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Open Letter: The Marginalization of Third State Responsibility in IHL is a Threat to the Rule of Law-Based System of International Relations
19، Dec 2019

Open Letter

By Shawan Jabarin

General Director, Al-Haq - Palestine

It is with great concern that I read reports from the of the 33rd International Conference of the Red Cross and Red Crescent.  In particular, it is the removal of the need for States to not only respect, but also to ‘ensure respect’, for International Humanitarian Law (IHL) in the adopted resolutions by focusing on the development of domestic IHL compliance mechanisms, that has moved me to write this article.  Although domestic mechanisms provide the foundations for compliance with IHL, it is the ability of Third States to provide an objective perspective and take the necessary action outside of the fog of war that gives the rule of law-based system its credibility and legitimacy in conflict situations.  By marginalizing this essential component of Third State responsibility in IHL, the conference delegates have sent a dangerous message to those of us who have placed our faith in the rule of law-based system of international relations.  

The focus on the national obligations of States during their engagement in armed conflict marginalizes the broader developments in the international rule of law-based system stressing the equality of States and the peaceful resolution of disputes.  Without the role of Third States to ensure compliance with IHL, States will be less concerned with respecting IHL so long as they are confident in ultimate victory, which would likely reduce the interest in compliance, particularly in the case of asymmetrical armed conflicts.  Such an approach also marginalizes the importance of Third States in ensuring the prohibitions on the acquisition of territory and the pillage of occupied territory, which help to reduce the incentives to conflict, are respected.  

In other words, this marginalization opens the door for a revival of classical era colonialism, which for the most part, has been relegated to the annals of history.  Unfortunately, Palestine remains one of the exceptions to the end of colonialism as a form of international practice.  This is why I believe so strongly in the role of Third States in ensuring compliance with IHL as the only peaceful path to the realization of the right to self-determination for the Palestinian people.  Left to its own domestic mechanisms and their national interpretations of IHL; the Israeli occupying power has been able to ignore international consensus while continuing to exploit the natural resources of the occupied Palestinian territory to subsidize its own economy and expand its settlement enterprise, at the expense of the Palestinian people and their right to self-determination.  

Through its contemporary refinement of colonial methods, including colonial charter companies and settler colonialism, Israel has been able to exploit the international market by involving multinational corporations in its colonial project while incentivizing foreign direct investment into occupied territory for its benefit at the expense of Palestinian economic development. Israel has also been able to exploit the Palestinian population to secure a captive market of consumption, while using that same population as laboratory for the research and development of weapons and surveillance technology.  Technology, which is then marketed and sold around the world, including to repressive regimes, as Israeli innovation.  

Indeed, Israel’s innovation in the means and methods of colonization may well be considered a mastering of Wakefield’s Art of Colonization, if colonialism was still an acceptable competitive behavior in international relations.  However, developments in international law, including IHL and the law of occupation therein, as well as numerous resolutions by the United Nations General Assembly Resolutions condemning the practice, should undermine Israel’s marketing strategy in a rule of law-based system.  Unfortunately for the Palestinian people, Israel has been able to exploit the gaps within international law to conceal its ambitions. Only through the action of Third States can these gaps be closed. As it has grown more brazen in recent years, Israel’s ambitions have become more and more clear to the international community; yet a continued lack of willingness to ensure compliance with IHL has left the protected persons living under occupation without the necessary protection from the international community. 

An incentivized occupation is a colonial occupation, and it is only through the action of the international community of states can the economic incentive structure perpetuating Israel’s colonial expansion be challenged and peacefully brought to an end.  Palestine, however, is not alone in this struggle against colonialism and its reliance on the action of the international community.  The year, 2020 will mark the final year of the Third International Decade for the Eradication of Colonialism. An initiative formally opposed by only three States, including Israel, that seems destined for renewal.   Despite different histories and circumstances, the Palestinian people share the common goal of realizing the right to self-determination enshrined in the UN Charter and the core human rights conventions hindered by contemporary colonialism.  

The injustices facing the Palestinian people are a microcosm of global injustices, and global injustices require collective action.  It is the States that have been entrusted with their respective social contracts bare the primary responsibility for taking global action regarding humanity’s collective problems, whether they be contemporary colonialism, global inequality, poverty or climate change.  The marginalization of Third State responsibility undermines the rule of law-based system and risks putting us on a path towards a revival of a power-based imperial system and increased global instability.  

Israel’s exploitation of the lack of willingness by the Third States to hold it accountable has not only allowed it to act with impunity but emboldened to go further.  The impunity that Israel continues to enjoy, which has been reinforced rather than challenged through the recent International Conference, sends a message to states with imperial ambitions that ‘might makes right’; and history has shown us that imperial appetites are rarely ever satisfied.   Champions of the rule of law-based system, especially the remaining member states of the European Union, must counter this message not only for the question of Palestine, but for the international system as whole.  

Leaving Palestine as an exception to the universality of the right to self-determination threatens to swallow up the rule.  It is responsibility of the international community, especially the High Contracting Parties to the Geneva Conventions, to make the cost of Israel’s imperial ambitions and colonial practices outweigh the benefits it continues to enjoy.  Ensuring compliance with IHL is one of the strongest tools available to them in this regard, and it should be strengthened rather than marginalized.  Now, more than ever, I believe that history will judge how the international community deals with question of Palestine in the near future as either the point where the rule of law-based system was preserved or where it began to unravel.  Although I maintain hope that the rule of law-based system will indeed prevail, the message from the 2019 International Conference confirms that its preservation cannot be taken for granted.  Remember, the melting of even the largest glacier begins with a single drop.


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