Former UN Special Rapporteur for Palestine: ‘International law is not an a la carte menu’  

Boğaziçi University’s Faculty of Law hosted its first International Law Conference (BILC) and brought together a large number of academics and experts including Michael Lynk, the United Nation’s former Special Rapporteur for Palestine from around the world to critically examine the current international legal order, particularly in the aftermath of Israel’s invasion of Gaza and the massacre of dozens of thousand of civilians.

During the conference, Michael Lynk gave a presentation on “Israeli Settlements under the Rome Statute of the ICC” in the session titled “Occupation, Racism and Resistance” moderated by Hilal Elver, University of California. Professor, Former UN Special Rapporteur on the Right to Food along with the speakers Muthucumaraswamy Sornarajah who is the Emeritus Professor at National University of Singapore and Mohsen al-Attar, the Associate Dean and Professor at Xi’an Jiaotong-Liverpool University. Lnyk, saying that he believes in justice points out that those of us who care for Palestine can become cynical with respect to the aspirations of international law.

Linyk, hoping the absolute permissibility of any and all of us to be skeptical about international law’s pretensions underlined that it’s absolutely wrong to be cynical about international law’s possibilities and completed his presentation with a quotation from Christoph Heusgen, the former German Ambassador to the UN which is “international law is not an a la carte menu” meaning it must apply to all.

We bring the notes from the former UN Special Rapporteur for Palestine…

There is still life for international law to shape the politics

“We must not be starry-eyed about, in any country, in any system, with respect to what law can wind up achieving. I think only error is achieved through hard work, through lobbying of legislatures, through social movements, through the fervent intellectual ideas coming up and challenging what is the dominant area of thought. And that in any domestic system, and particularly including in the international system, it always is an area of great tension between law in the service of power and law in the service of justice.”

“And those of us who believe in justice, who believe in international humanitarian and human rights and criminal law, will know it always will be a struggle to widen that space, to be able to allow justice with as much oxygen as it can get, to be able to breathe and push back against the forces of power. And this has actually been a good couple of weeks, particularly with the release of the International Court of Justice’s advisory opinion two weeks ago, and obviously as we look back during the past seven months, with the release of the provisional decision by the International Court of Justice back in January, its provisional measures in March and May, and of course the announcement by the International Criminal Court’s prosecutor with respect to the application for arrest warrants as well. This ought to give us hope that there is life for international law to be able to shape the future politics.

The entire Israeli occupation is now determined by the International Court of Justice

“International law by itself would not bring the liberation of Palestine. But international law combined with a separate international resolve is what we wind up needing. And people respond, and this is, I think, what’s got to be optimistic, a brief warning when I wake up, particularly during the years that I serve as Special Rapporteur for Human Rights in the Occupied Palestinian Territory, is that international law has that possibility of being able to be pushed forward, that people respond to a framing that something is unjust, and respond even more fervently to a framing that something is illegal, as the entire Israeli occupation has now been determined by the International Court of Justice.”

The Israeli settlements tool for demographic growth in East Jerusalem and the West Bank

“I’m going to be looking this at one aspect of that, which is the Israeli settlements, and how international law has interplayed with this over the last 50 years, and what indeed can be done. So obviously, as we know, the Israeli settlements, which were begun in the first weeks after the June War in 1967, usually disguised as an initiative of military army bases, is the primary Israeli tool for demographic growth, territorial control, and a claim for sovereignty in East Jerusalem and the West Bank. It is, as many scholars have said over the years, to be the single most important and visible feature of Israeli apartheid, and that’s been confirmed with, I think, a close reading of the decision by the International Court of Justice two weeks ago.”

“There are now over 300 Jewish-only settlements in the West Bank and East Jerusalem. The 2023 population, I want you to compare it to the figures I have from 2000.”

“In 2023, in the West Bank alone, there are 517,000 Israeli settlers, and you can see the growth from under 200,000 in the year 2020. In East Jerusalem, where Israel had focused its settlement activities for the first 15 to 20 years of its occupation, today there are 235,000 Israeli settlers, and there were 172,000 in the year 2000. And you look at the Golan Heights, this is the population that almost doubled, from 16,000 in the year 2000 to 29,000 today.”

