Speaking at the Balfour Project online 2-day conference “Israel/Palestine: in search of the rule of law” on 25/26 May 2021.
Click here to view the other speakers at the conference.
Dominic Grieve QC:
Now it’s my great pleasure to introduce Philippe Sands. Philippe, good afternoon to you. Good to see you. I don’t think you need a huge amount of introduction either actually. A professor of law, director of the Centre for International Courts and Tribunals at University College London, a leading member of Matrix Chambers, and advocate before numerous international tribunals. And I think the author of 17 books on international law. Regarded at times as being a thorn in the flesh of the United Kingdom government, which is probably a very considerable accolade to have received today.
Philippe, I’m going to hand over to you to talk about the right to self-determination in Israel/Palestine, and then when that’s finished, I will come back in and I will introduce John McHugo, and then there will be a discussion between him and you. And then I will join in on that a little later stage. Over to you.
Philippe Sands:
Thank you, Dominic, and thank you to all the organisers and Vincent, and welcome to all the participants. I think the way we’re going to deal with this is for the first 20 minutes or so, I’m going to talk a little bit about some of the legal developments that are relevant right now in these awfully difficult times. We sort of tend to forget about the place of law and the role of law and introduce some of the issues about self-determination.
And then John McHugo and I are going to have a conversation, I think starting in about 20 minutes and then we’ll have a chance for questions and conversation.
The law has a role to play. That is certainly my assumption and that is most people’s assumption, but as we all know, law and politics often live in a very uneasy relationship. So I just wanted to set the context a little bit about how a classical international lawyer would look at the situation that we are in now. And there have been, of course, significant developments in the last couple of years.
By way of context, it’s obviously important to have in mind as a starting point the Advisory Opinion of the International Court of Justice of 2004. As we know, advisory opinions are not binding on states, but do have legal consequences for the recipient body, the body that makes the request. So the General Assembly made a request back in 2003 and in 2004, the Court handed down an advisory opinion on the legal consequences of the construction of the wall in the occupied Palestinian territory.
And that advisory opinion is the starting point, I think for me, for any assessment of the legal questions that have just been discussed with Baroness Hale and with Dominic Grieve.
It’s worth perhaps just spending a moment, just reminding us what that advisory opinion did. It set out a rather clear view. There was only one dissenting opinion on it. And it said, in relation to the questions, what are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem? And the Court did something very important. The Court began by setting out what the applicable legal principles were in dealing with the issue: customary international law, the United Nations Charter and in particular, the prohibition in international law on the use of force and the illegality of any territorial acquisition. And that of course is a foundational principle in assessing the legalities of what I’m going to come to, which will be the decision of the three judges of the International Criminal Court.
Secondly, the judges affirmed the principle of self-determination as being absolutely central and Dominic alluded to a case that he and I were involved in some years ago, which has led recently to a second advisory opinion from the International Court of Justice, which I’ll talk about perhaps with John McHugo shortly, on the separation of the Chagos Archipelago from Mauritius and its illegality under international law. But we’ll come back to that. So I’m just parking that point for the moment.
The Court said the Hague Regulations of 1907and the Fourth Geneva Convention of 1949 are all part of the applicable law. That’s international humanitarian law together with international human rights law, including the Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Covenant on Economic and Social Rights.
So that’s the legal framework and in applying the law to the facts, the court set out some important propositions that remain in effect today.
One, the settlements have been established in breach of international law.
Second, the construction of the wall impedes the exercise by the Palestinian people of its right to self determination, and is therefore a breach of the obligations owed by Israel to the Palestinian people.
Third, the construction of the wall violates international humanitarian law and international human rights law.
Fourth, it alters the demographic composition of the Palestinian territory and therefore contravenes the Fourth Geneva Convention and numerous Security Council resolutions.
Fifth, and very significantly, you cannot invoke security objectives or the right of self-defence to trump any of these rights, including the right of self-determination.
