THE ROLE OF INTERNATIONAL COURT OF JUSTICE IN INTERNATIONAL DISPUTE SETTLEMENT, PART 5

Chapter-Six : Recent Activities Israel and Palestinian, Organization

RECENT ACTIVITIES ISRAEL AND PALESTINIAN:

The International Court of Justice has ruled that Israel is in breach of international law by establishing settlements in Occupied Palestinian Territory, including East Jerusalem. The Court maintains that Israel cannot rely on its right of self-defense or necessity to impose a regime that violates international law. The Court also ruled that Israel violates basic human rights by impeding liberty of movement and the inhabitants’ right to work, health, education and an adequate standard of living. ‘

International intergovernmental organizations such as the Conference of the High Contracting Parties to the Fourth Geneva Convention, major organs of the United Nations, the European Union, and Canada regard the settlements as a violation of international law. There is a consensus among publicists that the prohibition of racial discrimination, irrespective of territories, is an imperative norm of international law. Amnesty Internationa], and Human Rights Watch have also characterized the settlements as a violation of international law. In 1978, the Legal Adviser of the Department of State reached the same       conclusion.

In 1967, Theodor Meron, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to the Prime Minister, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention. The legal opinion, forwarded to Prime Minister Levi Eshkol, was not made public at the time, and the Labor cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Meron stated that “I believe that I would have given the same opinion today.

Julius Stone said that the notion that establishing settlements violates Article 49(6) was “irony bordering on the absurd”: “We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever Jude rein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories Jude rein, has now come to mean thatD.f V’l.Hthe West Bankn. D.n.Dmust be made Jude rein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).

In 1998 the Israeli Minister of Foreign Affairs produced “The International Criminal Court Background Paper. It concludes International law has long recognized that there are crimes of such severity they should be considered international crimes. Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions The following are Israel’s primary issues of concern with the rules of the ICC]: The inclusion of settlement activity as a “war crime” is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.

Human rights organizations

Settlements (darker pink) and areas of West Bank (lighter pink) where access to Palestinians was closed or restricted, January 2006 Amnesty International argues that Israel’s settlement policy is discriminatory and a violation of Palestinian human rights.  Tselem claims that Israeli travel restrictions impact on Palestinian freedom of movement and Palestinian human rights have been violated in Hebron due to the presence of the settlers within the Tselem, over fifty percent of West Bank land expropriated from Palestinians has been used to establish settlements and create reserves of land for their future expansion. The seized lands mainly benefit the settlements and Palestinians cannot use them. The organization also claims that roads built by Israel in the West Bank that are closed to Palestinian vehicles are ‘discriminatory. 

Economy

Palestinian officials estimate that settlers sell goods worth some $500 million to the Palestinian market. European Union law requires a distinction to be made between goods originating in Israel and those from the occupied territories. The former benefit from preferential custom treatment according to the EU-Israel Association Agreement (2000); the latter don’t. In 2009, the United Kingdom’s Department for the Environment, Food and Rural Affairs issued new guidelines concerning labelling of goods imported from the West Bank. The new guidelines require labelling to clarify whether West Bank products originate from settlements or from the Palestinian economy. Israel’s foreign ministry said that the UK was “catering to the demands of those whose ultimate goal is the boycott of Israeli products”; but this was denied by the UK government, who said that the aim of the new regulations was to allow consumers to choose for themselves what produce they buy.

The Israeli Supreme Court has ruled that Israeli companies, are entitled to exploit the West Bank’s natural resources for economic gain, and that international law must be “adapted” to the “reality on the ground” of long-term occupation. 

Incidents of violence

Gush Emunim Underground was a militant organization that operated in 1979-1984. The organization planned attacks on Palestinian officials and the Dome of the Rock. In 1994, Baruch Goldstein of Hebron, a member of Kach carried out the Cave of the Patriarchs massacre, killing 29 Muslim worshipers and injuring 125. The attack was widely condemned by the Israeli government and Jewish community. The Palestinian leadership has accused Israel of “encouraging and enabling” settler violence in a bid to provoke Palestinian riots and violence in retaliation.

Leading religious figures in the West Bank have harshly critici cd these tactics. Rabbi Menachem Froman of Tekoa said that “Targeting Palestinians and their property is a shocking thing, (…) It’s an act of hurting humanity. (…) This builds a wall of fire between Jews and Arabs. The Yesha Council and Hanan Porat also condemned suchactions. Other rabbis have been accused of inciting violence against non-Jews. response to settler violence, the Israeli government said that it would increase law enforcement and cut off aid to illegal outposts.’ Some settlers are thought to lash out at Palestinians because they are “easy victims.

