Some 5 or 6 of the observers were to arrive within hours — Russia’s Ambassador Vitaly Churkin said that one Russian would be coming from the Golan Heights [Syrian-claimed territory occupied by Israel since June 1967].

Another 20 military observers were supposed to be in Damascus within 24 hours.

Kofi Annan, former UNSG who now represents both the current UNSG BAN Ki-Moon and the Arab League, is due to present a more detailed plan by 18 April for a more substantial UN “supervising” mission in Syria.

Russia and China, who vetoed a previous proposed UNSC resolution on Syria, said that they could go along with this one because it respected Syrian government sovereignty…

Russia’s representative, Vitaly Churkin, complained at length however about hearing other representatives on the Security Council misrepresent the terms of the resolution — the

Syria’s representative Jaafari said that the resolution was not balanced, but added that his government would live with it because of the need to reestablish order in the country. Jaafari bitterly blamed outsiders — he named Saudi Arabia as one — for interfering, due to a long-standing rivalry between “Pan-Arabism and Political Islam”. And Jaafari blamed money coming from “Salafist and Wahhabi” sources for the acts of terror that he said have been committed by gangs operating throughout the country…

Right.

That has come to mean throwing money at it.

Twice a year, major Donors who keep the PA afloat meet to discuss the financial situation — and the spring meeting was held in Brussels this year, on 21 March.

Serry told the UNSC today that, in that meeting, “the primary concern of all AHLC members was the dire financial situation of the Palestinian Authority”.

Barak Ravid reported in Haaretz, just ahead of the meeting, that the between-the-lines significance of the report presented by Israel was: the Palestinians are not ready to have a state. A very self-serving message indeed. He wrote that:

“Parts of the report are worded in a way that aims to make clear that the Palestinian economy is unable to support an independent state … ‘While the present fiscal crisis was caused by a shortfall in donor aid, there were also deviations in the execution of 2011′s budget’, the report said. ‘The public finance management system’s role in the current crisis may undermine its track record as a system that meets the requirements of a well-functioning state’. The report also indicated that the PA’s fiscal management contributed to the current crisis. ‘This demonstrates the need for further reform in order for the PA to meet the standards of a well-functioning state … The fiscal crisis is especially acute because much of the West Bank economy still depends on the public sector and on construction projects, both still heavily financed by foreign aid. It also serves as an alarming warning sign for the stability of the Palestinian economy … The current fiscal situation raises doubts about whether the PA will be able to reduce its dependency on foreign aid in the coming years’.”

Barak Ravid’s article, based on an insider briefing, is posted here.

Amira Hass took the Israeli report apart, in another article entitled Ignoring Israel’s complete domination, published in Haaretz here:

“Who better than these delegates [the Donors, at the Ad Hoc Liaison Committee meeting in Brussels last week] knows the great service the family of nations is doing to Israel by providing massive, ongoing aid to the Palestinians? Taxpayers around the world are the ones who are relieving Israel of its obligations as an occupying power and repairing the damage it is causing. It turns out it’s easier for the family of nations to fund the occupation than to force Israel to put an end to it. The guys in our finance and defense ministries – upon whose data the report is based – state, in fact, that the donor countries should get their checkbooks ready, because our policy this year won’t be different.

With smug arrogance, the report’s authors ignore Israel’s complete domination over the resources essential to economic progress and expansion: land, water, time, a Palestinian population registry, currency, territorial expanse, air space, radio-frequency spectrums, territorial contiguity, banking services and television broadcasts, freedom of movement, border crossings, foreign nationals who are allowed entry and the duration of their stay, highways, and personal and communal security.