Six, Israel is under an obligation to put an immediate end to these obligations.
Seven, it must make reparation, and
Eight, all states must recognise that obligation.
So that’s the overall construction of the legal framework. And that advisory opinion was in 2004. It has not been complied with by Israel, and the recent acts of recognition by the United States are plainly inconsistent with aspects of the Advisory Opinion. And that is extremely problematic.
If I can just put this in the context, however, an earlier advisory opinion of 1971 on Southwest Africa was not in effect implemented for nearly 25 years or respected by South Africa. So the fact that there’s a passage of a long period of time does not limit ultimately the potential significance for negotiations, for politics and for legalities of the situation that’s coming.
I want to draw your attention, lest it be said that these advisory opinions are entirely without consequence or relevance, to the fact that they’re legally significant. They are politically significant, but there’s been one recent case that I want to draw your attention to, a judgment of 2019 by the Court of Justice of the European Union. In the case of Organisation Juive Europeenne and Vignoble Zagot against the French ministry of economics and finance in which the issue came up about labelling of products, imported into the European Union, imported into France from the occupied territories.
And the court ruled that food stuffs originating in a territory occupied by the state of Israel must bear not only the indication of that territory, but also where the food stuffs come from, a locality or a group of localities, constituting an Israeli settlement within that territory, an indication of that provenance.
So that’s a very direct practical consequence across the whole of the European Union, and at paragraphs 35 and 48, the European Court of Justice, effectively, explicitly endorsed the conclusions, or gave effect to the conclusions, of the International Court of Justice.
That’s the context in which to have a look at legal developments in relation to the International Criminal Court.
Just a few weeks ago, as you know, three judges of the International Criminal Court gave authority to the prosecutor to proceed to a formal investigation of crimes alleged to have been committed on the Palestinian side and on the Israeli side. And this case has been, I think it’s fair to say, something of a controversial matter.
Let me give you a brief timetable on how this got to the International Criminal Court.
The story really begins in 2015 when Palestine joined the Statute of the International Criminal Court. And it did so with no countries except one, I think it was Canada, objecting to its ratification of the Statute. And this becomes a very significant issue later. The United Kingdom did not object, and no other state party objected, with the exception of the single one that I’ve mentioned.
With its joining of the ICC and becoming a party to the Statute, Palestine referred the matter of a number of Israeli attacks and certain practices in the occupied territories to the prosecutor of the International Criminal Court. The prosecutor engaged in a preliminary investigation. That preliminary investigation was completed in 2019. And in January, 2020, the prosecutor referred a number of jurisdictional issues to a panel of three judges of the court under Article 19 at the statute. And that panel of three judges gave its decision on the 5th of February, 2021.
And essentially the court was being asked to address three questions.
- Is Palestine a state within the meaning of Article 12, paragraph two, of the statute?
- What is the delimitation of the territory of Palestine for the purposes of defining the jurisdiction of the Court?.
- What is the legal effect, if any, of the Oslo Accords?
To step back, it’s very important to state that Israel is not a party to the Statute of the International Criminal Court. And so the Court faced in any event, a jurisdictional matter in relation to the territorial extent of its jurisdiction.
Israel says that because it is not a party to the Statute, the Court has no jurisdiction at all. Palestine argues that is not correct. As Palestine is a party, any acts that Israel takes on the territory of Palestine falls within the jurisdiction of the Court.
By majority of two to one, the Court proceeded as follows:
- Palestine is a state party to the Statute. That’s a unanimous finding.
- By majority of two to one, but as a consequence, Palestine qualifies as the state on the territory of which the conduct in question occurred for the purpose of Article 12, 2a. And here we are talking about Israeli incursions onto Palestinian territory and Palestinian attacks on the territory of Israel. It’s very important to note that the prosecutor has investigated both alleged violations of the Statute, which emanate from actions under Palestinian control and felt on the territory of Israel, but initiated on the territory of Palestine, and, secondly, Israeli actions felt on the territory of Palestine.
