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Int’l law and the status of OPT?

A United Nations investigator, a former UN Human Rights Rapporteur is drafting a series of legal measures the international community could take to deter Israel from building the Jewish settlements in the occupied West Bank and any means to formally annex the Palestinian territory in the West Bank, the Gaza Strip and East Jerusalem. Michael Lynk, an independent UN researcher, said the European Union (EU) and some world powers should consider cutting economic, political and cultural ties with Israel in support of the Palestinian quest for statehood. Be it the settlements or walls; home demolitions or evictions; forced transfers; threats to the historic status quo of Jerusalem’s holy sites, or any annexation measures, all are unlawful, war crimes, and in no way be justified under any pretext of security claims, biblical edicts or so-called invective legislation by the occupying Power.
In Michael Lynk’s view who has to submit his report on the Palestinian situation In October this year to the Geneva-based UN Human Rights Council, “The international community actually holds a lot of cards with Israel, and it has to say to Israel: ‘Your membership or privileges through bilateral or multilateral agreements with respect to your economy, political and cultural relationships are all going to be called into question and reviewed unless you show genuine attempts to unwind and undo the occupation’.” Israel’s exploitation of natural resources in the Occupied Palestinian Territory for its own use is in direct violation of its legal responsibilities as an occupying power, said UN Special Rapporteur Michael Lynk in March this year.
Since 1967, the Israeli armed forces have had the effective authority (control) over the Palestinian Territory (the West Bank, including East Jerusalem, and the Gaza Strip). This effective control has been combined with agreements whereby some authority over the territory has been delegated to the Palestinian Authority, while some territories have been unlawfully annexed by Israeli law. However, as long as effective control is being exercised, neither delegation of some authority nor annexation changes the application of the law of occupation as a matter of international law. After decades of statements to the effect by the UN Security Council and the UN General Assembly, as well as other UN agencies, the International Court of Justice (ICJ), in its 2004 Advisory Opinion, reaffirmed that the Palestinian territory is under occupation. This is also the position of the European Union, the United States and the International Committee of the Red Cross (ICRC).
Most Palestinians see Gaza as part of the territories occupied by Israel. They also say the coastal enclave is under “siege,” with Israel controlling who and what goes in and out. The United Nations also calls Gaza occupied territory, most recently in a report commissioned by the U.N. Human Rights Council that concluded that both Israel and armed Palestinian factions in Gaza may have committed war crimes. The United Nations says it does not matter that Israeli soldiers are not based inside the strip; they have “effective control.” Israelis, however, argue that their withdrawal from Gaza 10 years ago means that the enclave is not occupied – unlike the West Bank.
Some of the legal experts belonging to the Israeli Jewish lobby are of the conviction that the implementation of a functional approach instead of the functional legal approach practised by the UN and EU. The functional approach can be described as a via media or the middle way approach. In contrast to those merely arguing that in light of the scope and degree of control still being exercised by it, Israel continues to be an occupying power in Gaza, those advocating in favour of the functional approach recognize that Israel no longer has overall effective control over the Gaza Strip. They however also state that given that effective control has, in their opinion, been maintained over some areas, the law of occupation should continue to be applied to those areas that still remain under Israeli control. This approach basically recognizes that occupation does not always end at one point in time but that control can be relinquished in a gradual manner. In view of these thinkers adopting a functional approach in such situations, would then be necessary in order to avoid a legal vacuum-but giving space to the functional approach seems to have jettisoned the very tenants of the law of occupation argued in the Geneva Conventions and the Hague Regulation of 1907. With nearly 6,000 housing units advanced, approved or tendered, recent weeks have seen the largest expansion of Israeli settlements in the West Bank in two years, the senior United Nations official coordinating the Middle East peace process official said as he briefed the Security Council on the flagging implementation of its resolution 2234 (2016).
And yet, the Israeli government is unethically, illegally and unilaterally tackling the issue of settlements via its domestic legislation- a practice that is not acceptable under any norms of international law, thereby also making a two-State solution at risk too. It goes without saying that the number of settlers has had been increased dramatically during the recent months, and the ongoing practice of making legislation by Knesset to legalize most of their outposts, is making this issue of the settlements more complex while the argument of making a choice between a settlement and the separation holds no more justification in the eye of international community.
Recently, Trump’s Mideast envoy Jason Greenblatt faced staunch criticism at the UNSC meeting while arguing ”conflict can’t be resolved using international law ”. Germany’s UN Ambassador Christoph Heusgen stressed that UNSC resolutions are binding under international law, saying, “For us, international law is not menu a la carte.” For us, international law is relevant; international law is not futile,” he said. “We believe in the force of international law; we do not believe in the force of the strongest.” Russia’s UN representative Vassily Nebenzia challenged Greenblatt’s assertions.
“… Security Council resolutions are international law – they merely need to be complied with,” Vassily Nebenzia said. “The matter lies not with a lack of international consensus; rather the matter has to do with the fact that there is utter disregard for this internationally-acknowledged consensus by the United States at present.” To conclude, by any canon of international law, the ongoing Israeli colonization of the Occupied Palestinian Territory (OPT) in the West Bank and the Gaza Strip including East Jerusalem, is absolutely illegal under international law.



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