The responsibility of third states concerning the Israeli occupation of the Palestinian Territories

 Posted by: Schechinger Jessica

On Thursday evening 13 June 2013, the third SHARES Debate entitled The Israeli occupation of the Palestinian Territories: is there a responsibility for the Netherlands? was held in Amsterdam. This blog post will highlight parts of the debate.

Background

The continuing Israeli occupation of the West Bank, the Gaza Strip and East-Jerusalem, and the expansion of settlements raise the question as to what the responsibility is of other states. Due to the asymmetry of this conflict, it would appear that it can only be resolved through the intervention of third parties.

This SHARES debate addressed the role of third states in general, and the Netherlands in particular. The focus on the Netherlands was justified not only because the Netherlands attaches great importance to the promotion of the international rule of law, but also because it maintains close relations with both Israel and the Palestinian Authority.

The panel consisted of two eminent speakers: Laurens Jan Brinkhorst and John Dugard. André Nollkaemper acted as moderator.

The debate

In his individual talk, professor Dugard focused primarily on the international legal issues, while professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories.

THIRD STATE OBLIGATIONS AND INTERNATIONAL LAW

Professor Dugard discussed the obligations of third states (placing emphasis on the Netherlands) in relation to the Israeli occupation of the Palestinian Territories, from the perspective of international law.

Dugard argued that in order for the third state obligations under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ASR) to be applicable in the present case, three elements need to be fulfilled. First, there must be conduct in breach of an international obligation; second, this conduct needs to be attributable to Israel; and third, in the context of article 41 ASR, the act must also be an international wrong of a serious nature (a violation of a norm of jus cogens). In Dugard’s view, the law and the facts are clear because the construction of settlements, the transfer of settlers, and the construction of the wall are all considered illegal under international law. These acts are international wrongs of a serious nature and attributable to Israel. The de facto annexation of the Occupied Territories, the denial of the Palestinian people’s right to self-determination and the existence of segregation, amounting to an ‘apartheid’ system, are considered violations of peremptory norms.

This situation triggers obligations of third states under international law deriving in part from international humanitarian law. Article 1[1] of the 4th Geneva Convention on the treatment of civilians in armed conflict, entailing the obligation for states parties to the Geneva Convention to respect and ensure respect for the present Convention, is relevant in the present case. In addition, article 41[2] of the ASR is of importance, since it obliges states to cooperate to bring an end to an unlawful situation amounting to a violation of jus cogens, not to recognise an unlawful situation, and not to render aid or assistance in maintaining an unlawful situation.

Dugard noted that although states have what he called a ‘margin of appreciation’ regarding their obligations, it has in practice led to states doing nothing. Although the United Nations Security Council, the United Nations General Assembly, the European Union (EU) and the United States (US) have condemned (meaning they do not recognise the lawfulness of) the Israeli settlement policy, to this date nothing has actually been done.

The illegality of what Dugard called the ‘settlement enterprise’ is confirmed in the 4th Geneva Convention, the Rome Statute, by the ICJ and the United Nations Human Rights Council. An independent fact-finding mission of the UN Human Rights Council has put the illegality of the wall and the Israeli settlements in the Occupied Territories as follows:

The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law as applicable in the Occupied Palestinian Territory, as recognized notably by the International Court of Justice in its advisory opinion of 9 July 2004.[3]

Furthermore, in its Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, the fact-finding mission recommended that states should not recognise an unlawful situation resulting from Israel’s violations of international law in the Occupied Palestinian Territories.[4]

PROHIBITION OF AID OR ASSISTANCE

With regard to article 16[5] ASR on aid or assistance in the commission of an internationally wrongful act, an aspect concerning the obligations of third states under international law, Dugard stressed that there is knowledge of the illegal circumstances and of what happens on the ground. Preserving an illegal situation can be seen as aiding or assisting in maintaining an unlawful situation. This was also recognised in paragraph 163 (3)(D) of the ICJ’s Advisory Opinion on the wall.

