A Palestinian UN Peacekeeping Contingent and Enforcing International Court of Justice Advisory Opinions

1-96fb8b7640The current situation on the ground in Gaza is drastically different than it was in 2012 as Hamas and the PIJ have acquired new long range missiles reaching up to Haifa

Dr. Parasaran Rangarajan for Global News Centre

(NEW YORK) The current escalation of violence or intifada between Hamas and Israel is a  product of the illegal occupation of the State of Palestine under the 4 th  Geneva Conventions and customary international law. It can also be attributed to continued illegal settlement activity in the West Bank of the State of Palestine continuing negligence of the international community in what is known as the “world’s largest open air prison” 1 ; the Gaza Strip of the State of Palestine as it is virtually cut off from the rest of the world due to illegal land and sea blockades. The last conflict between the Gaza militant factions of Hamas and the Palestinian Islamic Jihad (PIJ) was in 2012 and ended with a ceasefire agreement 2 . The current situation on the ground in Gaza is drastically different than it was in 2012 as Hamas and the PIJ have acquired new long range missiles reaching up to Haifa 3 . There is also the possibility of the Palestinian National Security Forces (PASF) in the West Bank getting involved this time although it is monitored by Israel and funded by the U.S. 4

In addition, the Israel Defence Forces (IDF) claim that there are 170,000 missiles aimed towards it and it would certainly be a blood bath if there was all out war leading to the cycle of firing these missiles with retaliatory airstrikes 5   with shortages in Gaza’s hospitals due to the illegal blockade, etc. This was reported a few months ago as Israel attributed these new missiles with reported navigation capabilities to a shipment from Iran. Regardless of how they got there, it is in the interests of peace to return to the ceasefire agreement of 2012 according to U.S. White House Press Secretary Josh Earnest 6 . To this effect, Hamas is ready as it has put forth 4 conditions for a ceasefire 7 including returning to the 2012 ceasefire, non-interference in the internal matters between Fatah and Hamas, release of re-arrested prisoners who were freed in Shalit deal in 2011 which may be done in a phased release similar to what Israel offered to Fatah in the past year or so, and an ease on the illegal sea blockade of Gaza.

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The current Israeli plan of a ground invasion would be disastrous for Israel according to expert Israeli analysts and senior Israeli Rabbi’s themselves. This is because the last Israeli ground invasion of Gaza titled “Cast Lead” resulted in thousands of Palestinian civilian deaths and the international community was quick to point out the war crimes committed. However, Palestine was not a “state” according to the U.N. at that time so it could not seek justice at the International Criminal Court (ICC) for the alleged war crimes. To further avoid allegations and current substantial proof of war crimes such as the “crime of aggression” as well as to avoid civilian deaths in what is alleged as a continued “genocide” of the Palestinian people since 1948, it would be best to negotiate as players such as Egypt are assisting in negotiating a ceasefire 8 as offered. Deviating from this would be certainly be an act of aggression, prosecutable under Article 5 of the Rome Statue 9 while there is the possibility of negotiations on the table and furthermore; the militants in the Gaza Strip which is a part of the State of Palestine is comparatively weak compared to the jets and tanks Israel possess with U.S taxpayers footing the bill for this (Nearly $3 Billion Military Aid Per Year To Israel).

While critics are quick to point out that the entire Palestinian government are “terrorists” just because Hamas and the PIJ are on U.S. Foreign Terror Organization (FTO) lists and the right to defense is justified, the U.S. Department of State made it clear earlier this week that there is no evidence proving any connections 10 so attacking or categorizing the entire Palestinian community itself would be illogical. Earlier this year, the island of Comoros referred Israel to the ICC 11 for its attack on a Turkish boat carrying humanitarian supplies to Gaza as it was registered in the name of the island giving the ICC jurisdiction under Article 12 (2)(a) of the Rome Statute and Turkey itself has filed cases domestically against 4 former IDF Chiefs with official warrants sent to Interpol 12 . The Arab League is also holding emergency meetings with the 15 member U.N. Security Council to determine the next step to take on Gaza as Ambassador H.E. Dr. Riyad Mansou; Permanent Representative of the State of Palestine has highlighted war crimes under the 4 th Geneva Conventions 13 . If the Palestinian Liberation Organization (PLO) were to turn to the ICC, the international repercussions would be devastating as even the U.S. would be hard pressed to justify its continued support of Israel as senior

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U.S. leaders such as White House Middle East Chief Philip Gordan recently put Israel “on blast” earlier this week asking when they will recognize a separate Palestinian state indicating that patience is running short 14 . The European Union (E.U.) has also continued its support for the State of Palestine 15 and has put several Israeli organizations on the E.U. terror lists 16 .