With all the precision of a shopkeeper, the drafters of the report recount all of the measures that Israel, in its great magnanimity, has taken ‘to support economic growth in the West Bank’. But beyond all the means of support detailed in the report, there are the unmentioned hours wasted by Palestinian, American and European bureaucrats seeking to convince their Israeli counterparts to put them into practice

The number of tourists coming to the West Bank city of Bethlehem last year, for example, was 1,174,280 (compared to 1,092,811 – note the precision! – in 2010), according to the report. Then there was the extension of the hours of operation at checkpoints; the agreement over the Palestinian police presence in Area B (which is under Israeli military control and Palestinian civil responsibility); construction of a visitors’ lounge for meetings between Palestinian and Israeli business people at one of the checkpoints; the drilling of four wells in a nature reserve’s eastern aquifer; 17 (again, note the precision!) preparatory meetings (regarding water infrastructure) with representatives of the U.S. State Department and USAID; one meeting with a Dutch representative over Israeli-Palestinian cooperation; 434,382 cars, owned by Palestinian citizens of Israel, that were allowed passage via the West Bank town of Jenin; consideration of a Palestinian request for a customs exemption for cars owned by foreign investors and the disabled; and approval of 2,777 requests for changes of address on ID cards from Gaza to the West Bank (of 3,857 people who sought approval).

With a whiff of the theories of economist Milton Friedman, the report sneers at the size of the Palestinian public sector. But if there is anything that assures Palestinian social stability – and in turn quiet and prosperity for Israel – it is the regular (if unreasonably low ) salaries paid to that public sector. Since the Oslo Accords between Israel and the PLO were drafted in the 1990s, payment of wages has been a major means by which support of and dependence on the PA leadership has been buttressed. The adaptability of the Palestinian leadership to Israel’s policy of carving out Palestinian territorial enclaves was based in part on that very internal instability“…

According to one adviser to UNRWA, the vote count has been revised to 114 votes in favor [not just 107, as was reported yesterday]… But, because my internet was down from morning till evening [apparently, a Washington Post blog reports that it was a hostile attack on Palestinian servers, and affected both the West Bank and Gaza], I haven’t had a chance to check who, how, or why…

A Swedish diplomat expressed shock and more at Sweden’s negative vote, in a conversation with a friend on the terrace of the Ambassador Hotel this evening.

A UN person said that he believes France’s decision to vote yes is because of the recent Tunisian vote, with an Islamist party taking the overwhelming majority, as well as changes in the air in Morocco and Algeria.

Personally, I think the explanation for the French “yes” is that UNESCO is based in the French capital Paris [where it would likely have received a rather mixed reception], and France is UNESCO host country…

Daniel Levy writes on FP’s Middle East Channel here that “France has stated that it would support Palestine at the UNGA but not at the UNSC”.

Yes, this is also a good explanation — it is, in so many words, indeed what French President Sarkozy said in his speech at the UNGA High Level Debate in September, before Palestinian President Mahmoud Abbas formally filed the Palestinian “UN bid” for full membership via the Security Council.

If you extrapolate a bit more widely, you could postulate, from factoring in the UNESCO vote, that France will support Palestine everywhere but in the UN Security Council …

What is clear is that the Europeans don’t have a common position, at least not yet — though I still suspect one may firm up by the time we come to the UNSC vote on the Palestinian vote. A common European position to abstain will mean that the Palestinian request will fail to get the necessary number of votes to pass — so the U.S. will not be obliged to exercise its veto power, as threatened. This is a slightly more gentle way of deferring the Palestinian request, and telling them to “come back later”.

Here on the terrace of the Ambassador Hotel in [East] Jerusalem, the consensus is that Saudi Arabia will pay any deficit in UNESCO’s budget due to the near-instantaneous U.S. announcement that it is withholding a $60 million payment in November.

But who will make up the shortfalls in funding to the Palestinian Authority? The U.S. has already — and since August — withheld some $200 million in money earmarked for USAID projects in the West Bank, in anticipation of the Palestinian “UN bid”. Now, again today, the Israeli government has once more decided, in response to the UNESCO vote, to suspend transfer of tax money collected on behalf of the Palestinian Authority. The Jerusalem Post reported Tuesday night that Palestinian presidential spokesman Nabil Abu Rudaineh said that “The talk about freezing tax revenues belonging to the Palestinian Authority is a provocation and theft of our money … We call on the Quartet and the US administration to put an end to these practices, which will have a negative impact on the whole region”. This JPost report is published here.