In September 2011, settlers vandalized a mosque and an army base. They slashed tires and cut cables of 12 army vehicles and sprayed graffiti. In November 2011, the United Nations Office for Coordination of Human Affairs (OCHA) m the Palestinian territories published a report on settler violence that showed a significant rise compared to 2009 and 2010. The report covered physical violence and property damage such as uprooted olive trees, damaged tractors and slaughtered sheep. The report states that 90% of complaints filed by Palestinians have been closed without charge. 

Impact on peace process

Main article: Peace process in the Israeli-Palestinian conflict Gush Katif was a block of 16 Israeli settlements in the southern Gaza Strip. Its 8.000 residents were forced to leave and had their homes demolished in August 2005 as part of Israel’s unilateral disengagement plan.

The settlements have been a source of tension between Israel and the U.S. Jimmy Carter regarded the settlements as illegal and tactically unwise. Ronald Reagan stated that they were legal but an obstacle to negotiations In 1991, the U.S. delayed a subsidized loan to pressure Israel on the subject of settlement-building in the Jerusalem-Bethlehem corridor. In 2005, U.S.

Final status proposals have called for retaining long-established communities along the Green Line and transferring the same amount of land in Israel to the Palestinian state. The Clinton administration proposed that Israel keep some settlements in the West Bank, especially those in large blocs near the pre-1967 burden ofhrad, with the Palestinians receiving concessions of land in other pails of the country. Both Clinton and Tony Blair pointed out the need for territorial and diplomatic compromise based on the validity of some of the claims of both sides.

In December 2010, the United States criticised efforts by the Palestinian Authority to impose borders for the two states through the United Nations rather than through direct negotiations between the two sides. In February 201 1, it vetoed a draft resolution to condemn all Jewish settlements established in the occupied Palestinian territory since 1967 as illegal. The resolution, which was supported by all other Security Council members and co-sponsored by over 120 nations. would have demanded that “Israel, as the occupying power, immediately and completely ceases all settlement activities in the occupied Palestinian territory, including East Jerusalem and that it filly respect its legal Obligations in this regard. The U.S. representative said that while it agreed that the settlements were illegal, the resolution would harm chances for negotiations Israel’s deputy Foreign Minister, Daniel Ayalon, said that the “UN serves as a rubber stamp for the Arab countries and, as such, the General Assembly has an automatic majority. and that (he vote “proved that the United States is the only country capable of advancing (he peace process and the only righteous one speaking the truth: that direct talks between Israel and the Palestinians are required. Palestinian negotiators, however, have refused to resume direct talks until Israel ceases all settlement activity.

PROPOSALS FOR LAND SWAP

The Clinton Parameters included a plan on which the Palestinian State was to include 94-96% of the West Bank, and around 80% of the settlers were to remain under Israeli sovereignty, and in exchange for that, Israel will concede some territory (so called Territory Exchange’ or ‘Land Swap’) within the Green Line (1967 borders). The swap would consist of 1-3% of Israeli territory, such that the final borders of the West Bank, part of the Palestinian state would include 97% of the land of the original borders.

Under any peace deal with the Palestinians, Israel intends to keep the major settlement blocs close to its borders, which contain over 80% of the settlers. Prime Ministers Yitzhak Rabin, Ariel Sharon, and Benjamin Netanyahu have all stated Israel’s intent to keep such blocs under any peace agreement. U.S. President George W. Bush acknowledged that such areas should be annexed to Israel in a 2004 letter to Prime Minister Sharon.

According to Mitchell G. Bard: “Ultimately, Israel may decide to unilaterally disengage from the West Bank and determine which settlements it will incorporate within the borders it delineates. Israel would prefer, however, to negotiate a peace treaty with the Palestinians that would specify which Jewish communities will remain intact within the mutually agreed border of Israel, and which will need to be evacuated. Israel will undoubtedly insist that some or all of the “consensus” blocs become part of Israel. 

Proposal of dual citizenship

A number of proposals for the granting of Palestinian citizenship or residential permits to Jewish settlers in return for the removal of Israeli military installations from the West Bank have been fielded by such individuals as Arafat, Ibrahim Sarsur and Ahmed Qurei.

The idea has been expressed by both advocates of the two-state solution   ‘   and supporters of the settlers and conservative or fundamentalist currents in Israeli Judaism that, while objecting to any withdrawal, claim stronger links lo the land than to the state of Israel.

Impact on Palestinian demographics

Sushil P. Seth writes that Israelis seem to feel that increasing settlements will force many Palestinians to flee to other countries and that the remainder will be forced to live under Israeli terms.

Human Rights Watch has determined that Israeli settlement policies has had the effect of “forcing residents to leave their communities”.

