Arab Network Magazine 2021-E-Version

Working Paper
important of these legal frameworks
are: the legal framework
governing the issue of decolonization,
the legal framework governing
the issue of combating the
crime of apartheid, and the legal
framework for illegal occupation
that was referred to by the
Special Rapporteur for the Occupied
Palestinian Territories, Mr.
Michael Lynk, in his report to the
General Assembly in 2017, in
which he compared the case of
Palestine and the case of Namibia,
in respect of which the International
Court of Justice issued an
important decision that was
followed by a series of decisions,
legal literature and moves that
ultimately led to the end of the
South Africa's occupation of
Namibia.
The problem facing those working
in the Palestinian human
rights struggle is not the multitude
and overlapping of available
legal frameworks, nor the multiplicity
of discourses adopted by
Palestinians and supporters of the
Palestinian cause. As a matter of
fact, and due to the abundance of
literature in international law
supporting the rights of Palestinians,
Palestinians have the "luxury
to choose" between several
options to determine the optimal
framework for practicing their
struggle within the framework of
international law available to
them, such as: illegal occupation,
colonialism, apartheid regime, or
otherwise.
In all these, it can be easily demonstrated
that the occupying power
meets the conditions related to
these classifications and frameworks.
According to the Special
Rapporteur's persuasive presentation
in his October 2017 report to
the General Assembly, Israel has
exceeded the limits of military
occupation permitted by international
law and entered the stage
of illegal occupant. In addition,
the nature of the occupation of
the West Bank, which includes the
transfer of residents, the seizure
of lands and the plunder of
resources, applies to the description
of colonialism (indeed, in
certain interpretations, the occupying
state can be considered in
itself a colonial entity). Also,
Richard Falk and Virginia Tilley in
their famous report with ESCWA,
published in March 2017, provide
convincing evidence from international
human rights law and Israeli
practices that Israel is an apartheid
state par excellence. Unfortunately,
this important report was
withdrawn at the request of the
Secretary-General of the United
Nations, after American and Israeli
pressure. So, the three frameworks
apply to Israel, and it
remains for the Palestinians, the
human rights movements and
their supporters, to adopt the
most agreeable options and thus
follow the steps that result from
such adoption. It may also be
more effective to consider an
appropriate legal framework that
considers the multiple dimensions
of the racist Israeli colonial occupation
What else?
The existence of this huge and
varied literature from the resolutions
of the Security Council, the
General Assembly of the United
Nations, the Human Rights Council,
and the International Court of
Justice raises the legitimate question:
What can be done or what
should be done in order to
enforce international law, which
clearly gives the Palestinians their
right to self-determination,
rejects the Israeli measures on the
ground, and demands that the
State of Israel end its occupation?
In fact, a founding question prior
to this, is: Are international law,
especially international human
rights law and international
humanitarian law, tools or frameworks
through which we can
move to end the Israeli occupation?
This is a legitimate question, in
light of the state of failure and the
continuous failure of international
law to provide protection to the
Palestinians or to implement
decisions issued to stop violations
and end the occupation. Also, this
is what the Special Rapporteur
indicated in his speech and in his
report to the General Assembly
that "the question of Palestine has
become a dark stain in the
forefront of international law that
has let down the Palestinians."
One could question that the
United Nations, with its various
mechanisms and decisions, has
now provided a framework for
sustaining the occupation and
managing the conflict instead of
resolving it, so that states help to
appear to support Palestinian
rights or international law,
without entailing any other obligations
or undertaking any actions
and decisions to push Israel to
change its behavior. This schizophrenia
has become evident with
the openness of many countries
which have traditionally been
considered within the camp
supporting the Palestinians and
hostile to Israel. These are now
normalizing, establishing commercial,
security and military cooperation
relations with Israel, while at
the same time, continue to maintain
their positions on the Palestinian
issue and vote in favor of Palestine
in the General Assembly and
the Security Council.
Arab Network Magazine
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