Palestinian Civil Society's Role in Advocating Adherence to International Law

Presentation by Al-Haq to the UN International Meeting on the Question of Palestine on Implementing the ICJ Advisory Opinion

9 March 2005

It is well-known that Palestine has a vibrant civil society, with non-governmental organisations (NGOs) working on such varied issues as education, health, human rights, the environment, gender, youth, culture, and labour.  In the 26 years since Al-Haq was founded as the first human rights NGO in the Occupied Palestinian Territories (OPT), the number of NGOs has multiplied, and they play an important role in providing services, raising awareness, challenging the occupation, and ultimately, in developing the foundation for a Palestinian state adhering to democracy and rule of law.

The Role of Palestinian Civil Society in Promoting Compliance with International Law

There are four main ways in which Palestinian civil society promotes compliance with international law: gathering and disseminating information; campaigning and advocacy; undertaking litigation; and providing education and training to Palestinian society.  Each of these activities seeks to apply strategic pressure in order to increase Israeli compliance with international law.

Gathering and disseminating information

Amongst the most important contributions of Palestinian NGOs are the gathering and dissemination of information about current developments on the ground, serving as a barometer of the human rights situation in the OPT.  The backbone of organisations like Al-Haq is their monitoring and documentation staff, for it is these individuals who investigate and verify the abuses of international law.  This information is analysed from a legal perspective and relayed to the international community via press releases, interventions, and reports.  The ability to make credible and up-to-date information about human rights violations readily available is one of the most fundamental tasks undertaken by Palestinian civil society.

Recipients of this information - such as international NGOs, international organisations, jurists, media and diplomats - use it in their own work and advocacy efforts.  Most of these efforts contribute in the process of "naming and shaming," a key strategy used in human rights advocacy.  Further, each type of recipient can contribute based upon its special interest or target group, so that consular offices can apply diplomatic pressure, for example, while jurists can utilise information to apply pressure through legal bodies.

A related activity which Palestinian civil society undertakes is assisting others in obtaining access to information.  NGOs often assist others in their work on the ground, providing them with contacts and access to victims of human rights violations and other essential information-gathering tasks.  As with all means of providing access to information, such activities are frequently based on partnerships with other organisations; the contribution of Palestinian NGOs is essential to the ability of partner institutions to carry out their work.

Campaigning and advocacy

Palestinian NGOs regularly utilise direct means of promoting compliance with international law through campaigning and advocacy.  These activities include alerting diplomatic missions in the OPT, advocacy before international organisations, outreach to the international media, and undertaking campaigns.  Some of this work is done individually, while some is undertaken jointly through coalitions, such as the Palestinian NGO Network (PNGO) or the popular campaign against the Wall.  Al-Haq, for example, regularly issues interventions and press releases, and raises concerns with diplomatic missions.  Over the years, the organisation has undertaken campaigns on family unification and house demolition, and currently is focusing on the issue of collective punishment and measures of intimidation, such as the Wall.

These types of activities also contribute to the naming and shaming process.  Moreover, they serve as another means to provide information about ongoing human rights violations in the OPT.  In some instances, advocacy by Palestinian NGOs motivates other groups, such as international NGOs, to undertake more work domestically or internationally on a given issue.  In addition, campaigning and advocacy can result in increased diplomatic pressure on the Israeli authorities to stop egregious violations.

Litigation

A number of Palestinian NGOs contribute directly or indirectly to efforts to legally challenge Israeli practices which are in breach of international legal norms.  Such challenges can be carried out in Israeli or international courts.  Using the Israeli courts is a controversial matter, as many Palestinians believe that they cannot obtain justice from the Israeli judicial system.  Some organisations will submit only test cases, such as Al-Haq's current test case on the question of Israeli inaction in response to settler violence in Hebron .  Other organisations focus a substantial part of their work in using the Israeli legal system to challenge these illegal practices.

NGOs involved in litigation also submit legal challenges in various national jurisdictions.  Many of these cases utilise the Geneva Convention Acts in third-party states.  One of the best-known examples of litigation in third-party states was the case in Belgium against Ariel Sharon.  Arguably one of the most difficult aspects of this approach is proving the right of the petitioner to be heard in a particular jurisdiction.  It is for this reason that those undertaking such litigation have a particular challenge in finding not merely the right issue on which to litigate, but the right individuals on whose behalf to petition.

Litigation before national courts plays an obvious role in promoting compliance with international law.  At a minimum, legal challenges are important in naming and shaming authorities responsible for Israel 's systematic violations of international law.  Legal challenges to Israeli practices of house demolition, targeted assassinations, use of Palestinians as human shields, and discrimination in family unification have all gotten a substantive amount of attention from the international community, which itself serves as a means of pressuring Israeli authorities.  Moreover, this is an area where NGOs are less limited by the frustrating lack of enforceability of many provisions of international law, as the very purpose of litigation is to enforce law.  In some instances, it gives NGOs an opportunity to challenge fundamental Israeli interpretations of international law, such as the recent petition regarding house demolitions in Rafah, in which petitioners raised the matter of the Israeli interpretation of "military necessity."