In 2008, Condoleezza Rice suggested sending Palestinian refugees to South America, which might reduce pressure on Israel to withdraw from the settlements.

Palestinian Statehood bid of 2011

American refusal to declare the settlements illegal was said to be the determining factor in the 2011 attempt to declare Palestinian statehood at the United Nations, the so-called Palestine 194 initiative.

Israel announced additional settlements in response to the Palestinian diplomatic initiative and Germany responded by moving to stop deliveries to Israel of submarines capable of carrying nuclear weapons. 

Educational institutions

Ariel University Center of Samaria, formerly the College of Judea and Samaria, is the major Israeli institution of higher education in the West Bank. It is Israel’s largest public college. The college was accredited in 1994 and awards bachelor degrees in arts, sciences, technology, architecture and physical therapy. Teacher training colleges include Herzog College in Alon Shvut and Orot Israel College in Elkana. Ohalo College is located in Katzrin, in the Golan Heights. Curricula at these institutions are overseen by the Council for Higher Education in Judea and Samaria (CHE-JS).

Evacuation of Neve Dekalim.The evacuation was carried out with force in some instances, for example in Yamit. The settlements were demolished, as it was feared that settlers might try to return to their homes after the evacuation. srael’s unilateral disengagement plan took place in 2005. It involved the evacuation of settlements in the Gaza Strip and part of the West Bank, including all 21 settlements in Gaza and four in the West Bank, while retaining control over Gaza’s borders, coastline, and airspace.Within the former settlements, almost all buildings were demolished by Israel, with the exception of certain government and religious structures, which were completely emptied. Under an international arrangement, productive greenhouses were left to assist the Palestinian economy but these were destroyed within hours by Palestinian looters.  Following the withdrawal, many of the former synagogues were torched and destroyed by Palestinians.

Recommendation

The modern proliferation of international courts and tribunals and the increasing use of binding third party adjudication to settle international disputes have neither achieved significant developments in international environmental law nor advanced the state of global environmental governance. In order to prevent further deterioration of natural resources and achieve environmental justice, the international community needs to rethink the existing alternatives for the improvement of the international judicial system.

The International Court of Justice (ICJ or the “World Court”) is the principal judicial organ of the United Nations and has general authority over any international law question, including environmental issues. The Statute of the Court includes many conservative procedural provisions, such as the ability of each state to determine whether it chooses to be subject to the decisions of the Court. Each state also has the option to accept ICJ jurisdiction based on a set of limitations and conditions. Furthermore, only states themselves can represent their interests before the court, and non-state actors therefore have no standing.

Despite these substantial limitations, the authority of the ICJ is singular within the international judicial system. UN member-states have committed to undertake to comply with the decisions of the Court, and the UN Security Council is authorized to assist the Court by enforcing its decisions. An important additional procedural step took place in 1993, when the Court established a special seven-member standing Chamber for Environmental Matters to play a more proactive role in environmental disputes. However, because the members of the Chamber are not required to hold any particular expertise on environmental matters, it is doubtful whether the establishment of the Chamber will contribute as essentially as expected to the development of innovative and meaningful environmental jurisprudence. The Chamber has yet to hear case. In its decisions, ICJ has reaffirmed principles of international environmental law, such as Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. However, the judgments have heen criticized by academia and civil society as conservative and environmentally insensitive. The Court did not adopt progressive legal interpretations that might have led to important developments of the body of international environmental law and regulation of critical environmental issues. The ICJ has also been criticized for its minimalist approach to decision-making; several notable cases have been dismissed on procedural grounds. In these cases, the dissenting opinion found the majority to be too reductionist and posititivist in its legal method and concluded that the ICJ had the duty to undertake a more proactive and flexible approach, in order to make a contribution to some of the seminal principles of the evolving corpus of international environmental law.

Dispute settlement is identified as a principle function of the World Trade Organization (WTO). The WTO dispute settlement process begins with consultations and proceeds with GATT conciliation or mediation services. A parry may request that the dispute be heard by a panel, which receives submissions from all interested parties and issues a report. The Dispute Settlement Body (DSB) adopts the panel’s report unless there is joint opposition to such adoption. Any of the parties to the dispute may appeal the panel’s decision to the Appellate Body, a standing body of seven members. Parties are required to implement the panel ruling within a “reasonable period of time.” If ruling is not implemented, the injured party may be compensated and retaliatory measures may be undertaken.

Several steps were undertaken during the Uruguay Round to improve the effectiveness of the dispute settlement process. Finally, the WTO panels are not required to take into consideration international law regimes such as international environmental agreements and the customary international law. WTO agreements have created a seif-contained and self-referential” regime. Despite efforts to achieve consistency between existing multilateral environmental agreements and the trade regime, these two have not been adequately integrated.

