Issues Home About Contact Us Issue 3 - July 2012 عربى
Editorial

The Wall between Norms and Accountability

While the Middle East/North Africa is locked in intense struggles between authoritarian rule and people’s movements for democracy, many intrigues and uncertainties remain. Within this upheaval, one persistent feature of struggle has been overshadowed, but not forgotten. The colonization of Palestine forms a cardinal point in the landscape of the region, as naturally features in coverage of Land Times.

This third issue of HLRN’s quarterly publication coincides with notable anniversaries that focus the alien exploitation of indigenous people’s land and natural resources into a legal frame. That view squarely reveals the contradictions between the norms and the practice, between integrity and the actual behavior of states and the international community.

This week, we complete the eighth year following the International Court of Justice Advisory Opinion on the “Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory.” The Court established on 9 July 2004 “the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council.” While the Court was “not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” and, instead, concluded that its “construction, coupled with the establishment of the Israeli settlements mentioned above, is tending to alter the demographic composition of the Occupied Palestinian Territory.” “The construction of such a wall,” the Court advised, “accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.”

The Court further advised that “the United Nations, and especially the General Assembly [GA] and the Security Council [SC], should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion” (para. 160). Subsequently, the GA adopted the legal parameters for reparation (Arabic) of victims of such gross violations and grave breaches.

The consequences of the continuing breaches have been well documented, not least through the measures called for by the GA to establish a Register of Damage. However, no affective measure has been taken by the international community, bearing common obligations “to respect and ensure respect” the relevant humanitarian and human rights norms. The Wall, which Israelis label Geder Hafradah (apartheid wall), stands as a symbol of the impunity that perpetuates it.

Walls also stand in the west of our region as a reminder of conflict and demographic manipulation. Visible from outer space, the Moroccan military wall system across Western Sahara also has resisted the same human rights and humanitarian norms.

It was ten years ago, in 2002, that the UN clarified in a letter (Arabic) to the SC the legal position regarding the exploitation of natural resources in the Moroccan-controlled zones of Western Sahara. The legal advisor reminded that “the exploitation and plundering of the marine and other natural resources of colonial and Non-Self-Governing Territories by foreign economic interests, in violation of the relevant resolutions of the United Nations, is a threat to the integrity and prosperity of those Territories,” and that “any administering Power that deprives the colonial peoples of Non-Self-Governing Territories of the exercise of their legitimate rights over their

natural resources...violates the solemn obligations it has assumed under the Charter of the United Nations” (para. 11).

In that authoritative 2002 letter, the UN upheld the well-established principle of “permanent sovereignty over natural resources” as the right of peoples and nations to use and dispose of the natural resources in their territories in the interest of their national development and well-being. States reaffirmed that right in the 1966 International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, as well as in subsequent General Assembly resolutions.

The core principle of “permanent sovereignty over natural resources,” as a corollary to the principle of territorial sovereignty or the right of self-determination, is indisputably part of customary international law. The scope and implementation of that principle is to be determined by the peoples of the territory.

Sovereignty’s link to land is essential and organic. The further recognition of the effects of conflict, occupation and war on people’s human rights on their land is found in the development of norms such as the FAO’s new Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. Like the GA reparations resolution following the ICJ’s Wall opinion, the FAO’s deciding body also reaffirmed victims’ same rights to remedy with respect to their land and natural resources.

This date marks the twentieth year of operation for the International Criminal Tribunal for the Former Yugoslavia has tried and convicted at least 15 politicians and military commanders charged with forcing people from their lands and homes (one acquitted). Among them is Momčilo Krajišnik, the highest ranking Serbian politician to be tried for crimes in former Yugoslavia.

This month, we also commemorate the first decade of the Rome Statute’s entry into force and the establishment of the International Court of Justice (ICC). The ICC has issued a total of one conviction to date. However, other alleged perpetrators are under indictment for related crimes, including at least one defendant from the Lord’s Resistance Army (Uganda), six for violent post-election displacements in Kenya and four Sudanese wanted for comparable crimes.

While such trials may contribute to the transitional justice processes in those affected countries, the prosecution of war crimes and crimes against humanity has remained selective. The question persists as to whether international criminal justice can achieve the intended deterrence of such violations. 

This commemorative issue of Land Times covers the landmarks of normative development on the human rights dimensions of land. So, too, does it reflect the same impunity that is so detrimental to the land and its people.


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