Alice Panepinto

1 December 2017

In his recent message on the International Day of Solidarity with the Palestinian People, the United Nations Secretary-General António Guterres described the question of Palestine as one of the longest unresolved issues on the UN agenda. Seventy years since General Assembly Resolution 181 (partition), a just, lasting and comprehensive peace between Israelis and Palestinians, and the emergence of a sovereign and independent State of Palestine alongside the State of Israel as recognised in that resolution, are yet to be achieved. World leaders have tried – and failed – to achieve a just resolution for the most symbolic conflict in the Middle East. What should they be focusing on now and in the new year?

Among the myriad complexities that require sustained efforts, the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, is considered a major obstacle to the achievement of the two-State solution and peace. The landmark Security Council Resolution 2334 (2016) also reaffirmed that settlements have no legal validity and constitutes a flagrant violation under international law. This analysis is consistent with the 2016 Report on Preliminary Examination Activities of the Office of the Prosecutor of the ICC. In her list of alleged crimes, the Prosecutor included settlement activities, and the related policies, laws and physical measures to maintain and expand settlements. These include the Israeli appropriation of Palestinian land, the demolition of Palestinian homes causing displacement, and the Israeli plans to relocate Palestinian Bedouin communities residing in the area east of Jerusalem to other parts of the West Bank. Despite UN and ICC positions, settlement activity is booming. A recent UNCTAD report presented a bleak picture of continuing loss of land and natural resources to settlements, denying the right to development for Palestinians and exacerbating the overall de-development driven by the occupation – in addition to impeding peace.

UN-OCHA has estimated that all 4.8 million Palestinians are affected by humanitarian protection risks, and one in two Palestinians will need some form of humanitarian assistance in 2017. Within the West Bank, the situation is particularly dire in the so-called ‘Area C’, which constitutes over 60% of the West Bank and has been under the sole administrative and security control of Israel since the Oslo Accords (Oslo II) – while Areas A and B remain nominally under the administration of the Palestinian Authority (PA). While occupation does not transfer sovereignty, in Area C in particular, Israel exercises de facto control over all aspects of life. The PA is virtually barred from providing basic services (including schools and medical care) in Area C, and local communities rely heavily on international aid to survive and supplement dwindling incomes, largely driven by the restrictions imposed by the occupation. The fragmented response to the humanitarian crisis, however, has exacerbated the differentiation between Area C and the rest of the West Bank, including East Jerusalem and Gaza.

The distinction between Area C and Areas A and B is particularly visible in the international provision of assistance. The humanitarian agenda has come to dominate bilateral and multilateral aid programmes in Area C, often directly arranged with the beneficiary communities without coordinating with the PA as a matter of routine, while development and state-building programmes that are coordinated with the PA prevail in Areas A and B. This is problematic for two reasons. Firstly, this is at odds with the conclusions drawn in the 2004 ICJ Advisory Opinion on the wall, which found that all of the Palestinian territories in their entirety are considered occupied for the purposes of international law, without distinctions between Gaza, East Jerusalem and the various parts of the West Bank. Based on the Advisory Opinion, international humanitarian law and international human rights law apply in principle to all Palestinians wherever they are in occupied Palestine. As such, all international assistance activities in the Palestinian territories can be construed as possessing aims and characteristics informed by both humanitarian and development principles.

As a corollary of the previous point, the distinction creates a false dichotomy in terms of territorial sovereignty that contradicts the cardinal principle of the law of occupation, namely that occupation does not confer sovereignty. Yet when Area C is treated as an exception (humanitarian) while Areas A and B are regarded as ‘normal’ parts of Palestine that can be supported through ordinary development measures, there is an operative assumption that Areas A and B fall squarely within the sovereign remit of the PA, whereas Area C does not. The adoption of the humanitarian agenda as opposed to development in Area C results in ‘emptying’ Area C of Palestinian sovereignty, which further exposes these parts to Israeli annexation plans promoted by current government ministers and other Israeli politicians. Moreover, Palestinian communities in Area C, many of whom are Bedouin, are among the most vulnerable in the West Bank and are at risk of forcible transfer to facilitate settlement expansion. In international law, this would amount to a grave breach of the Fourth Geneva Convention and a possible war crime under the Rome Statute of the ICC.

This carving up of the West Bank and the establishment of a new A-B-C political geography is one of the crudest results of the Oslo process. Although the terms of that agreement were set out to be temporary, with a transfer of full control to the PA intended in 1999, this has not happened; instead, the dissection of the West Bank has come to dominate the way in which international institutions and the international community conceptualise Palestine – with Gaza increasingly perceived to be separate. Moreover, these differences contribute to the further fragmentation of the Palestinians as a people, with negative consequences for the treatment of the statebuilding effort and of Palestine as a whole. The differences also impair the right to self-determination of Palestinians as a people and their right to development – crucial for supporting a viable two-state solution as a condition for a just, lasting and comprehensive peace between Israelis and Palestinians.

As UN Secretary-General Guterres recalled in his recent message, the resolution of this conflict would create momentum for greater stability throughout the region. In a climate of increased austerity and proliferation of emergencies, international humanitarian and development donors will need to prioritise conflict resolution over resource-intensive (and potentially counter-productive) forms of conflict management. As Daniela Huber and Dimitris Bouris have argued, the international community, including the EU, have ‘ended up footing the bill of Palestinian state-building and Israel’s occupation without advancing the prospect of Palestinian statehood’, which has not brought about a just, lasting and comprehensive peace between Israelis and Palestinians. To break the stalemate at the international diplomatic level, they suggest that the EU should make the decision to recognise Palestine as a step towards addressing the power imbalance between the two parties, preventing the one-state reality, and moving closer to the goal of two states living side by side in peace and security.

Image details

Title photo caption: Visit of the project of the Gaza small scale desalination plant: June Kunugi, Special Representative of the UNICEF to Palestine, Maged Awni Abu-Ramadan, Mayor of Gaza, Johannes Hahn and Mofeed Al-Hasayneh (from left to right)

Title photo description: Johannes Hahn, Member of the EC in charge of European Neighbourhood Policy and Enlargement Negotiations, travelled to Israel and Palestine from 12 to 14 June 2016. He had the opportunity to meet with a series of local and national political personalities, be witness of the EU support in Palestine where amongst others he signed the agreement to support the second phase of the Gaza small scale desalination plant which is a project that will provide 150000 Palestinians with access to clean drinking water.

Title photo credit: EC Photo/Said Khatib

Map image credit: United Nations Office for the Coordination of Humanitarian Affairs occupied Palestinian territory (available from: https://reliefweb.int/sites/reliefweb.int/files/resources/Area%20C%20of%20The%20West%20Bank%20Key%20Humanitarian%20Concerns%20January%202013.pdf)

About the Author

Alice Panepinto

Alice Panepinto is a Lecturer within the School of Law, Queen’s University Belfast.