The following is an excerpt of a speech, to be presented by Dr. de Currea Lugo at the "United Nations International Meeting on the Implications of the Construction of the Wall in the Occupied Palestinian Territory, including around East Jerusalem", Geneva, April 2004.
I think that for everyone it is clear that the Wall is illegal according to International Humanitarian Law as well as Human Rights Law. I would prefer not to discuss the same issues again. What I would like to ask are three important questions, at least important for the Palestinian People. Since I have been asked to discuss the role of civil society, the following points need to be raised in regards to human rights, international NGOs and the international community, three components that any civil society depends on.
1. ENFORCEMENT OF HUMAN RIGHTS
The first question is regarding both the enforcement and the applicability of international law in so -called "negotiations" and "peace processes". Why in almost all the proposals and agreements, are human rights and international law excluded?
The Palestinian Anti-Apartheid Wall Campaign believes in Human Rights as an international language, which means the belief that the United Nations is based on the acceptance of this universal language that is the basis to justify the use of force, sanctions and even war: that discourse is called human rights. We have placed our confidence in human rights and put substantial efforts into the legal analysis of the Wall. The Campaign strategy in Europe, Latin America, and worldwide has been to speak of the illegality of the Wall from the perspective of international law and human rights, trusting that this language is in fact universal.
The continuous violations of human rights is based on the continuous Israeli violations of international law and UN resolutions, as well as on the building of so-called peace processes that don't even take into consideration human rights. This argument was one of the strongest critiques against the Oslo agreements. It is also the strongest argument of the NGO Human Rights Watch against the Road Map to Peace. The same analysis can apply to the Geneva Accord. For some Palestinians, for what seems to be the majority of Palestinians, it is preferable to talk about the Geneva Convention rather than the Geneva Accord. This means that it is better to talk about the guarantee of right to life and right to freedom.
Let me say at this point in time that for me, personally, the definition of the so-called "civil society" is not clear. What I think is that it includes the Palestinian farmers and their landless families, Palestinian workers now unemployed, teachers without access to schools, and doctors and patients without access to hospitals. It is civil society, which began demanding their rights even before the Wall began, and they continue to suffer the terrible consequences of the Wall more than anyone else.
For the average person, the debate is not just about one state or two states. An integral part of the debate for Palestinians in Palestine and Palestinians in Israel is what kind of State. Looking at the Wall map, the two-state solution becomes impossible, as it seems that no real pressure on Israel to stop the Wall will take place. With the Wall, Palestine does not have a State. Without territorial contiguity, without ties with third countries, without land or water, living in ghettos, without any possibility to develop its own economy, it is impossible to talk about any Palestinian State. This is just as true, if not more so, with the current (and illegal) tactic by Israel to legitimize the Wall by discussing to shift certain parts of it "close to the Green Line". Such change most likely will not occur, and if they do, will be insignificant in the big picture, since they only slightly modify the size of the Palestinian ghetto. In the end, discussions about "closer to the Green Line" are yet additional evidence that Israel seeks to eradicate the Green Line and make the Wall a de facto border. No Wall, whatever its path, is acceptable.
But also, the one-state solution will fail if such a State will not guarantee the same rights to everyone, as is happening now in Israel where non-Jews do not enjoy the same rights. In the long term, a one-state solution will have to answer questions related to real democracy and full applicability of human rights. The basis and nature of Israel is, unfortunately, the central problem when discussing the prospects of a one-state solution.
After the fatal blow to the Geneva Convention in the Afghanistan war and the denial of the UN by the USA during the Iraq war, what is at stake here, in addition to the legality of the Wall, is the international legal system itself. If the Israeli message and actions of eradicating a Palestinian state continues to be accepted internationally, it is going to be very difficult to speak again in terms of human rights as universal principles recognized by decent societies and which would help bring justice to Palestine.
2. THE ROLE OF INTERNATIONAL NGOs
The second question is regarding the role of the Non-Governmental Organizations (NGO) within the conflict and especially the humanitarian aid provided in relation with the impact of the Wall on the communities. Why do the internationals NGOs provide food and other non-food aid to the communities when the biggest problem is human rights violations?
This surfaces the question as to what should be the role of the international NGOs in Palestine. We confront a tragedy and injustice, which is not the so-called classic one, where a lack of material goods calls for assistance in the strict sense of the word. Persons and institutions with experience in other conflicts recognize that the solutions needed for Palestine go beyond. The Bertini Report, the most famous UN report about the humanitarian situation in Palestine said: "The crisis is not a 'traditional' humanitarian crisis… (It) is inextricably linked to the ongoing conflict and particularly to the measures imposed by Israel… if the overall environment improves sufficiently to enable a free flow of people, goods and services, the humanitarian crisis will rapidly dissipate".
For instance, the vulnerability in Palestine is based on the access to the distribution systems of food (markets) and the employment possibilities which guarantee the capacity of Palestinians to buy food. The general problem is of access to water and food. What we find is the international NGOs replacing the Occupying Power in its duties and then imposing on themselves a form of silence in relation to their roles. In fact, their primary preoccupation must not be the distribution of food but advocacy against the everyday and systematic violations of human rights carried out by the Israeli government. The humanitarian agenda on behalf of the Palestinian People goes beyond food distribution and must also include those tortured in the Israeli prisons and the killings of civilians.