The European Court of Justice (ECJ) plays an essential and meaningful role within the European Community (EC). National courts and governments tend to respect its decisions. While it is not a specialized environmental court, ECJ is authorized to hear environmental cases on grounds of non-compliance of a Member State with the European Community’s environmental laws. ECJ also is authorized to render preliminary rulings on the interpretation of primary or secondary European Law, including environmental law. ECJ structure does not provide for a specialized chamber on environmental issues. The ECJ has contributed to the protection of the natural environment in the European region. It has accepted more than 150 environmental cases and has rendered important environmental jurisprudence. It was the first Court to acknowledge many principles of international environmental law such as the precautionary principle. As national courts have funneled preliminary questions to the ECJ, it has succeeded in clarifying environmental rules and has influenced both the harmonization of the application of EC environmental law and the development of national environmental law. In addition, ECJ, as a multi-issue court, has been able to evaluate and balance environmental protection in conjunction with other public interests such as economic development.

The European Court of Human Rights (ECHR), established under the auspices of the Council of Europe in 1950, is entrusted with monitoring state-party compliance with the European Convention on Human Rights and Fundamental Freedoms (the Rome Convention). ECHR has developed progressive interpretations of legal documents for the protection of human rights and is a very successful example of a regional judicial body. It has attributed compensation to individuals suffering from environmental harm or noise pollution through application of Article 8 (protection of private life and family life.) However, similar “environmental” decisions have not been forthcoming. The Court stated in the recent case that it is unable to provide comprehensive environmental protection due to the limits of the Convention and its additional Protocols.

These weaknesses demonstrate the inability of most existing judicial bodies to effectively address major international environmental issues. Most of the courts were established in order to serve a specific treaty or international organization, and they are limited in their subject matter jurisdiction. The courts are obliged to deal with environmental issues only in relation to other fields of international law or while seeking to serve different purposes, such as the promotion of free trade or the protection of human rights.

Exactly because these bodies are not structured to judge environmental cases, their staffs lack the expertise to do so. Non-specialized international judges often are unable to apply the complex, vague and incomplete norms of international environmental law. ICJ itself, in the Gabcikovo- Nagymaros Project case admitted that the application of the international environmental law is not an easy task. In that case, the ICJ judges had to be educated in the environmental and scientific aspects of the dispute before they judged the case.

Finally, in most cases, international tribunals seem to follow a “minimalist” view, through which they focus on the specific settlement of disputes between the parties and devote only minimal attention to the broader policy implications of their judgments for the development of law. Scholars have noted this approach in many of the ICJ decisions. This “minimalist” perspective limits the broader consideration of environmental issues associated with specific disputes.

The development of a system that connects international courts will be required to distribute cases among the ICE and other international judicial bodies. Provisions establishing closer cooperation between the courts would be useful.

National courts are not adequate to fully deal with environmental cases arising at the international level or, in some cases, even at the national icvd. Many environmental issues are transboundary in nature and require international institutions to manage them. In She process of globalization of the contemporary sociely, more and moi’e transactions] activities affect adversely the natural environment. Current international judicial bodies function regimes whose purposes and values are not always aligned with that of environmental protection, Some of these bodies were established in an environmentally innocent era, when the prolecilon of Use environment was not elevated as a fundamental societal value at the International. Their procedural rules do not accommodate needs of environmental victims. The mlernatior courts function within the nascent frameworks of international law and often lack compulsory junsilictiorj and enforcement mechanisms. In response to these weaknesses, there is a public demand for the solution of environmental crises and “recent case-law indicates a growing willingness of States and other actors to have recourse to international mechanisms to resolve disputes relating to natural resources and the environment. Although many proposals have been presented existing bodies, none of this is sufficient on its own. An international environmental court  necessary. The academic community and the framevs of the court should study carefully uk examples of current international.

Conclusion

The Palestinian leadership “maintained” that the synagogues were “symbols of Israeli occupation.” Kofi Annan, the Secretary-General of the United Nations at the time, said the Palestinian Authority had a “moral responsibility to protect the synagogues as places with religious significance. Some believe that settlements need not necessarily be dismantled and evacuated, even if Israel withdraws from the territory where they stand, as they can remain under Palestinian rule. These ideas have been expressed both by left-wing Israelis, and by Palestinians who advocate the two-state solution, and by extreme Israeli right-wingers and settlers’ who object to any dismantling and claim links to the land than are stronger than the political boundaries of the state of Israel. The Israeli government has oftern threatened to dismantle so-called outposts. Some have actually been dismantled, occasionally with use of force; this led to settler violence.