Dugard’s remarks on aid or assistance are in line with what Professor James Crawford has said earlier on obligations of European governments in general, and the UK in particular, concerning support for and involvement in settlement activity of Israel in the West Bank. In his opinion entitled Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, Crawford concluded that involvement of a third state in Israel’s settlement activity, where characterised as recognition or aid or assistance, is incompatible with international law.[6] He however stressed that ‘it is doubtful whether States have any positive obligations to ensure Israel’s compliance with international humanitarian law. The ILC Articles require only collective action.’[7]

WHAT CONDUCT SHOULD STATES ADOPT?

Dugard also addressed the question of what conduct is required from third states in order not to be held responsible for wrongful conduct under international law.

On the issue of mandatory labelling of products that were produced in or come from settlements, Dugard went one step further and also said that states are obliged under international law to stop purchasing and selling these products, meaning that all such products must be banned from shops.

Currently a number of campaigns including an academic and cultural boycott of Israel (see e.g. here and here are taking place. Consumer boycott campaigns seeking to block the import of products that come from settlements might find Dugard’s argument helpful for their cause.[8] It could be interesting to see what would happen if a case was brought before a domestic court in the Netherlands (or elsewhere) against a supermarket chain for aiding and abetting an unlawful situation, because of selling products coming from Israeli settlements.

COUNTERMEASURES

Dugard further noted that, because of the illegality of the construction of settlements and the wall, states are entitled to take countermeasures under international law so as to put an end to these illegal acts. Termination of aviation or trade agreements are examples of countermeasures, but all such measures must be proportionate and may not involve the use of force. Brinkhorst noted that suspending the EU-Israel Association Agreement would be a possibility (article 2 of the agreement on human rights is relevant here). Twenty-three members of the European Parliament have indeed called for the suspension of the EU-Israel Association Agreement[9] on 11 March 2013 in a letter to Catherine Ashton, the High Representative of the EU for Foreign Affairs and Security Policy.

POLITICAL ISSUES AND THE VANISHING TWO-STATE SOLUTION

Professor Brinkhorst discussed the political issues surrounding the occupation of the Palestinian Territories. He observed that this is an asymmetric conflict with two parties who are not equal in terms of size, power and resources.

Brinkhorst argued that the US is not well-suited to provide a solution to the conflict given the fundamental divide in the US society on this issue. Other states should exercise their responsibility.

While many states, including the Netherlands and the EU, support the two-state solution, this solution becomes increasingly impossible due to the on-going expansion of the settlement policy. UN Secretary-General Ban Ki-moon recently called current plans of continued expansion of Israeli settlements ‘unhelpful’ and undermining the ‘progress towards the two-state solution’, and called on ‘Israel to heed the calls of the international community to freeze settlement activity and abide by its commitments under international law.’[10]

Brinkhorst noted that the Netherlands should, first, stop intensifying the bilateral relations until there is some change concerning the settlements, and second, stop blocking a European policy on the labelling of products. He also concluded that Europe has a special responsibility for the vanishing of the two-state solution.

Shared Responsibility?

Both presentations supported the view that all states have responsibilities with regard to the conflict. All states might be required by international law, as suggested by Dugard, to make sure that products must not only be labelled but also banned in their territories, which would amount to a de facto boycott of products coming from the Occupied Territories.

The question also arises as to whether the argument of Brinkhorst, that the Netherlands should stop intensifying the bilateral relations with Israel until there is some change concerning the settlements, can be applied to all states.

This debate emphasised (through the obligation not to aid or assist) that third states do have an obligation to do something. More can and must be done by states in order for them to live up to their obligations under international law, to ‘wake up’ Israel, and bring an illegal situation to an end.