In those few instances where a more positive outcome has been realised, it serves to increase the legal pressure faced by Israeli officials.  Proponents of this approach state that domestic litigation not only serves the vital legal task of exhausting domestic remedies, but can also unveil important information for future efforts to obtain justice.  A significant example was the petition before the High Court in April 2002 in which the State Attorney admitted that in some instances the Israeli military had begun to demolish some houses even before the residents had left. [1]  While the Court nevertheless dismissed the petition, this admission is something that human rights defenders can use in the future in seeking justice.  Lastly, litigation may also result in increased diplomatic pressure.

Providing education and training to Palestinian society

NGOs have an important task in increasing awareness-building of international legal standards in Palestinian society.  Many organisations such as Al-Haq include training and education in international human rights or humanitarian law as a substantive part of their programme activities each year.  In order for civil society to be able to continue advocating for adherence to international law, it must be informed about it.  With this in mind, NGOs carry out trainings to many components of Palestinian society.  This type of awareness-building is important in training current and future generations of civil society leaders.  Like all other means of promoting compliance with international law, this serves to sensitise society about human rights standards.  NGOs carry out other forms of awareness-building as well, in particular through dissemination of legal standards and other Know Your Rights material.  Al-Haq also houses an extensive library of international human rights and humanitarian legal texts which is open to the public.  These kinds of activities all play an important role in keeping international law on the agenda.

Having considered each of these means by which Palestinian civil society promotes compliance with international law, it is worth noting that arguably the simplest way in which Palestinian civil society promotes such compliance is by fighting for civil society itself.  By ensuring that Palestine continues to have a vibrant civil society, NGOs are playing an important task in nation-building and promoting respect for the rule of law.

How Palestinian Civil Society is Using the ICJ Advisory Opinion in Its Work

The next question is how Palestinian NGOs are utilising the ICJ Advisory Opinion in these activities.  At the most basic level, Palestinian civil society has adopted the Advisory Opinion as a reference point in its work to promote Israeli compliance with international law.  This can be seen in citations to the Opinion in press releases, interventions, reports, and countless other advocacy materials.  While the primary focus of the Advisory Opinion was the Wall, its clear references to other key issues, such as Israeli settlements and the Palestinian right to self-determination, are such that the Opinion is of relevance to other fundamental human rights struggles in the OPT.  With this in mind, Palestinian NGOs have adopted the language of the Opinion in their daily activities.

The use of the Advisory Opinion as a tool to realise change is also seen in Palestinian partnerships domestically and with international civil society organisations.  A key example of such domestic partnerships is the popular campaign against the Wall.  This campaign was initially established by PENGON, the network of Palestinian environmental organisations, but has since been structured into a national campaign in which a broader range of organisations is taking part.  At the international level, the Palestinian NGO Network is developing an action strategy, presently aimed at Europe , which uses the Opinion as its focal point.  Palestinian NGOs are also working together with groups like the Aprodev donor agencies and the Euro-Mediterranean Human Rights Network on advocacy around the Wall, the EU-Israel Association Agreement, and other related matters 

The Advisory Opinion is viewed by a number of organisations as a step in a series of legal measures comparable to those utilised in the struggle against apartheid.  It is evident that this is not accidental; indeed, the wording of the referral to the ICJ was drafted in a manner reminiscent of comparable referrals to the Court in regards to Namibia .  The advisory opinions and judgments resulting from the question of Namibia were key factors leading to the boycott on South Africa and the ultimate downfall of the apartheid regime.  While it is perhaps unwise to view the legal situation in apartheid South Africa as precisely the same as that in the OPT, it is important that Palestinian NGOs are trying to learn the lessons from their struggle, in particular, how to best utilise Opinions from the ICJ.

This being said, it must be noted that Palestinian civil society has not fully utilised this "new tool" provided by the ICJ.  This is perhaps due to a lack of understanding what is in the Advisory Opinion, or the ongoing cynicism about the UN and international law.  To some degree, it also relates to concerns about certain aspects of the Opinion, in particular the concerns regarding the registry of damages, as there are concerns that financial restitution will serve as a substitute for halting the Wall's construction and dismantling those sections built to date.  Nevertheless, it is submitted that civil society must take action on the Advisory Opinion because civil society itself is one of the key components necessary to effect change on the ground.  Making increased practical use of the Opinion remains one of the key tasks ahead of Palestinian civil society.

