
De Soto describes how the Quartet protected Israel from the requirement to fulfill its obligations under the Roadmap, but the members refused to negotiate with the Palestinian Authority unless they met conditions not previously recognized under the Roadmap. Moreover Israel’s actions were violations of Article 4 of the Geneva Convention, which makes it contrary to international law to impose collective punishment on a civilian population, as represented for example, by the closing of the crossing points in and out of Gaza. (5) De Soto also describes how he was not allowed to communicate with Syria or with the Prime Minister of the Palestinian Authority. If the UN is to be able to play a role in solving serious problems or diffusing a crisis, however, there is a need for the UN special coordinator for the Middle East Peace Process to have previously established a relationship with all the parties, so as to be able to have the direct high level contact needed to diffuse tensions and handle the political issues. (de Soto, p. 50)
De Soto notes that the Israeli mission to the UN “has unparalleled access in the Secretariat even at the highest levels.” There is a practice which even he followed, “that in any given situation where the UN is to take a position, to ask first how Israel or Washington will react rather than what is the right position to take.” (de Soto, p. 49)
The UN charter, however, under Article 100, specially requires that no state set out to influence the Secretary General. Ban took an oath of office to adhere to this principle. The problem with violating this principle, de Soto argues, is that the independence of the Secretary General is crucial for him to be able to fulfill his role as “normative mediator par excellence.” The impact of failing to be impartial not only represents a problem for the reputation of the Secretary General, but it also has practical consequences. When there is a need to have an impartial party to negotiate in a conflict situation, if the Secretary General is not recognized as acting in this impartial manner, he will lose his ability to be helpful in the situation.
Given this obligation, de Soto proposes that if the Secretary General is not able to have an effect on the positions taken by the Quartet, so they are evenhanded, he recommends that the Secretary General downgrade his participation in the Quartet so as “to no longer provide a shield for what the U.S. and the EU do.”
De Soto is wary of the claims of the US that it is providing a vision for the future of Palestine, while at the same time failing to condemn Israel’s failure to dismantle the previous settlements and stop the spread of new settlements and the Wall in the occupied territories. This “appears to be an effort to infer that in the ever receding future – a viable solution will be possible despite all the facts on the ground,” writes de Soto.
For the UN to be seen to support one side or another is not only a violation of its need to maintain neutrality in practice and in words, but also because to fail to do so “may well place our personnel in jeopardy over time,” writes de Soto. (de Soto, p. 42)
In considering the consequences of the failure of the UN Secretariat to conduct itself with the evenhandedness so critical to maintaining the status of the UN in the eyes of the world, de Soto describes how the attack on the UN headquarters in Iraq in August 2003, “haunts me.” The UN deployed there,” he writes, in circumstances under which the UN does not normally operate.” (de Soto, p. 42) He believes that the UN staff in Iraq was “attacked as a proxy for the real target under whose auspices the UN was there.”
De Soto also describes how the constant increase in settlements on Palestinian territory by Israel and its refusal to adhere to the advisory decision of the International Court at the Hague that the Wall is illegal, is leading to a growing belief among the Palestinians living in the occupied territories and in Israel, and even some Jews on the left in Israel, that there is no reality to the possibility of a two state solution. De Soto writes, “a Palestinian State requires both a territory and a government,” but “the basis for both is being systematically undermined.” Consequently these parties are growing in their belief that “the only long-term way to end the conflict will be to abandon the idea of dividing the land and, instead, simply insist on respect for the civil, political, and national rights of the two peoples, Jews and Arabs, who populate the land, in one State.” (p. 46-47)
The so called “one state solution” is gaining ground, de Soto writes. “You can’t negotiate when you tell the other side, ‘give us what a negotiation would produce before the negotiations start’,” explains de Soto, quoting something attributed to Colin Powell.