Meanwhile, the estimable Craig Murray [a former career diplomat and former British Ambassador to Uzbekistan, who now calls himself simply a "human rights activist"] has written here on his blog that, as a result of the UNESCO vote yesterday, “Palestine is now a state. Membership of the United Nations is not in international law a pre-condition of statehood, and indeed is not compulsory for states. The existence of states not members of the UN is recognised in international law, not least by the UN itself. Palestine has just joined UNESCO for example under a provision which allows states which are not members of the United Nations to join if they get qualified majority support – which Palestine overwhelmingly did. So the UNESCO membership is crucial recognition of Palestine’s statehood, not an empty gesture. With this evidence of international acceptance, there is now absolutely no reason why Palestine cannot, instantly and without a vote, join the International Criminal Court. Palestine can now become a member of the International Criminal Court simply by submitting an instrument of accession to the Statute of Rome, and joining the list of states parties … There is an extremely crucial point here: if Palestine accedes to the Statute of Rome, under Article 12 of the Statute of Rome, the International Criminal Court would have jurisdiction over Israelis committing war crimes on Palestinian soil. Other states parties – including the UK – would be obliged by law to hand over indicted Israeli war criminals to the court at the Hague”…

As was pointed out in the comments section on this Craig Murry post, “On 22 January 2009, the Palestinian National Authority lodged a declaration with the [ICC] Registrar here, under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction”.

This was done a few days after a cease-fire went into effect [on 18 January 2009, just hours before Barack Obama was sworn in as U.S. President] in Israel’s massive Operation Cast Lead against Hamas in Gaza. And, the PA Foreign Minister, Riad Malki [who was present in the Paris meeting of UNESCO yesterday] went to the Hague in mid-February to speak with ICC Prosecutor Luis Ocampo. In a press conference in Ramallah in September, Riad Malki said that he was told at that time that it would be better if Palestine filed its request for an ICC investigation into the Gaza operation if it were a STATE.

Craig Murray’s post raises a very interesting point. Now that the State of Palestine has been admitted as a full member of at least part of the UN system, this is a very effective counter to the often-heard Israeli argument that because there has never in history been a Palestinian state , there is no justification for one now. [This particular argument gets worse, and goes on to say there never was and is not now anything such as the Palestinian people, so what are the Palestinians going on about, the whole thing is ridiculous, etc. etc. etc.]…

This Israeli argument about the irreality of anything really Palestinian was previously refuted, at least theoretically, by American international law professor John Quigley, who has argued that the 1988 Palestinian Declaration of Independence means that the state exists [and just "statehood", which I understand to mean the realization of a state on the ground, that has been lacking].

Now, this Israeli argument about the total absence of Palestinian sovereignty and statehood has been refuted in actual UN practice.

As Craig Murray writes in response to a comment on his post, “Diplomacy is the only chance for Palestinians. They can’t win by force…”

In response to the Palestinian move, the Israeli Government reports that Prime Minister Netanyahu has, as a first step, in response to the UNESCO move, this evening ordered — ordered, not merely permitted — the construction of some 2,000 additional housing units in “the Jerusalem area” [actually, in the West Bank].

The Prime Minister’s media adviser [whoever that is] issued a statement saying that Netanyahu has now “directed that the construction of apartments in Jerusalem, in the Etzion Bloc and in Maaleh Adumim, be accelerated. These are thousands of residential units, in areas that will, under any future agreement, remain part of Israel. The foregoing directive was issued at the end of the first discussion by the forum of eight ministers; the next will discuss future steps”.

Self-determination, an American principle developed by President Woodrow Wilson during the First World War, used to be a very important ideal — and it used to be considered, at the UN, a grievous international wrong for any country to prevent another people’s self-determination. And, the UNGA has many times endorsed the right of the Palestinian people to self-determination.