It is particularly important for Palestinian civil society to be utilising the Advisory Opinion in light of the Israeli response to the Opinion itself.  While officially continuing to reject the Opinion, Israeli authorities are at the very least discomforted by it, and a number are acutely aware of the legal vulnerability they now face.  One of the most substantive indicators of this shift was the comment of Attorney General Menachem Mazuz, who stated that "[t]he ICJ decision creates a legal reality for Israel , which could serve as an excuse and a catalyst for activity against Israel in international forums, to the point of sanctions." [2]  Israeli High Court judges have also made some interesting comments over the last several months, reflecting an increased interest in human rights reports produced by the UN and international human rights organisations.  It seems evident that there is a concern on the part of Israeli jurists regarding the international perception of Israeli practice and judicial approval thereof.

Unfortunately, however, the official response of the State unfortunately remains the same.  Less than two weeks ago, the Israeli Ministry of Justice issued an extensive written brief on the legal implications of the Advisory Opinion.  The main findings of the brief were that the factual basis on which the Opinion was based was lacking, inexact and outdated, and irrelevant due to changes in the Wall's route and "improvements" in providing for the needs of affected Palestinians.  The Ministry found that the Opinion should have no application upon the cases being considered by the Israeli courts.  From this, it appears evident that the ongoing Israeli rejection of the application of international legal norms to the OPT, and their accountability under these norms, has not substantially changed.

Recommendations & Conclusion

This rejection and the substantive continuation of Israeli violations of international law in the OPT highlights one of the key challenges faced by Palestinian NGOs.  Many of these measures will serve as leverage to pressure the Israeli authorities to comply with their international obligations, but it is much harder to actually end the violations themselves.  This is, admittedly, a problem faced by civil society organisations around the globe, in light of the difficulty in enforcing human rights legal standards.  Despite the Israeli rejection of the Opinion, its value as a tool in implementing new and creative measures to reduce and bring to an end the many violations of Palestinians' fundamental rights should not be underestimated.

It is perhaps stating the obvious to say that civil society in general has a substantive moral interest in and commitment to increasing respect and adherence to international law.  For Palestinian NGOs, however, the commitment is both moral and personal.  Palestinian civil society advocates live with the daily reality of disrespect of international law, and live firsthand with the consequences of that disrespect and its impact both on their lives and their work.  This work is not easy, not just because of the difficult environment in which it is carried out, but because of the increasing cynicism on the part of the Palestinians themselves.  There is an inherent scepticism about international law, and it is not uncommon to hear Palestinians on the street question whether human rights really exist, in light of the frequency with which Israelis violate them in the OPT.  This reflects the general sense of hopelessness that is prevalent on the streets of Ramallah and elsewhere throughout the OPT.

This being said, Palestinian civil society remains committed to international legal norms, and the use of advocacy to strive for their respect.  NGOs are an important link; they serve as a critical component in ensuring the functioning of international law.  In regards to advocacy on the Wall in the aftermath of the Advisory Opinion, Al-Haq believes that there are several things that Palestinian and international civil society could focus on in order to promote Israeli compliance with international law:

      •   Ensure that third-party states are not taking actions which are aiding or assisting in the construction of the Wall in the OPT.  International civil society organisations should be monitoring the actions of their own governments to ensure that they are not providing such assistance, either directly or indirectly through domestic corporations.  Such actions include the provision of financial assistance to "improve" the gates in the Wall, or governmental inaction in regards to corporations like Caterpillar in the US or CRH in Ireland which are assisting in the building of the Wall.  Civil society organisations in these countries can campaign, lobby, and bring legal challenges regarding such violations of their governments’ duties.

      •    Monitor and utilise bilateral agreements between Israel and third-party states.  Agreements such as the EU-Israel Association Agreement and scientific or technical agreements can be used as leverage to pressure Israel to comply with its obligations under international law.  This includes the use of benchmarks to assess Israeli compliance.  NGOs should ensure that third-party states involved in such agreements are not taking steps which violate their obligations under international law.  As my colleagues have stated over the last day and a half, this includes not merely the construction of the Wall, but the construction and expansion of Israeli settlements and the entire regime associated with the Wall’s construction.

      •   Third-party states have obligations as High Contracting Parties to the Fourth Geneva Convention, in particular the obligation to respect and ensure respect for the Convention’s provisions.  While it is recognised that previous meetings have been short in duration, to say the least, the issuance of the Advisory Opinion gives renewed possibilities for a meeting of the High Contracting Parties.

      •   In light of the current sense of optimism regarding the possibility of a solution to the conflict, it is important to stress that the Advisory Opinion and other aspects of international law must be utilised as a key reference point in political negotiations.  This should be born in mind nut just by Israeli and Palestinian officials, but by members of the Quartet and other interested parties involved in the process.  A just and durable solution to the conflict must be based on respect for international law; civil society must not concede to efforts to ignore or "negotiate away" rights and duties.

As has been repeatedly noted by speakers throughout this conference, the Advisory Opinion has given us an extraordinary tool, one whose underlying message is simply adherence to international law.  The task before us now is to work together, and speaking in one voice, to utilise it to its fullest.