__________________________

[1] Article 1 reads as follows: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

[2] Article 41 on particular consequences of a serious breach of an obligation under part two, chapter III entitled: serious breaches of obligations under peremptory norms of general international law reads as follows: 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

[3] Human Rights Council, UNGA/HRC/22/63 (7 February 2013), Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, conclusions, p. 21, paragraph 102, available here. See also conclusions, p. 21, paragraph 104: ‘The mission considers that, with regard to the settlements, Israel is committing serious breaches of its obligations under the right to self-determination and certain obligations under international humanitarian law, including the obligation not to transfer its population into the Occupied Palestinian Territory (…).’

[4] Ibid, report, recommendations, p. 23, paragraph 116: ‘The mission calls upon all Member States to comply with their obligations under international law and to assume their responsibilities in their relations with a State breaching peremptory norms of international law, and specifically not to recognize an unlawful situation resulting from Israel’s violations.’

[5] Article 16 reads: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and(b) the act would be internationally wrongful if committed by that State.

[6] James Crawford, Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, Opinion, 24 January 2012, p. 58, paragraph 135.

[7] Ibid.

[8] A report entitled TRADING AWAY PEACE: How Europe helps sustain illegal Israeli settlements, published on 30 October 2012 by a consortium of 20 European NGO’s, concludes that although the EU is consistent in condemning the settlement policy, and defines the Israeli settlements in the Occupied Palestinian Territories as unlawful under international law, the policies of the EU help sustain the settlements because of trade with the Israeli settlements. This report recommends concrete measures that both the EU and individual member states can take in order to ensure that their policies do not either directly, or indirectly support the illegal Israeli settlements. This report is available here; see also here. For a recent development in the Netherlands concerning supermarket boycotts see here (in Dutch).

[9] See Crawford on the Association Agreement in his Opinion, note 6, p. 59, paragraph 138.

[10] United Nations Secretary-General, Latest Statements, Statement attributable to the Spokesperson for the Secretary-General on continued Israeli settlement activity in the West Bank, New York, 14 June 2013, see here.

A shared responsibility trap: supplying weapons to the Syrian opposition

 Posted by: Nollkaemper André

Cross posted on EJIL: Talk!

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed earlier by Dapo Akande at EJIL talk. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ‘humanitarian intervention’, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.  

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

‘The Allocation of International Human Rights Duties (and Responsibilities) to Multiple Duty-bearers’, A Discussion of Samantha Besson’s SHARES Lecture

 Posted by: Have Nienke van der

During a SHARES lecture on 6 June, Prof. Samantha Besson presented a recently published chapter on the allocation of international human rights duties and responsibilities for human rights in SHARES context. Building on the work of Henry Shue, among others, she offers a theory to bring our understanding of the supply side of human rights to the next level. Due to the complexity of this task, other human rights theorists have so far largely resorted to pragmatic and strategic reasoning instead of forwarding a morally coherent approach. Besson clarifies the steps to be taken as: (i) identification of human rights duties (ii) identification and justification of human rights duty-bearers; and (iii) allocation of human rights duties to human rights duty-bearers. In her contribution to a book on Poverty and the International Economic System, she argues that insufficient delineation of human rights duties and an unreflected use of the term ‘responsibilities’ for human rights has led to a conflation of the two, which diminishes clarity when it comes to identification and allocation of tasks on the supply-side.

First, in explaining human rights duties, Besson outlines that human rights are abstract norms, while duties can only be specified in a given context and in relation to a concrete threat. One right can be the basis for more correlate duties to respect, protect or fulfill and such duties can evolve over time and space. As such, duties need to be localized to be identified and consequently allocated. Moving on to the identification of duty-bearers, Besson defends an institutional account of human rights, with institutions as the primary human rights duty-bearers. She submits that human rights duties ought to be borne by national and regional polities’ institutions because human rights are systematic and egalitarian by nature, strongly linked to democracy and because institutions offer the best platform to allocate duties in practical sense. Which institutions bear duties in a certain case is determined on the basis of which institution has jurisdiction over the right holders, in the sense of effective control or authority and control. In this institutional account of human rights, individuals are subsidiary duty-bearers, whose duties only arise when they are allocated to them by these institutions or when institutions have failed. In the latter case, Besson argues that individuals mainly have duties to create institutions to then be able to secure human rights. International Organizations (IOs) generally do not have human rights duties but only responsibilities for human rights. However, post-national structures like the European Union, which can be said to constitute a polity when governing a group of individuals with equal and interdependent stakes, may have human rights duties.