Henry Siegman, former President of the American Jewish Congress, wrote this summer on FP here that “it is in fact Israel that is engaged in the ‘delegitimization’ of the Palestinian people’s right to national self determination and statehood, not the reverse. For proof of this one need look no further than Israel’s near-hysterical efforts to prevent the Palestinians from bringing their case to the United Nations, the institution that happens to be the source of Israel’s own legitimacy, as acknowledged in Israel’s Declaration of Independence. For what Israel’s current government apparently most fears is the legitimacy that the United Nations uniquely can confer not only on Palestinian statehood but on the 1967 borders. A state that since 1967 (i.e. for most of its existence) has imposed a military occupation on its neighbor, confiscating its territory and dispossessing its population, is guilty not only of an abstract challenge to its neighbor’s claim to statehood but of violently preventing it on the ground. Such rogue-like behavior does indeed bring Israel’s own legitimacy into question … Before casting the promised veto at the United Nations that would deny Palestinians their right to national self-determination, President Obama might well want to rethink the fairness, legality, and morality of such a course, not to speak of its damage to America’s credibility in the region and beyond … Surely he must know that no one anywhere believes any longer that the peace process as its exists, to which he has urged Palestinians to entrust their future, promises anything other than hopelessness and despair”…

Meanwhile, throughout the day, diplomats, Palestinian officials, and journalists were discussing — ok, well not really discussing, but certainly at least mentioning — reports attributed to Egyptian officials who said that they have obtained Israeli agreement to hold off until midnight [which just passed] on a massive air assault that is ready to go against Gaza [unless a cease-fire really takes hold], in response to rocket fire from Gaza that killed 1 Israeli man and wounded number of others in the coastal city of Ashdod that continued intermittently an Israeli retaliatory strike on Gaza on Saturday afternoon that lasted through Monday, killing 12 Palestinians and wounding many others.

The location seems to have been specially selected to please the Palestinian side, and was a gesture laden with symbolic significance.

Quartet Special Envoy Tony Blair, who seriously irritated Palestinian officials recently in what they said was a heavy-handed attempt to dissuade them from pursuing their “UN bid” for full membership in the international organization, was also present. Despite some comments that Blair was “persona non grata”, etc, the Palestinian negotiators seemed to have little-to-no problem in dealing with him in these “proximity” or indirect talks, in which the two sides didn’t actually meet each other, but stayed in separate places while the Quartet envoys moved between them.

According to one news report [in the Wall Street Journal, here], Tony Blair was the essential actor in the Quartet meeting, shuttling in the meetings “between Israelis and Palestinians on Wednesday with an international blueprint for a return to negotiations” — which seems to be just ever so slightly misleading, particularly given the Palestinian anger and unease with his performance during the four+ years he’s held his functions, being present in Israel-Palestine less than one week a month in those four+ years, and meanwhile earning a fortune on the side …

The idea, according to a U.S. State Department official speaking ahead of today’s talks, was “to get each of them working on concrete proposals on security and borders / territories”.

Basically, the U.S. says it has heard “positive noises” from the two sides, and is determined to ignore anything else.

So, the Quartet has just passed the first stage of the plan [the two parties should have an initial meeting] proposed on 23 September, the day Mahmoud Abbas deposited the Palestinian “UN bid” at UN headquarters in New York.

In the second stage, which should last for approximately three months, the two sides must each work, separately, on their own proposals on the two issues [security + borders]. If there is no breakthrough at that point, the problems will become more acute. By six months, which is where the first real crunch will be, the two sides are supposed to have made “substantial progress” in their discussions, if not also on their overall relations with each other…

Two days ago, in a briefing to the UN Security Council, the UN Special Coordinator Robert Serry said: “We remind the parties that the Quartet reaffirmed the international legal basis for peace talks and called for the parties to overcome the obstacles and resume negotiations without preconditions. The Quartet further called for proposals within three months on borders and security, with a view to achieving substantial progress within six months and an agreement no later than the end of 2012. The Quartet stressed the need for the parties to refrain from provocations and reiterated their Roadmap obligations”.

Serry also told the Security Council that “The Palestinian application for United Nations membership is being examined by this Council, and is a matter for Member States. Also, the Palestinian request for membership in UNESCO is being reviewed before a vote by the General Conference. This step could have repercussions for the Organizations as it has legal and political implications for the funding provided by some Member States. The Secretary-General is increasingly concerned about ramifications of such a step for the United Nations and asks all to act wisely in determining a course of action”.

Despite this note of caution, or warning, Mahmoud Abbas said in Ramallah that the Palestinians will press ahead with their UNESCO bid, too.

Serry participated in today’s meetings.

