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vonRonda Hauben 30.01.2018

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In 2016, the UN Human Rights Council appointed S. Michael Lynk, a law professor at Western University, in London, Ontario, Canada, as the Special Rapporteur on the Situation of human rights in the Palestinian territories occupied since 1967.

In October 2017, Lynk issued his second Report to the UN. This report raises a fundamental question about the nature of the Israeli occupation of Palestine. That question is:

“Whether Israel’s role as occupiant of Palestinian territory has now reached the point of illegality under international law?”

The Report establishes the criteria for the legality of an occupation under international law. Then it uses as precedent the International Court of Justice case regarding South Africa’s occupation of Namibia. In that case, the International Court of Justice decided that South Africa did not satisfy the requirements for the occupation to be a legal occupation. As a result of that judgment, the international community was obligated to pressure South Afirica to cease its occupation.

Lynk’s criteria for a legal occupation are the satisfaction of four requirements.

They are
1) There is an absolute prohibition against annexation of any of the occupied territory.
2) The length of the occupation must be finite, meaning it must be ended in a reasonable period of time.
3) It must be carried out in good faith.
4) It must be carried out in a way that meets the best interests of the occupied.

Stated more formally, these principles are:

1) The Belligerent Occupier Cannot Annex Any of the Occupied Territory.

2) The Belligerent Occupation Must Be Temporary, and Cannot Be Either Permanent or Indefinite.

3) The Belligerent Occupation Must Be Carried Out in a Way to satisfy that it serves the best interests of the Occupied.

4) The Belligerent Occupier must administer the occupied territory in good faith including acting in full compliance with its duties and obligations under international law and as a member of the United Nations.

In his second Report, the Rapporteur takes up to demonstrate that Israel fails to satisfy all four of these requirements.

For example, Lynk proposes that the “extraordinary duration” of Israel’s occupation of Palestine would be enough to place Israel in violation of this critical element for legality of occupation, especially as no persuasive justification has been provided for the excessive longevity of the occupation.

In his Report the Rapporteur makes the case documenting how the role of Israel as Occupier in the Palestinian territories “had crossed a red line” and that there is a need to free the Palestinian people from this illegal occupation.

In his conclusion, Lynk makes recommendations including:

“. . . 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.”

“. . .that the United Nations General Assembly:

( a) Commission a United Nations study on the legality of Israel’s continued occupation of the Palestinian territory;

(b) Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;

(c) 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.

(d) 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.”

Lynk explain several reasons why the determination would serve a helpful role in this situation.

“First, it would encourage member states to take all reasonable steps to prevent or discourage national institutions, organizations and corporations within their jurisdiction from engaging in activities that would invest in, or sustain, the occupation. Second, it would encourage national and international courts to apply the appropriate laws within their jurisdiction that would prevent or discourage cooperation with entities that invest in, or sustain, the occupation. Third, it would invite the international community to review its various forms of cooperation with the occupying power as long as it continues to administer the occupation unlawfully. Fourth, it would provide a solid precedent for the international community when judging other occupations of long duration. Most of all, such a determination would confirm the moral importance of upholding the international rule of law when aiding the besieged and the vulnerable.”

While Rapporteur reports only document, analyze and recommend, they can carry a moral force and they can alert the governments and peoples of the world to injustices and situations that need attention and action toward their resolution. Prof Lynk in his second Report helps direct attention to the possibility that the Israeli-Palestine dispute and conflict lacks a solution because it is not properly understood. There are many calls for a peaceful resolution and for talks between the Israeli and Palestinian leaders, but maybe those are not possible as long as Israel is mistakedly seen as a legitimate occupier of the Palestinian Territories.

Notes

Quotes in this article are from The Report “Situation of Human Rights in the Palestinian Territories Occupied Since 1967”. The Report is available online. The URL is
http://www.ohchr.org/Documents/Countries/PS/A_72_43106.docx

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