Moving on to responsibilities for human rights, as opposed to duties, these are described as abstract moral requirements which are not necessarily correlate to a right. As examples, Besson mentions the Responsibility to Protect (RtoP) or the United Nations human rights responsibilities. These moral responsibilities are related to and co-existent with human rights duties, but their content is much less specific and there is a lack of institutions with the ability and legitimacy to allocate them. Besson identifies three sets of bearers of responsibilities for human rights. First, responsibilities are borne by individuals, although there is not much they can do in practice because of coordination limitations. Second, institutions other than those of the human rights duty-bearing state may also bear responsibilities, acting as instruments of global justice or as representatives of an aggregate of individual responsibility-bearers. Finally, IOs may bear responsibilities for human rights, primarily in their role as frameworks for state cooperation. The allocation of such responsibilities involves assessments of the fairness of the individual burden of various responsibility-bearers. Six grounds of distribution, identified by David Miller, may be used cumulatively, alternatively or in cascade. These grounds being: outcome, causality, harm, capacity, benefit or special ties. Miller’s proclaimed problem of re-distribution is also paid homage by Besson in the context of allocating responsibilities for human rights. The problem of re-distribution describes that it is difficult to justify global re-distribution of broad and unspecific responsibilities for human rights and the consequences this has for a state’s resources, if allocation of specific human rights duties has already taken place domestically or regionally. This results in a situation where distribution remains largely a matter of judgment of each potential responsibility-bearer in each case.

This theoretical background allows for closer scrutiny of the distribution of shared state duties and responsibilities. First of all, with regard to the distribution of human rights duties, the role of institutions is described as providing a platform for deliberation to set priorities and discuss the distributive principles on the basis of which duties should be allocated. Besson marks jurisdiction as the defining criterion to determine which institution is the platform for deliberation in any particular case. However, the picture may become obfuscated when multiple institutions belonging to different polities have jurisdiction over the same group of rights-holders. Even though different institutions have specific jurisdictional relationships with the right-holders, giving rise to a specific set of duties, additional grounds for distribution could be useful in such cases as a way of ensuring cumulative or at least complementary protection. Besson ventured that there may exist a duty of states in extraterritorial settings to allocate duties among itself and third states, but in the long run this could, for example, hinder self-determination. With regard to the distribution of responsibilities for human rights and the problem of re-distribution, it may be noted that a situation in which each potential responsibility-bearer determines for itself what part of a responsibility it assumes leaves much room for free-riding and buck-passing. Besson agreed that there may be other over-arching principles than the six grounds for distribution identified by Miller which could perhaps offer a framework for the distribution of responsibilities in the area of (different) human rights. An example could be the principle of common but differentiated responsibility (for more background information, see here), which has for instance been used in environmental law to distribute common responsibilities for climate change on a differentiated basis with reference to different actor’s capacities and historical contribution to a problem.

Finally, the duty to make institutional arrangements to secure human rights arguably exists both at the level of human rights duties and that of responsibilities for human rights. At the duties level, Besson argues that individuals have a duty under human rights law to set up institutions to secure human rights. She agreed that a similar construction at the level of responsibilities may be the most effective way forward in terms of operationalization, meaning that states have a moral responsibility to set up institutions to realize responsibilities for human rights. An example is contained in Principle 30 of the Maastricht Principles on the Extraterritorial Applicability of Economic, Social and Cultural Rights, which outlines a responsibility of states to make institutional arrangements to allocate responsibilities for ESC rights (for more background information, see here). Besson did, however, stress that it remains of importance to underwrite the difference between duties and responsibilities for human rights – something which is at times lacking in the Maastricht Principles and Commentary.