UPDATE: The Jerusalem Post’s Herb Keinon reported on Saturday night here that the Quartet participants in the proximity talks were “David Hale from the US, Helga Schmid form the EU, Sergei Vershinin from Russia and Robert Serry from the UN”…

Keinon added that “Back in the early part of 2010, George Mitchell, who was then Obama’s hand-picked Middle East envoy, was doing the same thing that the Quartet representatives tried to do on Wednesday: meeting with the sides to urge, nudge, cajole, pressure them back to direct negotiations. There was even a name given to this whole exercise: proximity talks. Tellingly, more than a year later, we are pretty much at the same spot: trying to get the two sides once again to agree to direct talks, with the Palestinians saying they will only do so if Israel freezes settlement construction, and various types of pressure being exerted on Israel to stop the building. The Quartet, in its plan for renewing negotiations that was unveiled at the UN on September 23, called for a direct meeting between the sides within a month. Instead, what it got was a reincarnation of ‘proximity talks’, and even that three days late. What distinguishes late 2011 from early 2010 is that now the man in the middle is no longer the US represented by Mitchell, nor even Hale, his low-profile replacement (Mitchell handed in his resignation in May). The man in the middle is actually a grouping of men and women – the Quartet representatives. Is this another example of the US leading from behind? Blair, in an interview this week with the Los Angeles Times, said the Quartet’s more active role in the peace process was not due to the US stepping back, because, as he said, ‘the US is still very much there’. But, he said, the US is ‘also saying to the international community, “You’ve go to step up with us here”.’”

After the proximity talks, Serry’s office put out a statement claiming — with remarkable optimism — that “Both Parties expressed their readiness to engage with the Quartet, on the basis of its statement of 23 September, to overcome the current obstacles and resume direct bilateral negotiations without delay or preconditions. The Parties agreed with the Quartet to come forward with comprehensive proposals on territory and security within three months in the context of our shared commitment to the objective of direct negotiations leading toward an agreement by the end of 2012. Envoys reiterated the Quartet call of 23 September upon the parties to refrain from provocative actions if negotiations are to be effective. Quartet Envoys agreed with the parties to meet regularly for the next 90 days to review progress”.

However, the Chief Palestinian Negotiator, Saeb Erekat gave no indication that the meeting had been quite so positive. Erekat is back on the job despite having resigned [he now explains that his resignation was not accepted] after a series of unflattering revelations following a major leak of documents [the "Palestine Papers"] from his office and a few other places in Ramallah, and then were used as the basis for a series of explosive programs on Al Jazeera TV about the conduct of the negotiations in recent years. 

Instead, after the Proximity Talks hosted by the Quartet, a statement was issued in Erekat’s name saying that “We explained to the Quartet that we are prepared to sit at the negotiating table as soon as the Israeli government freezes all settlement construction and accepts clear terms of reference, specifically the 1967 borders. These are not favors that Israel is doing for us. These are its obligations in accordance with international law and the Road Map. Anything short of that will simply put us back on the failed track that we have been on for the last 20 years”.  The Palestinian participants in these meetings were, apparently Saeb Erekat and Mohammad Shtayyah.

Before these Proximity talks, Erekat issued a statement saying that the continuing Israeli settlement enterprise in occupied Palestinian territory was nothing other than “legalized looting”.

According to a press statement published by the PLO’s Negotiations Affairs Department, “Chief Palestinian Negotiator Saeb Erekat said, ‘All Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, are illegal according to international humanitarian law. There are no exceptions to this well-established legal principle’. Dr. Erekat responded to attempts by the Israeli government to draw false distinctions between different kinds of illegal settlement construction, whereby Israel alleges that there is so-called private and public construction. ‘Looting is not made legal under any circumstance. International humanitarian law and relevant UN resolutions draw no distinction between different forms of settlement construction. These actions constitute war crimes under the Rome Statute’, said Dr. Erekat”. This statement is posted here.

According to Israeli media reports, the Israeli participant in the Quartet’s Proximity talks with the two parties was Prime Minister Benyamin Netanyahu’s aide, Isaac Molcho.

After the Proximity talks with the Quartet,  Fatah’s Revolutionary Council was convened this evening [Wednesday] for a meeting in the Muqata’a in Ramallah, presided over by Fatah leader Mahmoud Abbas.