- Again by a majority, that the court’s territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
And that of course is a very significant finding by the International Criminal Court.
Nevertheless, the judges were very careful to leave open certain questions and they left open in particular the whole issue of the effect of the Oslo Accords and indicated that they would deal with that set of issues when they came back, if they come back, to deal with the merits of the case when it is before them.
The judgment is very limited and its effect is very limited. It only allows the prosecutor to proceed to investigate. When the prosecutor, who is now a British barrister, Karim Khan QC, has completed his office’s investigation, he may decide there are no further steps to be taken and drop the case. Or he may conclude that there is evidence which requires then a proceeding to the merits. And at that point and only at that point, will the court begin to address the merits. And at that point, too, the Court has made absolutely clear that it will return to certain jurisdictional objections in relation to different parts of the occupied territories, and whether on the facts of a particular case there is jurisdiction to address those particular matters.
I’ve not been involved in the case on a professional basis. I have to say that I find the approach taken by the majority by the unanimous decision in relation to the characterisation of Palestine as a state entirely persuasive, having ratified the Statute and with only one country objecting to that ratification. It seemed to me it’s clear that Palestine was to be treated as a state party. But it’s very important that judges went out of their way to say that the finding that Palestine is a state party is not the same thing as finding that Palestine is a state under international law, and they make it very clear that they have not decided that question.
The issue is significant jurisdictionally in another respect.
I listened to the interesting conversation just now with Dominic Grieve and Baroness Hale on the question of the Right of Return. And this may well feature as part of the case that is coming. And let me explain why. It is because in another case at the International Criminal Court in relation to the allegations of mistreatment by Myanmar, formerly Burma, of the Rohingya community, the Criminal Court has recently determined that the Right of Return and the ability to return is something that falls within its jurisdiction as a possible crime against humanity.
And I should just explain briefly how this works because it’s significant, although also I think controversial in some respects.
Like Israel, Myanmar is not a party to the Statute of the International Criminal Court, but Bangladesh is a party to the Statute.
And as many of you will know, hundreds of thousands of members of the Rohingya community who have been subjected to mistreatment by the military of Myanmar have fled Myanmar and crossed the border onto the territory of Bangladesh, and they wish to return, but they don’t feel safe returning.
A case has been opened at the International Criminal Court concerning the question of whether the inability of the Rohingya community to return to their homes in Myanmar falls within the jurisdiction of the International Criminal Court. The factual situation is that they are now located on the territory of Bangladesh, which is a party to the Statute and the judges of International Criminal Court, a panel of three, have ruled that because they are located presently on the territory of a state that is a party, their inability to return is a felt consequence of the actions of the Myanmar authorities felt on the territory of Bangladesh. That, the court has ruled, falls within the jurisdiction of the International Criminal Court and engages an investigation. That’s the only stage that it’s at at the moment, the issue of whether the inability of the members of the Rohingya community to return from Bangladesh to Myanmar constitutes a crime against humanity under Article Seven of the Statute of the International Criminal Court.
So that opens the door to the issue of the Right of Return being addressed within the Statute of the International Criminal Court. And that’s the first time that has happened. That plainly has implications also for the Israel/Palestine situation and how the Court will proceed in relation to a Right of Return, certainly onto the territories of Palestine occupied by Israel, but there will not, of course, be jurisdiction in relation to the Right of Return onto the territory of the state of Israel, because Israel is not party to the Statute.
But in relation to what John McHugo and I may discuss shortly and other cases, this also has implications in relation to relations between the United Kingdom and the rest of the world on the Chagos Archipelago, which in 2019 the International Court of Justice determined was a part of Mauritius, not a part of the United Kingdom.