“And one of the startling figures, what we call the majority decision of the International Criminal Court, was that between November 2022 and October 2023, there were 24,000 settlements, 2,000 units that are currently in various stages of the planning system within Israel. And one of the big accomplishments by the current Minister of Finance, Bezalel Smotrich, who is also Minister of Settlements within the Defense Ministry, is to eliminate three of four stages of planning and approval, such that there will be only one level of approval in order for an application for settlement units to be able to be approved. 24,000 settlement units, the policy would yield at least 200,000 new settlers.”

“If you read through the International Court of Justice decision, you will see how heavily, in fact almost exclusively, the court has relied on documentation provided by the United Nations Independent Commission on Inquiry, on the Non-Legitimacy Clause 9, or on the regular reports given. And much of this regional slide given above is from reports coming from the International Court of Justice, certainly from the High Commission on Human Rights. But if you look through the decision I produced two and a half weeks ago, you’ll see the heavy reliance that the United Nations has relied upon with respect to human documentation, talking about a number of issues, heavily influenced, including not only on the settlements, but eventually on the issue of racial discrimination and segregation and apartheid.”

“For example, it talked about the transfer of civilian population, and it noted that there was a status of Israel’s policy of providing incentives for the relocation of Israeli individuals and businesses into the West Bank, as well as looking at the industrial and agricultural development of settlers. With respect to confiscation and repossession of land, it is pointed out the extraordinary, I suspect, experience of more and more confiscation of land in the highlands of the West Bank, and more recently in Jordan Valley. And in fact, there is a very recent report that came out in the last month from Peace Now, which offers some of the most qualitative and reliable sources of information and statistics.”

Illegal settlements exploit natural resources, including water and minerals

“Going on, some of the other elements have to do with the exploitation of natural resources, including water, including minerals, and as we know, which is embedded in international law with respect to the control over one’s resources and the ability of the countries, as part of the right of self-determination, to be able to exploit our natural resources, that all of this is done on the wayside, with respect to control of Israel’s development, that Israel’s water carrier is, selling West Bank water that it has taken from a northern mountain aquifers and selling it back in fleeting prices, going back to the fact of the Palestinians, and that this was one of the important points that was relied upon by the court to be able to show the essence of racial segregation and apartheid, that there are, two different systems of laws operating issues on the West Bank. One, fulsome democratic, liberal for Israeli settlers, and the other, restrictive, minimal, violating international law, based on military law, three-plus percent of Palestinians living there.”

“At the other point, one of the reasons it comes to this issue has to do with the rising violence against Palestinians over the same period of time in the occupied West Bank. The killing of Palestinians saw by far most of it coming from the Israeli defense forces. It’s now only around 550 deaths over the last 10 months. And this is the highest number of deaths of Palestinians in the West Bank and the East Jerusalem since the 7,000 individuals over 25 years ago. So all of this, when the International Court concluded that the settlement policy is illegal.”

Transfer of population to occupied areas is war crime

“We know from the 1949 Convention, this was asserted. The occupying power in the court transferred parts of almost a million occupations in the territory of the Netherlands. This was put in there because of the incentive that arose during wars prior to the end of the Second World War to allow countries to be able to expand their territories and its territorial belonging which was amassed by other countries and then populated under civilian occupation in order to make the return of land possible.”

“And there is a rationale by Jean Pictet, in 1968, that union conventions were designed to prevent a crisis of international and systematical war by certain powers, which transferred portions of their own population to occupied territories for political and racial reasons or, in other words, they came and colonized these territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”

“It’s a violation, a plagued violation. I’ll say that even in the international border crisis decisions a few weeks ago was the question of the war crimes.”

“The last time that the Security Council passed a resolution critical to the general on any matter was in December of 2016, in the last three weeks of the Obama administration, when they passed a resolution 2334, and it became the form of action that the Israeli government’s attempt to reflect their violation of international law. It reiterates the demand in over 40 years that Israel de-engage with its own settlement activity.”