UPDATE: On Thursday, the second day of the Fatah Revolutionary Council, Fatah + PLO leader Mahmoud Abbas [who continues as President of the Palestinian Authority, or PA, though his term of office has legally expired] reportedly said in the Fatah meetings that “it was important to address concerns that the Palestinian Authority had become defunct.
‘Where are we going? That’s what I said to (US) President (Barack) Obama’, he said, according to a text of his address…’The people and Palestinian institutions are asking what the point of its continued existence is’.” This is reported by the AFP news agency, here.

With one notable exception, Israeli officials were relatively quiet in advance of the meetings in Jerusalem, and also afterwards as well.

The exception was Israel’s Foreign Minister, Avigdor Lieberman, who escalated the direct personal attacks he made earlier thiso week against Palestinian President Mahmoud Abbas. Today, Lieberman’s office distributed a document claiming that Palestinian President is the main obstacle to the peace process, and said that “The unavoidable conclusion is that there will be no agreement as long as (Abbas) is the leader of the Palestinian Authority, especially given the fact that he is sacrificing Palestinian interests for his own personal future”. Haaretz reports that this document was “sent to all 27 European Union ambassadors in Israel and to ambassadors from the U.S., Russia, China, India, Japan, Colombia and Quartet envoy Tony Blair”.

The Haaretz report added that “The Foreign Ministry distributed the document without co-ordinating with the relevant departments, who found out about it only when they were asked to pass it on to foreign embassies. Many foreign ambassadors called the Foreign Ministry asking if the document represent’s the official position of the ministry or of the state of Israel. ‘We didn’t know what to respond’, said a foreign ministry official”. This is posted on Haaretz here.

On Monday, Lieberman reportedly said that “If there is one obstacle that should be removed immediately, it is [Abbas] … If he were to return the keys and resign, it would not be a threat, but a blessing … The only thing that interests Abbas is to inscribe himself in the history books as he who brought about the Palestinian state and the reconciliation with Hamas … Anyone who succeeds him would be better for Israel. If Abu Mazen goes, there would be a chance to reignite the peace process.” This is also reported in Haaretz, here.

In response, according to that same article in Haaretz, Palestinian Authority Civilian Affairs minister Hussein as-Sheikh wrote to Israel’s Prime Minister Benyamin Netanyahu to complain that Lieberman’s remarks represent “explicit incitement against President Mahmoud Abbas”, and “a direct threat against a natural partner for peace … [W]e see them as an explicit call to kill president Abbas … and could be “seen as a green light that could be taken advantage by extremists”.

On Tuesday [26 July], during the now-regular monthly meeting of the UN Security Council on the Middle East, Serry — who is the new UN Special Coordinator for the Middle East Peace Process and also Personal Representative of the UN Secretary-General — Serry told the UN Security Council that “the political process to resolve the Israeli-Palestinian conflict is in profound and persistent deadlock“.

He spoke of the evident “differences and lack of trust between the parties”.

According to the logic of Serry’s statement, Israel maintains its military occupation that began with its conquests in the June 1967 war, some 43 years ago, because of Israeli leadership’s gnawing concerns for “lasting security”.

In the absence of a credible political horizon for ending the occupation that began in 1967, and of any framework for meaningful talks, and with Israeli settlement activity continuing, the Palestinian leadership is now actively exploring approaching the UN, Serry said — as a way to help preserve the two-state solution.

Israel has objected to any such move, calling it a “unilateral” action which violates — and might invalidate — the Oslo Accords negotiated with the Palestine Liberation Organization [PLO] in the early and mid-1990s. Various Israeli officials have threatened a number of possible difficult reactions, including an intensification of the difficulties [for Palestinians] of the Israeli occupation. Some Israelis have even threatened possible partial annexation of areas in the West Bank [parts of the West Bank in and around the Old City of Jerusalem have already been effectively annexed in the weeks following the June 1967 war, although UN member states have voted, in the UNSC and in the UN General Assembly and in other bodies and organs, to consider this unilateral Israeli act "null and void"].