And that means that the inability of the Chagossians who have been spread to various parts of the world, Mauritius, Seychelles, and Crawley, near Gatwick Airport, could also now come to the International Criminal Court as a crime against humanity in relation to the unwillingness of the United Kingdom to give effect to the ICJ advisory opinion and allow the Chagossians to return to the homes from which they were forcibly removed between 1968 and 1973.
So the kinds of issues that we’re discussing now are issues that will continue to trickle through not only in relation to Israel/Palestine, but more broadly, and vice versa, the determinations in the Bangladesh Rohingya case, and possibly in the future case involving Chagos and the Chagossians, will, of course also have consequences in relation to how Israel/Palestine is addressed.
I will conclude with that. I think that what you should be getting a sense of here is that there is a bit of movement in relation to these legal issues. It is contested movement. Israel has responded very strongly to the opening of a formal investigation by the International Criminal Court. But equally it’s slightly more complex for the Israeli side, because the investigator is now investigating for example, the firing of rockets from Gaza into the territory of Israel. And that is going to pose a difficulty for the Palestinian side in the sense that the prosecutor’s office of the International Criminal Court may well in due course, if he proceeds to investigate this matter and reaches the conclusion that crimes have been committed on the Palestinian side, cause the Palestinians to have to confront the possibility of handing over certain individuals who might be said to be associated with the firing of rockets or other alleged crimes that might have occurred. So watch this space as the law wends its slow way through these complex and painful political issues.
And of course, the events of the last two weeks post date the original investigation, and presumably the prosecutor’s office will be considering whether to extend the investigation to deal with matters that have occurred over the last two or three weeks. I don’t have any information as to whether that will happen or not, but one assumes they will look at that pretty closely.
John, let me stop there. I saw you pop onto the screen briefly. I’ve just given a bit of background and let’s now go over to our conversation.
John McHugo:
Thank you very much for some very, very interesting and thought provoking material, and I’m going to come onto the Chagos Islands, and I want to link it with your book Lawless World at the same time. But I’d first like to make one opening remark, actually. You mentioned the 2004 opinion on the wall and how there was one dissenting voice, I just thought it might be interesting to point out that the one dissenting voice to it dissented on the grounds of jurisdiction, partly because he felt that the whole question of self-defense hadn’t been looked into adequately, but he made the point, and this is the really important point, I think. Judge Buergenthal said that the settlements were illegal under the Fourth Geneva Convention and that the Palestinians had the right of self-determination.
So I think it’s important for people to realise that on those two crucial issues, the entire Court was unanimous.
Philippe:
Absolutely. That is absolutely correct. And many people who are watching will know of Thomas Buergenthal. He is an absolutely remarkable individual and a scrupulous and independent person. And he was genuinely of the view that certain matters had simply not been fully pleaded – the facts, never mind the law to allow him to feel he could reach a firm view that the Court had properly exercised jurisdiction.
Of course the same thing has happened in relation to the Chagos case where again, there was only one dissent and that was the American judge, now Joan Donahue. But again, she did not descent on the merits. Jurisdiction has been the issue of dissent.
John:
But to get onto the Chagos Islands via Lawless World. Many people watching today of course, know that you are an author, not just of legal textbooks which are for the specialist, but you’ve also done an awful lot to bring international law to the general reader. Your most famous book on that of course is East West Street. But before that you’d written Lawless World back in 2005. And that was basically about how the rules of international law had been built up. America played a major role in this, so did Britain, and then you showed in 2005, of course, quite soon after 9/11, how this was changing in certain respects.
And if I may quote from the preface, you wrote on p. 12, ‘under George W Bush, the British government was often silent or, in certain respects, a willing handmaiden to some of the worst violations of international law’.
Now I mention that because of course in the last 15 years, so much has happened. And relatively recently we’ve had the whole Chagos Islands issue, in respect of which the United Kingdom has refused to implement international law as requested by the Court. And in fact, I think it’s gone further and been trying to negotiate maritime boundaries for the Chagos Islands, which I think took you to Hamburg, to the International Tribunal of the Law of the Sea. Isn’t that right?