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Similar to what Mahatma Gandhi had stated; my sympathy is also with the Jews of Israel but there can be no excuse for entering the holy land of the proud Arabs without their consent and it is not to defend their excesses but you cannot blame them either under the current cannons of international law. With repeated violations of international law by Israel and no accountability, the ICC may be utilized now as the State of Palestine has achieved the requirements for membership of the court in acquiring U.N. “statehood”. In addition, the State of Palestine may also look at enforcing the prior International Court of Justice (ICJ) ruling for international disputes such as the advisory opinion of 2004 on the wall 17 .

Under Article 94 (1) of the U.N. Charter, all member States are obliged to follow ICJ judgments and if they do not, subsection 2 of Article 94 provides that the U.N.

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Security Council may take action. However, a veto by a permanent member of the U.N. Security Council during vote can prevent any enforcement of the advisory opinion or issue. This is what has prevented the State of Palestine from becoming a full member state of the U.N. till today but this will not prevent the U.N. from enforcing ICJ judgments. In addition, the U.N. has brought up the failure of the Responsibility to Protect (R2P) on many times and this is a situation where it can be revived. Due to the escalation of and continued violence in the State of Palestine and Israel, the U.N. Security Council has the option of deploying a U.N. Peacekeeping Contingent to protect  both parties and uphold a ceasefire. However, as mentioned, the veto power of the U.S. is of relevance but not fully effective.

Via U.N. General Assembly Resolution 377 18   which is known as the “Uniting For Peace Resolution”, with 2/3 rd  majority of member States in the U.N. General Assembly, the world may decide to override a U.S. veto at the U.N. Security Council. A 2/3 rd  majority at the U.N. General Assembly can also set up an international tribunal 4-d327bd0f3dto  prosecute Israeli leaders for various violations of international law since 1948 or later just as the International Criminal Tribunal For Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTfY) was set up before the inception of the ICC in 2002. This majority can be found in Arab League, Organization of Islamic Cooperation (OIC), and  Non-Aligned Movement (NAM) alone. This cannot be used for achieving full membership of the U.N. for various reasons as many nations tried when the U.N. was first established in the late 1940’s 19  but U.N. General Assembly Resolution 377 resolves :

“  that if the Security Council, because of lack of unanimity of the permanent members,  fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any  seven members, or by a majority of the Members of the United Nations; ”

This would apply to this matter of seeking permanent peace in Israel-Palestine as it may be decided that the U.S. is not upholding responsibility for “maintenance of international peace and security” when a permanent solution with a U.N. Peacekeeping Contingent is possible to respond to the “thre at of peace, breach of peace, and act of aggression” as stated in U.N. General Assembly Resolution 377 . U.N. General Assembly Resolution 377 may also be used to bypass a U.S. veto on any other matter including the enforcement of ICJ advisory opinions such as the issue of the separation wall and also new ICJ advisory opinions Palestinians may seek with regards to requesting a U.N. Peacekeeping Contingent. This may be done through the ICJ as it states its advisories have “peace-keeping virtues” 20 .

It seems that the IDF would rather teach Palestinians a lesson rather than conduct precision attacks on militants as civilian deaths outnumber militant deaths in their military operations adding to the claim of genocide as there is “intent to exterminate (destroy) an ethnic and national group” with knowledge of danger to civilians but proceeding anyway after civilian casualties or mens rea of intent. This is the legal definition of “genocide” provided to us under customary international law, under Article 2 of the “1948 Geneva Convention on the Prevention and Punishment of the crime of Genocide” 21 , and Article 6 of the Rome Statue.

In this scenario, peace is required and the State of Palestine may approach the ICC under Article 12 of the Rome Statute for prosecuting current Israeli leaders for violations of international law, namely; war crimes, crimes of aggression, crimes against humanity, and genocide. The State of Palestine may also approach the U.N. Security Council with the support of the Arab League and also seek ICJ legal advisory opinion on establishing a U.N. Peacekeeping Contingent to protect all parties involved and as mentioned, a U.S. veto would not matter as in the case of seeking membership as this deals with international peace and security as well as the R2P Doctrine. Failure to do so could bring up criminal liability for complicity and negligence.