This monthly UNSC debate, which has become rather routine, was described this time in Israeli media reports as a kind of a dress rehearsal for what might happen at the UN in September, when the Palestinian leadership has decided to make some kind of as-yet-undefined move towards functional statehood [unless, of course, they change their minds at the last minute, as they have with so many other things, including local and national elections...]

Serry told the Council that “the PA has in key areas reached a level of institutional performance sufficient for a functioning state … and is ready to assume the responsibilities of statehood at any point in the near future”.

Twenty years after the start of the inconclusive peace talks, starting with the multilateral Madrid Peace Conference in October 1991 [whose very slow progress lead to secret side talks, sponsored by Norway, between Israel and Palestinian figures, that resulted in the Oslo process that in 1994 instituted a transitional five-year arrangement including the establishment of a local Palestinian Authority in the West Bank and Gaza], “yet, again, we are reaching a point where the parties have failed to meet an agreed timeline for a permanent status agreement … [and] I cannot but describe the situation where Palestinian state-building has matured in the West Bank, but the political track has failed to converge, as dramatic”, Serry said.

Serry added that, at this sensitive and important time, but in the absence of a credible political path forward, accompanied by more far-reaching steps on the ground, he feared that “the viability of the Palestinian Authority, and its state-building agenda … and of the two-state solution itself”, are indeed at risk.

Contradicting what he implied was the Israeli argument for maintaining its military occupation of Palestinian land and lives, Serry stated that “real security and economic gains have been made, benefitting both peoples”.

He noted, in an even tone, that there needs to be “more political and physical space”, and said that Israel should take steps to roll back the occupation, including “expansion of Palestinian urban centers to accommodate population growth and industrial activity which would require some parts of Area C” [zones in the West Bank defined in the Oslo Accords as areas of total Israeli civil and security control -- and where all Israeli settlements and their infrastructure, including roads, are located].

Palestinian water and sanitation systems in the West Bank have especially been targetted, Serry told the Council.

And more than 700 Palestinians in the West Bank have been displaced with the destruction of some 370 structures — these are the highest numbers since 2006, he said.

Serry added that Israeli settlements “are illegal under international law and prejudge final status negotiations”.

He noted that, at the same time, the Palestinian Authority is facing a shortfall in donor funding, and was only able to pay half salaries in June… and UNRWA faces an unprecedented funding shortfall of some $61 million dollars for its core programs, which could have great adverse affect Gaza as soon as October, Serry said.

The Observer of Palestine, Riyad Mansour, was described in the Israeli media as “breaking down” when he spoke and asked why the Palestinians should endure one more day of Israeli occupation: “This is the time to end the Israeli occupation. This is the time for Palestine’s independence”.

His voice was gravelly and cracking, as if he had a cold or some small congestion, at the beginning of his speech. About 18 minutes into reading his prepared text, he paused, swallowed, took a sip of water, and sniffed or sniffled once — just after reading the phrase, “This is the time for Palestine’s independence”.

It would be a great exaggeration, however, to call this “breaking down in tears”, as was first reported by Israel’s YNet website, here.

This report on an alleged breakdown was then echoed, a bit surprisingly, by the Tel-Aviv-based +972 online magazine [named after Israel's international calling code], here.

At that point, Mansour had just said “there is no justification for the denial of the rights and freedom of the Palestinian people”.

The coming UN bid by the Palestinian leadership, he said, is not a unilateral but rather a multilateral action.

He blamed the Quartet for “a serious missed opportunity” [due, he said, to Israel's intransigence] in failing to endorse the parameter proposed by U.S. President Barack Obama to restart negotiations on the basis of the pre-June 1967 “borders” and come up with a framework for moving ahead, in the Quartet meeting at dinner in Washington on 11 July.

Mansour’s words expressing appreciation for their recent meeting in Serry’s office in Jerusalem — located in Government House, the former British headquarters on the southern edge of Jerusalem near Bethlehem — first made Serry smile, then raise his eyebrows, as Mansour said the Palestinians have hoped, “when we have our own independent state”, to relocate their Presidential office in the colonial British Mandate-era Government House with its rose garden and tall trees, and Art Deco mixed with Oriental architectural style …

The full three-hour meeting can be viewed here, while the UN’s verbatim record, or transcript can be read here.