Philippe:
Yes. Just to put it in context, I come from a very classical training in international law, as you know. You knew many of my teachers, extraordinary people: Eli Lauterpacht, Derek Bowett, Robbie Jennings, and Christopher Greenwood, an extraordinary group to have as teachers.
And I really have grown up very much in the view that the United Kingdom was a country that was very firmly committed to the rule of law, not just internally, but also internationally. And I think very largely for much of my life that that has been the case. And it’s something I feel very proud of and very committed to. I think Britain has been a very positive force for the idea of the rule of law, and Britain led the world, with the United States, in 1945 in creating the rules-based order.
But I think that began to change with Iraq. And I think that everything that has followed subsequently may come to be seen as flowing from what, I think, now almost everyone accepts was an illegal use of force against Iraq in the spring of 2003. It’s very hard to find anyone, there are one or two notable exceptions, who will now really argue that it was lawful or indeed that it was right. But we’re concerned here with legality.
And I think that did something else. And that was really interesting to me. That broke trust in government, because essentially a prime minister, Mr. Blair, stood up and said, ‘we’ve got all this information and this is what’s going on. And there are these weapons and things and so and so’, and it turned out not to be true.
And I think that loss of trust may in some way have catalysed the conditions that then led to the referendum, to the decision on Brexit, and following Brexit, this sort of rather hubristic approach now to international law: a government that is willing to put legislation before parliament, that on its face will violate a treaty negotiated with the European Union on withdrawal, in relation to the protocol for Northern Ireland.
And I think that’s the context in which it’s all part of an unfortunate journey. The Advisory Opinion comes down from the International Court of Justice, which says in very clear terms the United Kingdom unlawfully purported to detach the Chagos Archipelago from its colony of Mauritius in 1965. That purported detachment is without effect and Chagos is therefore, and has always been part of Mauritius.
As Dominic knows well, Dominic and I were on opposite sides, Mauritius had tried to argue that in the law of the sea case a few years earlier and failed because the side, led by Dominic, prevailed in the argument that a law of the sea tribunal had no jurisdiction to deal with the question of sovereignty.
So it was four years later, armed in particular with the dissenting opinion of two judges in that case, that Mauritius opened the door with the General Assembly and the African Union, and now has the judgment, but it’s led to an incredible situation.
I regret deeply that just as Israel has not given effect to the Advisory Opinion of 2004, the United Kingdom has declined to give effect to the Advisory Opinion of 2019 and joins countries like South Africa (in 1971) in this way.
But it goes even further. As a consequence of that advisory opinion, all the UN bodies have recognised it, the situation in law is changing, but of course on the ground, it’s not. And Mauritius has now brought a case against the Maldives to the Tribunal for the Law of the Sea. The Tribunal for the Law of the Sea has said, explicitly, that the United Kingdom has no rights over Chagos. It’s part of Mauritius. But strikingly, in an answer to a parliamentary question in parliament, the secretary of state for defence argued that the United Kingdom was entitled to negotiate its own maritime boundary with the Maldives, notwithstanding what the International Court of Justice and the Tribunal for the Law of the Sea had said.
I know the Foreign Office well, and there are wonderful lawyers in the Foreign Office. I know they cannot possibly accept that this is what is going on. And we have a foreign secretary right now who is an international lawyer, and I cannot believe that he thinks this is the right approach to be taking. And it undermines British policy in relation to China and in relation to so many other things. So I suspect it will change over time, but it’s not a happy situation right now, I have to say. And I do hope that it will change.
John:
This may be a completely useless idea, but I wondered if I could ask you about another point in the Chagos opinion, which actually is, I think, relevant to Palestine. The Chagos Islands were part of the colony of Mauritius, which was a crown colony of the UK. And of course it was meant to have its territorial integrity. And chapter 11 of the Charter of the UN, Articles 73 and 74, applied to it. The self-determination rights of the people, of the Chagos Islands and the Mauritius as a whole, flowed from chapter 11.