“It calls upon all states, as it did in 1980, to distinguish the relevant means in between territories of the state of Israel and their particular block types. Just let me give you a couple of statistics with respect to this. When the UN Resolution 465 was passed in March of 1980, and I’m using only West Bank settlement figures, they’re easier to view than any of that.”

The number of Israeli settlers jumped from 12,500 in 1980 to 370,000 in 2023 

“Does anybody know, as a rough guess, how many settlers were in the West Bank in 1980?

There were 12,500 settlers in the West Bank. By 1993, when the Oslo Accords were signed, there were 116,000 settlers in the West Bank. By about the year 2000, when the Camp David talks were conducted and then failed, there were 198,000 settlers in the West Bank. By 2014, when the last of the serious peace negotiations were conducted under John Kerry and then failed, there were 370,000 Israeli settlers in the West Bank.”

“In 2003, as I said, there were no settlers in the West Bank. Back in 1936, David Ben-Gurion said, and remember, 1936 was at the height of the integration of European Jews fleeing the specter of European fascism with most of the doors to the West, Russia’s door, and then North American foes. And David Ben-Gurion said, what error could not do this in the past? And we realize that 60,000 European Jewish immigrants a year who leave in 2009 means no error saved.”

“Can we not see today, almost 90 years later, that having 3 quarters of a million Israeli settlers in each Jerusalem in the West Bank, with a growth of somewhere between 25,000 and 35,000 settlers in a year, net population, means no domestic and self-determination with this group. So let’s look at this last piece here. I’m going to read this just a few pages before we send everything else to the team.”

“There are three questions at the end of it. They want the Security Council one at the beginning of the evening. And I request that the Secretary General of the United Nations report to the Security Council every three months on the implementation of the provisions of this resolution, most importantly of which is a demand that the doors immediately cease and completely cease all settlement activity. And that has been done every three months from the proper beginning.”

“There have been Security Council Generals, General Secretary, Secretary General, has delivered to the Security Council regarding Israel’s compliance with the 2354 regarding settlement activities. The March 2024 report, which is the 29th report, is the most recent one that I’ve applied to each of them online. It says the resolution calls on Israel to immediately and completely cease all settlement activity in the occupied lands, including Israel. And it would respect the new obligations. Nevertheless, settlement activities are continued and intensified. The other long warning I thought I wanted to give for each of these security reports, no such threats are created during the reported period as settlement activities continue.”

“So we have, if you like, this passive, and this specific, almost disembodied voice coming from the UN Secretary General, or which, of course, is in a digital pattern, tailored to the security council, this remains to obey resolution 2354.”

“And I won’t take you through it, but in the 1921 report, especially going forward to the UN Security Council, I applied this variant test that the periphery committee for the ICC had developed and found that Israel had violated all three aspects. And now, the definition of the authority willingness of those in official positions of power is now being enwired, who will say that the trade settlements are a form of war crime.”

“I think is a very roosting argument, such transfer is not a form of war crime that may engage individual criminal responsibility of those involved. And then, again, we’re being introduced several times to the International Court of Justice, where it’s said, and after going through an extensive review of the ICC, which is a settlement inquiry, with respect to digital settlement policy, it affirms, and in the light of the law, the ICC reaffirms that the trade settlements in the West Bank, in Jerusalem, and in the region associated with them have an established pattern of maintaining violation of international law.”

Accountability is a missing component with respect to international law

“On the question of accountability, accountability is a missing component with respect to international law. International law, without international resolve, generally emerges from below to be able to enforce the application of existing international law. And I’m very happy with respect to these.”

“These are three of the main components with respect to international law and accountability. First of all, with respect to international and international law, common argument, common law, all four of them says that the highest common comparison is with respect to security.”

“The International Committee of the Red Cross, the guardian of the Geneva Convention, has said, to ensure respect is not simply words on paper, this is a solemn, legal, binding, commitment and obligation. The states have to require the approval of international law means any serious breach of international law, and those states require international law to assist in the breach of international law.

And finally, I want you to keep Article 25 of the Charter of the United Nations in mind that the members of the United Nations agree to accept and to carry out the decisions of the United Nations.”