 

 

*  Consultant for the South Asia Analysis Group and Editor-in-chief for the International Law Journal of London

1  “Gaza: The World’s Largest Prison.” Global Research . Global Research, n.d. Web. <http://www.globalresearch.ca/gaza-the-world-s-largest-prison/829>.

2  “TEXT: Cease-fire Agreement between Israel and Hamas.” Haaretz, 2012. Web. <http%3A%2F%2Fwww.haaretz.com%2Fnews%2Fdiplomacy-defense%2Ftext-cease-fire-agreement- between-israel-and-hamas.premium-1.479653>.

3  “Rockets Strike as Far North as Haifa.”  Israel National News . Arutz Sheva, n.d. Web. <http://www.israelnationalnews.com/News/News.aspx/182702#.U73ExfldXkc>.

4  Zanotti, Jim. “U.S. Security Assistance to the Palestinian Authority.” Congressional Research Service  (2010): n. pag. Congressional Research Service. Web. <http://fas.org/sgp/crs/mideast/R40664.pdf>.

5  “IDF Official: 170,000 Missiles Aimed at Israel.”  Arutz Sheva . N.p., n.d. Web. <http://www.israelnationalnews.com/News/News.aspx/181537#.U73XYPldXkc>

6 “USPolicy.” White House Press Briefing . U.S. Embassy In Belgium, n.d. Web. <http://www.uspolicy.be/headline/white-house-press-briefing-241>.

7 “Hamas Sets Israel Four Conditions for Peace – World Bulletin.” World Bulletin . N.p., n.d. Web. <http://www.worldbulletin.net/todays-news/140296/hamas-sets-israel-four-conditions-for-peace>.

8 “Egypt’s Sisi Pledges to Seek Gaza Ceasefire.” The Daily Star Newspaper . N.p., n.d. Web. <http://www.dailystar.com.lb/News/Middle-East/2014/Jul-09/263198-egypts-sisi-pledges-to-seek-gaza-ceasefire.ashx#axzz36vsdVOuj>.

9 Rome Statute Of The International Criminal Court. Rome Statute (n.d.): n. pag. International Criminal Court. Web. <http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

10 “State Dept: ‘No Evidence That Hamas Plays Any Role’ in Palestinian Govt.” YouTube . YouTube, n.d. Web. <https://www.youtube.com/watch?v=ss0S_TmxtD8>.

11 “ICC Prosecutor Receives Referral from Comoros Regarding Mavi Marmara.” Freegaza – . N.p., 15 May 2013. Web. <http://www.freegaza.org/en/home/56-news/1415-icc-prosecutor-receives-referral-from-comoros-regarding-mavi-marmara.html>.

12  “Turkish Court Orders Arrest of Israeli Top Brass over Gaza Ship Raid.”  Maan News Agency . N.p., n.d. Web. <http://www.maannews.net/eng/ViewDetails.aspx?ID=700166>.

13  “Arab, OIC, NAM Groups’ Chairmen Meet UNSC Pres., UN Officials to Ponder next Move on Gaza.” KUNA, n.d. Web. <http%3A%2F%2Fwww.kuna.net.kw%2FArticleDetails.aspx%3Fid%3D2386702%26language%3Den>.

14  “Top Obama Official Blasts Israel for Denying Palestinians Sovereignty, Security, Dignity.” The Times of Israel  . N.p., n.d. Web. <http://www.timesofisrael.com/top-obama-official-blasts-israel-for-denying- palestinians-sovereignty-security-dignity/>.

15   “Britain’s Largest Trade Union: Israel Is an Apartheid State.”    International Middle East Media Center  RSS  . N.p., n.d. Web. <http://www.imemc.org/article/68400>.

16  “Palestinian FM Requests ‘terrorist’ Label for Militant Settlers – World Bulletin.” World Bulletin . N.p., n.d. Web. <http://www.worldbulletin.net/world/136161/no-nuclear-deal-with-iran-unless-actions-verifiable>.