Palestinians do not need the so-called "classical humanitarian aid", but it is easier to convert the Palestinian struggle into a food-aid solution. It is easier to distribute food than demand from Israel to respect the farmer's access to the land. It is easier to distribute safe water than discuss on the political level the Israeli military and government control of the water resources in Palestine and in the Middle East. This clearly wrong step, of replacing human rights for a minimum of humanitarian aid, is not a contribution to the Palestinian People.
This wrong step being taken is possible due to the conditions imposed by Israel on the NGO, the power structure and interests within the NGO itself, and the mistaken notion of "neutrality". There is an erroneous and yet persisting idea that the neutrality of NGOs is based on a supposed norm of International Humanitarian Law that in fact does not exist. Also, it is possible to talk about neutrality between two combatants, but not between a combatant and his victim. Like the ICRC itself said, silence has a limit, and even it has condemned the humanitarian law violations in Palestine.
What we find is a real humanitarian crisis, which is fueled by the current existing dichotomy that holds that in order to access international funds to support NGO projects, silence about what is really taking place must ensue; or, lose the possibility to access money and exist. The NGOs themselves do not have answers and are not sufficiently confronting this dichotomy that is imposed by several headquarters upon their field offices.
3. THE SUPPORT OF THE INTERNATIONAL COMMUNITY
The third question is regarding the role of the so-called international community in the legal process concerning the Wall. Why did the international community take a step back and refuse to take part in the public audience in the International Court of Justice last February?
The Palestinian Anti-Apartheid Wall Campaign placed hope in the power of the law when the Campaign received news of the United Nations General Assembly Resolution in October 2003. The Resolution demanded from Israel to stop the construction of the Wall and demolish the existing sections within one month’s time. There were 144 votes in favor, 12 abstentions and only four countries voted against the October Resolution: Israel, the United States, Micronesia and the Marshall Islands. Just weeks before it, the United States, using its veto power, blocked a similar proposal in the Security Council.
The report of the UN Secretary General presented just one month later in November, showed, once again, Israeli violations of international agreements, in this case through continued construction of the Wall. As a result of Israel's refusal to accept the terms of the General Assembly Resolution, the General Assembly took the next step and requested an Advisory Opinion from the International Court of Justice. Then, Israel claimed that the Court does not have jurisdiction to study the legality of the Wall, which they call a "political" rather than legal question. The United States, Israel's unconditional ally, has taken a similar position.
All the contracting parties of the Geneva Convention, including Israel, must ensure the application of International Humanitarian Law. Since the Wall is illegal, all states that have signed the Geneva Convention have the legal responsibility to take part and stop the Wall's construction and its impact on the civilian population.
But to our surprise, the European Union has joined the argument that the debate is political and not a legal one, supporting the Israeli voice that affirms that the Court is not legally competent to examine the Wall. The fact that it is political is not in question, but the political nature of occupation does not place it outside the law.
We cannot say that war crimes are not legal matters but rather political, since wars are political issues. Denying war crimes and crimes against humanity that accompany the construction of the Wall is a position that the Government of Israel is expected to take. But if the rest of the so-called international community – including the European Union – takes part in this opinion, then it denies the expropriation of land and other serious violations to the rights to freedom of movement, property, health, education and work as have been clearly exposed. Then the universality of human rights then disappears.
CONCLUSION
First, any kind of agreement or accord, even if signed by the Palestinian Authority, even if signed by humanitarian NGOs, even if supported by the international community or the United Nations itself, can not erase or disregard neither international humanitarian law nor international human rights law. Many take the position, which states that without human rights, without a minimum of possibilities to build justice, it is almost impossible to talk about civil society. If human rights are one of the requirements to be talked about in the case of Palestine, we must then add the support of the international community as a part of this discussion, and to offer another and better role to international NGOs. After this minimum is achieved, then maybe it will be possible to talk about a strong Palestinian civil society.
Second: The international NGO plays an important role in Palestine, but this role has to combine the demand of the duties of the Occupying Power and the applicability of international law. The NGO, according to their own humanitarian principles, should not replace the Occupying power in their duties but should support the victim, the Occupied. The international community cannot be limited to only providing Palestinians with painkillers and this only when the Israeli government permits it.
Third: The Palestinian people, its so-called Palestinian civil society, exist, but its survival depends also on genuine support and action by the international community based on international rules and institutions, such as the International Court of Justice. The wrong message that can be sent by the international community is, "Palestinians, rights do not exist in your case, only politics." In this case, we must be reminded of the sentence, which states that war is the continuation of politics, but by other means.
Thanks again and I hope these small comments contribute to the discussion about the Wall.
Victor de Currea-Lugo is the Anti-Apartheid Wall Campaign's Legal Advisor and Coordinator of Spanish and Latin American Outreach. He holds a Medical degree as well as a PhD in human rights. He is guest professor of Human Rights in "Universidad Jaume I" and "Instituto Ortega y Gasset", in Spain. He has participated with several NGOs in Colombia, Spain, Sweden and Palestine, as well as the International Committee of the Red Cross, ICRC. In the Anti-Apartheid Wall Campaign, Dr. de Currea-Lugo has led successful advocacy efforts in Spain, as well as in Holland during the sessions of the International Court of Justice. He is the author of, among others, "Derecho International Humanitario y sector salud" (International Humanitarian Law and Health Sector, ICRC, 1999). He also regularly publishes articles about Human Rights and International Law.