If Israel does not accept Palestine as a state, which it doesn’t, and despite the fact that it is occupied territory gained in a war, I do sometimes wonder if an argument could be brought that Israel has the obligation because it is ruling a non-self-governing territory as defined, I would argue, in Article 73 of the UN Charter, and therefore Israel has the obligation to the people of the entirety of the Palestinian territories occupied in 1967 to prepare them for full self-government. And of course, under the 1971 Namibia opinion, that means the right of self-determination.
Now that is not in the 2004 opinion. And it’s a very speculative view. I’ve only been tossing it around in my head for the last couple of days, but am I barking mad?
Philippe:
Well, you’re never barking mad, John McHugo, that’s absolutely clear. And I think our job as lawyers is often just to tease out ideas, to look at texts and to speculate as to where it might go. But I think the situations are very different. The provisions that you refer to in the United Nations Charter were part of the effort, essentially driven by the United States at San Francisco in 1945, to impose decolonisation on the European powers, on Britain, on France, Italy, to a certain extent. And they deal with the situation of the colonies as they existed at that period.
And one of the things that followed over the next 15 years was that the General Assembly ultimately adopted a resolution in 1960, Resolution 1514, on the principle of self-determination. And that resolution has in it, a principle of territorial integrity, that at the moment a country is granted its independence or achieves its independence, it is entitled to the entirety of its territory during its colonial period so that the colonial power is precluded from chopping off bits of territory and saying, ‘oh, we like that. We’ll have that. We’ll keep that’.
And there is one exception to that, and that is if the people of the decolonising territory determined that the colonial power can keep hold of a part of the former colony. So the International Court of Justice faced that in the 2019 advisory opinion and the rubber hit the road on the question of whether the United Kingdom had obtained from the leadership of Mauritius an accord for the dismemberment that had the support of the will of the people. And the International Court of Justice concluded that it did not. Because the accord had not been given, the purported dismemberment was without legal consequences.
So I don’t think you can take that analysis to the situation which now pertains in the occupied Palestinian territories, which are territories that have been occupied pursuant to a use of force. And that is why the Court in its 2004 Advisory Opinion made the point, as I began, that when you have used force, you cannot acquire sovereignty over the territory that you occupied. Now, this actually was extremely important in the Chagos case, because obviously from the Mauritian side, there was a real concern that Russia, in relation to Crimea, and China in relation to the South China Seas, would be extremely concerned that a positive decision by the International Court of Justice to exercise jurisdiction on the Chagos matter, would open the door to requests for advisory opinions on Russia/Crimea, and China/South China Seas.
And so the whole of the request for the advisory opinion on Chagos was crafted to ring fence it from the situation of acquisition of territory by other means, including the use of force, in order effectively to neutralise possible objections from Russia and from China. It was obviously very carefully thought through, but that I think is consistent with the conclusion that you could not draw from the facts on the ground in Israel/Palestine, the conclusion that Israel as the occupying power has an obligation to prepare the population for self-government. It’s a very different situation in fact and in law.
That said, there are always interesting, smart lawyers out there who will come up with ideas to throw at us. And so one never says never, but I think the factual and legal situations are different.
Dominic:
My task at this stage was really to feed in a few of the very large number of questions which have come through, both at Philippe’s presentation and also your own comments. I thought we might start with John Hall, who said ‘whatever the legal status of Israel and Palestine, can’t the displacement of Palestinians and replacement by Jewish settlers be described as ethnic cleansing?’
Philippe:
It could be depending on the particular facts. As both of you know very well, these are enormously delicate matters. And we all know that what one says and doesn’t say, including on webinars like this, then tends to develop a life of its own. So I’m going to be very, very careful, as Baroness Hale was in relation to that question.