17   10 Years: ICJ Opinion . S.l.: League of Arab States?, 1958. Web. <http://www.ochaopt.org/documents/ocha_opt_10_years_barrier_report_english.pdf>

18 “A/RES/377(V) A of 3 November 1950.” A/RES/377(V) A of 3 November 1950 . N.p., n.d. Web. <http://unispal.un.org/UNISPAL.NSF/0/55C2B84DA9E0052B05256554005726C6>.

19 ” INTERVIEW WITH THE AMBASSADOR H.E. DR. RIYAD MANSOUR, Permanent Representative of The State of Palestine To the United Nations.” Interview With Ambassador of State of Palestine To United Nations H.E. Dr. Riyad Mansour . International Law Journal of London, n.d. Web. <http://www.internationallawjournaloflondon.com/interview-with-ambassador-of-state-of-palestine-to-united-nations-h.e.-dr.-riyad-mansour.html>.

20  “International Court of Justice.”  Advisory Jurisdiction | . International Court of Justice, n.d. Web. <http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2>.

21  “Convention on Genocide.” Convention on Genocide . HR Web, n.d. Web. <http://www.hrweb.org/legal/genocide.html>.

References 1. “Gaza: The World’s Largest Prison.” Global Research . Global Research, n.d. Web. <http://www.globalresearch.ca/gaza-the-world-s-largest-prison/829>.

2. “TEXT: Cease-fire Agreement between Israel and Hamas.” Haaretz, 2012. Web. <http%3A%2F%2Fwww.haaretz.com%2Fnews%2Fdiplomacy-defense%2Ftext-cease-fire-agreement-between-israel-and-hamas.premium-1.479653>.

3. “Rockets Strike as Far North as Haifa.” Israel National News . Arutz Sheva, n.d. Web. <http://www.israelnationalnews.com/News/News.aspx/182702#.U73ExfldXkc>.

4. Zanotti, Jim. “U.S. Security Assistance to the Palestinian Authority.” Congressional Research Service (2010): n. pag. Congressional Research Service. Web. <http://fas.org/sgp/crs/mideast/R40664.pdf>.

5. “IDF Official: 170,000 Missiles Aimed at Israel.” Arutz Sheva . N.p., n.d. Web. <http://www.israelnationalnews.com/News/News.aspx/181537#.U73XYPldXkc>.

6. “USPolicy.” White House Press Briefing . U.S. Embassy In Belgium, n.d. Web. <http://www.uspolicy.be/headline/white-house-press-briefing-241>.

7. “Hamas Sets Israel Four Conditions for Peace – World Bulletin.” World Bulletin . N.p., n.d. Web. <http://www.worldbulletin.net/todays-news/140296/hamas-sets-israel-four-conditions-for-peace>.

8. “Egypt’s Sisi Pledges to Seek Gaza Ceasefire.” The Daily Star Newspaper . N.p., n.d. Web. <http://www.dailystar.com.lb/News/Middle-East/2014/Jul-09/263198-egypts-sisi-pledges-to-seek-gaza-ceasefire.ashx#axzz36vsdVOuj>.

9. Rome Statute Of The International Criminal Court. Rome Statute (n.d.): n. pag. International Criminal Court. Web. <http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

10. “State Dept: ‘No Evidence That Hamas Plays Any Role’ in Palestinian Govt.” YouTube . YouTube, n.d. Web. <https://www.youtube.com/watch?v=ss0S_TmxtD8>.

11. “ICC Prosecutor Receives Referral from Comoros Regarding Mavi Marmara.” Freegaza – . N.p., 15 May 2013. Web. <http://www.freegaza.org/en/home/56-news/1415-icc-prosecutor-receives-referral-from-comoros-regarding-mavi-marmara.html>.

12. “Turkish Court Orders Arrest of Israeli Top Brass over Gaza Ship Raid.” Maan News Agency . N.p., n.d. Web. <http://www.maannews.net/eng/ViewDetails.aspx?ID=700166>.

13. “Arab, OIC, NAM Groups’ Chairmen Meet UNSC Pres., UN Officials to Ponder next Move on Gaza.” KUNA, n.d. Web. <http%3A%2F%2Fwww.kuna.net.kw%2FArticleDetails.aspx%3Fid%3D2386702%26language%3Den>.

 http://www.scribd.com/doc/233285938/A-Palestinian-UN-Peacekeeping-Contingent-and-Enforcing-International-Court-of-Justice-Advisory-Opinions

 

 

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