Having worked with three Secretary Generals, de Soto realizes that the office of the Secretary General places a difficult burden on the person in it. The effort to meet the demands of the office, however, is a goal worthy of the difficulties. The UN, de Soto maintains, “is itself a milestone in human progress as it attempts to go beyond the creaky state system that followed the Treaty of Westphalia to create something that is more than the sum of its parts, the member states.” (de Soto, p. 51)
The responsibility for achieving this goal, de Soto explains, resides with the Secretary General. It is the determination of the Secretary General “to forge on tenaciously, with dexterity and imagination, pushing at the envelop,” which will determine whether or not the UN will succeed as an experiment. (p. 52)
The one other duty that the charter clearly gives to the Secretary General, as provided for in Article 99, is the power to bring a matter to the Security Council. De Soto argues that even if this power is rarely exercised or even necessary, “it implies that he (the Secretary General-ed) must have the capacity to make a judgment as to what needs to be taken to the Council.” (de Soto, p. 40)
This power provides the Secretary General with the means to not only make a judgment about what problems are sufficiently detrimental to the peace and security of the international community, but also to have a means of placing these problems on the agenda of the Security Council, even when the Security Council itself is reluctant to initiate action on its own.
When asked about Ban’s view on the leaked Report, Michele Montas, spokesperson for Secretary General said (6):
“It is deeply regrettable that this report has been leaked. The whole pint of an end-of-mission report is for our envoys and special representatives to be as candid as possible…the views in the report should not be considered official UN policy.”
A more recent comment by John Dugard, the South African who is the Human Rights Council’s special rapporteur on the human rights situation in the occupied Palestinian territories confirmed the seriousness of the problem of the Quartet’s lack of even handedness toward the Palestinians. He called on Ban Ki-moon to pull out of the Quartet unless the Quartet does something about the deteroriating conditions in the Palestinian territories.
“Every time I visit (the occupied territories),” he said in an interview with BBC World Service and Al-Jazeera’s English Service, “the situation seems to have worsened.”
Dugard is also quoted challenging the UN’s failure to play the role of mediator in the factional fighting between Hamas and Fatah “[but] instead the international community has given its support to one faction – to Fatah,” he said. “That’s not a role the UN should be taking.” (7)
The importance of the Report, however, is not so much that it offers a critique of the actions of the Secretary Generals but more importantly that it proposes the principles and actions that are consistent with the requirements of the UN’s charter in order to be able to work toward solving the Israeli-Palestinian conflict.
Notes
1) The url for the End of Mission Report is: http://image.guardian.co.uk/sysfiles/Guardian/documents/2007/06/12/DeSotoReport.pdf
2) De Soto’s actual title was Under-Secretary-General United Nations Special Coordinator for the Middle East Peace Process and Personal Representative of the Secretary-General to the Palestine Liberation Organization and the Palestinian Authority
3) Rory McCarthy and Ian Williams, “Secret UN report condemns US for Middle East failures”, Guardian Unlimited, June 13, 2007
http://www.guardian.co.uk/frontpage/story/0,,2101676,00.html
4) See for example: Warren Hoge, “On Mideast Trip, U.N. Chief Sought to Expand New Role”, New York Times, March 3, 2007 http://www.nytimes.com/2007/04/03/world/middleeast/03nations.html?_r=1&oref=slogin
5) For an explanation of Article 4 of the Geneva Convention as applied to an occupied people, see for example “Letter to Prime Minister Ariel Sharon” from the International Commission of Jurists, Jan 31, 2002.
http://www.icj.org/news.php3?id_article=2618&lang=en&print=true
6) Rory McCarthy and Ian Williams, “Secret UN report condemns US for Middle East failures”, Guardian Unlimited, June 13, 2007
http://www.guardian.co.uk/israel/Story/0,,2101630,00.html
7) Marion Houk, “Stop or Step Out,” Al-Ahram Weekly, October 18-24, 2007
http://weekly.ahram.org.eg/2007/867/re2.htm
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