Yes, I would say it is arguable that the replacement of a population of one ethnicity or nationality by another on the kind of scale that is taking place or is said to have taken place, could be said to amount to ethnic cleansing, which is a crime against humanity, and which is not, and this is extremely important because I get a lot of questions about it, it’s not a genocide. I mean, genocide and ethnic cleansing are two very, very different things.
The issue has come up relatedly, with a very significant report that has come out recently by Human Rights Watch, which will make very painful reading to a lot of people in Israel where a major international non-governmental organisation based out of the United States now produces a lengthy report, which characterises certain practices by Israel as amounting to apartheid, within the meaning of the Statute of the International Criminal Court.
And again, I was asked to comment on that and I was very careful with what I said. I’ve read the whole report very carefully. I have not expressed a view as to whether it’s right or wrong, but it’s a serious report. It is very carefully constructed. It has been reviewed by a number of serious and significant people.
And I think it is a wake up call that when Human Rights Watch, as an organisation is making those kinds of arguments and reaching those kinds of conclusions, it’s not a huge leap in relation to the question that Dominic has just posed.
And I think that report and what one now can perceive for the first time in the United States in relation to the terrible events of the last few weeks, is that there is a change of consciousness taking place in the United States. This seems to be some sort of a turning point as to what certain people are willing to tolerate in terms of allegations of lawlessness. So your question is an important one. Dominic.
Dominic:
The other one was that you mentioned reparations in the course of your presentation as being one of the requirements that has been placed on Israel. Could you just amplify on that because one of our listeners was interested.
Philippe:
Yes. Yeah. I mean, any international lawyer will tell you reparation doesn’t necessarily mean cash. I just did an event last week, actually for the American Society of International Law in Jamaica, virtually from my home in London, on reparations for enslavement in the Caribbean. And one of the points that I made is that reparations as set out in the International Law Commission Articles on State Responsibility can take a number of forms: apology, recognition that a fact has occurred can be a form of reparation, restitution, allowing people to come back can be a form of reparation. So in ordinary parlance, reparation often means cash. It can also mean that in international law, but when the International Court of Justice was talking about reparations, I suspect they were doing so in that broader international legal sense than in another more monetised sense.
Dominic:
Thank you. Heba Zaphiriou-Zarifi has a separate question to each of you. The first one was to John, which was whether John, could share your views as to the key reasons why UK governments are prevented from applying their democratic and human rights values in the context of protecting Palestinians. I think this is a dig at the UK voicing continuously a particular standpoint, but not necessarily being willing to take it any further. So it’s a rather political question. The second one which was directed at Philippe was what your opinion was regarding a one state solution that integrates the two territories, Israel and Palestine. Perhaps we’ll start with John.
John:
Well, only the other day I was looking at something Boris Johnson said when he was foreign secretary, when he made that very tentative remark on a visit to Israel about how the choice was two states or apartheid. It was all phrased very carefully, but I couldn’t help noticing what he said. He must have done his homework and been concentrating, because the words were well judged and basically were setting out the position in international law. And this is what the British government does. It will set out the position in international law if it’s forced to. And it will then say that that’s what it supports, but that’s a very far cry from doing anything about it.
And I was quite interested when Philippe mentioned the case at the European Court of Justice in 2019, which seems to be about settlement goods, about how they have to be labelled. I get the impression our current government is very reluctant to go any further down that road than is absolutely necessary.
And I think I’m afraid this is where I duck out of the question and say it is political and it’s all a question of what type of political judgements the prime minister for the time being happens to make. And I think that is the answer to the question, I’m afraid. Dominic, you’ve probably been closer to prime ministers than either of us have, I don’t know if you can add anything.
Dominic:
I think I can add something. I think actually the position of UK governments on the issue of the occupied Palestinian territories has been very consistent and it’s truthful. What I think is also true is that the reality of international politics, the disturbed conditions that prevail in the Middle East and the sense that Israel, for all its faults, wishes to be a genuine ally and shares many of our democratic principles, even if it’s not applying them, makes the United Kingdom, whilst it’s willing to apply private pressure, reluctant to apply a level of public pressure, which may lead to a rupture in relations. I think ultimately that is fundamental to it.
It’s also true that the Israelis enjoy in the United Kingdom, a substantial lobby interest group, but then other countries do as well. I don’t think that’s unique.
But I think that it’s a combination of those things. And the fact that the United States is overwhelmingly the one power that is capable of bringing about change and is unwilling to do it. So there’s also the sense of what is the point of sticking oneself out on a limb on an issue where one’s own position is unlikely to be critical, if you can’t bring along the one country that has shown in the past it can bring about change. Bush Sr showed that it was possible for great progress to be made in Israeli/Palestinian relations. I think we forget just how close he came to bringing about a settlement.
And the fact that that failed, and the fact that the United States has shown up to now a consistent lack of interest, means that most of the European countries facing many of the same pressures, broadly speaking follow a very similar line, which is that international law requires a solution that has a Palestinian state. But the ability or the feeling that they can exert pressure or exerting pressure would be useful, appears to them to be largely pointless. I think that’s the best way I can summarise.
Philippe:
That’s really interesting. Dominic. You have been much, much closer to it than either of us. The UK has a traditional approach of limiting its engagement with matters of international law, to not taking things forward. It won’t, for example, characterise certain past historic wrongs. I’m thinking of the treatment by Ottoman Empire of the Armenians. It won’t proceed to call it, as others have done, including President Biden just a couple of weeks ago, a genocide, because it takes the view that that’s a matter for courts, not a matter for governments.
I wonder how long the UK will be able to continue with that. I listened with great interest yesterday to the foreign secretary’s statement on the truly appalling events involving the diversion of a plane. I just can’t think of something like it that has happened before, and this requires a response that goes way beyond a few sanctions here and there. This opens the door to huge challenges to the rule of law, to freedom of expression, to dissent, to international travel and flights. It’s a staggering decision.
And there are remedies that may be available for example, under the 1970 Convention on Interference with Aircraft and tha International Civil Aviation Organisation. And I do wonder whether at some point, if not the British government, but possibly the British government or some other government, would actually go the next step and bring legal proceedings, but Britain traditionally has not done that. And it may be that that policy is well adhered to, and will not change.
In relation to the one-state solution, against the background of the Human Rights Watch report, I find it hard to imagine a viable, sustainable long-term effective one state solution. I just simply cannot see how that could possibly emerge in a political sense, given everything that has happened.
In the immediate future, and it’s been very interesting to watch the Biden administration wriggle, I’ve been rather impressed by what the Biden administration has done over much of its first few months, but the last few weeks have not been a pretty sight I have to say on this issue, But what is the Biden administration going to do about the moving of the US embassy? My friends in the United States tell me that that is a done deal. They’re not going to come back on that because of domestic political considerations. And that is extremely problematic because with the embassy having moved, the possibility of real movement from the United States, which is the one country, if there is one country, that can make a real difference with what happens on the ground, I think seems very limited. So we seem now to be in a situation where the Trump administration has left behind another gift for us, which is going to make it very, very difficult for the United States, unless it addresses that issue, which is a sort of lightning rod for so many people in the region, to change position on that. It looks very difficult.
Dominic:
Yes. The move is extremely problematical. I’m not sure where they’re actually opening it. I assume it’s in west Jerusalem rather than in East Jerusalem, but nevertheless, it so completely undermines the absolute principle that Western democracies have adopted that they would not recognise Jerusalem as the capital because of the fact that the Israelis claim the entirety of the city. And I think it’s a most regrettable decision.
Philippe:
It’s very problematic, very, very, very regrettable, as you say.
Dominic:
Thank you Philippe very much for your presentation and your engagement.