Israel’s newly-accredited Ambassador to the UN, Ron Prosor, told the Council that, if carried out, a Palestinian move at the UN would be a unilateral attempt to create a state while bypassing negotiations, which s publicly opposed by some Palestinian leaders, and which could lead to violence … because it “could create expectations that could not be met”.

And, Prosor suggested, Israel’s Ben Gurion international airport, located near Tel Aviv, could come under rocket attack from the West Bank if a Palestinian state is declared unilaterally, rather than as a result of careful negotiations [but the Israeli Ambassador did not explain why there has never been any such apocalyptical attack so far, despite the fact that such a prospect was publicly discussed for the first time in 2004 in speculative reports in the Israeli media, sourced to unnamed Israeli security officials].

The American representative told the UNSC that the “temptations of symbolism” should be avoided. The U.S. would not support “symbolic actions to isolate Israel at the UN in September” [which in any case would not create an independent Palestinian state, she stated]. Nor would the U.S. support unilateral campaigns at the UN in September, or any other time.

“We do not accept the legitimacy of continued Israeli settlement activity”, she said, using a formulation that the U.S. has used before — in fact, for decades, as she noted. This apparently means that the U.S. believes everything up until a certain point [now?] is ok, but continuing it beyond that point [now?] would not be seen as legitimate…

The U.S. representative added that the fate of existing settlements should be dealt with by the parties.

An AFP story that appeared in the first week of July said that the UN report considered these deaths “unacceptable”.

And, Sanberk said today: “obviously we cannot be expected to accept nine deaths”.

The Turkish passenger ship, chartered by the Turkish humanitarian aid organization IHH, was carrying about 600 passengers and crew, and was sailing towards Gaza as part of a “Freedom Flotilla” with a number of other boats carrying international activists and cargoes of humanitarian aid.

The stated aim of the Freedom Flotilla was to break the Israeli blockade of the Gaza Strip.

Israel declared a formal naval blockade of Gaza’s maritime space on 3-4 January 2009, as the IDF began the ground phase in its Operation Cast Lead against Hamas.

Sanberk is Turkey’s representative to the panel, which was assembled by UN Secretary-General Ban Ki-moon, and headed by fFormer New Zealand Prime Minister Geoffrey Palmer. He spoke to the English-language Turkish newspaper, Today’s Zaman, in Istanbul, the paper said, after a week of closed-door negotiations in New York that started at the beginning of July. The paper added that “The report’s publication has been further delayed until the end of July in a [further] attempt to give Turkey and Israel a chance to resolve their differences”.

Sanberk noted that “it is probably the first time in Israel’s history that it is voluntarily taking part in a UN investigation”, and said that Israel seems to have “an attitude of making a diplomatic gesture by accepting the UN investigation. They have repeatedly expressed their demand for understanding in the face of their serious security problems, and expect the same understanding from Turkey, which they see as a friend”.

In the interview, Sanberk said that “The report clearly indicates the responsibility of the Israeli soldiers, while also acknowledging that Israel has security concerns and the Gaza blockade is legal. However, we know that the Israeli blockade of Gaza amounts to collective punishment as it includes civilians, women and children who bear no responsibility for the perceived threat to Israel”.

According to Today’s Zaman, Sanberk “also said that even though these details are not clearly stated in the [UN] panel’s report, another UN body, the UN Human Rights Council fact-finding mission in Geneva, had said last October that Israel’s military violated international law during the raid”.

“It is interesting to note that two bodies, both under the UN, have conflicting results in their reports”, Sanberk said.

He then added: “I should stress that the [UN's] report’s reference to the legality of the Gaza blockade is unacceptable to us … as other UN bodies challenge this view. As a maritime power with the longest coast in the Eastern Mediterranean, it is obviously unacceptable to us that a country be allowed to intercept ships according to its own interpretation of the law. The overarching rule of international law is freedom of navigation on the high seas. It’s [a] pillar of international law.”.

Sanberk explained that “the Israeli side has told the world that the act of the Israeli marines was a legitimate act of self defense, but the world has not taken this rationale seriously as the attack occurred in open seas, 72 miles from Israel, and 64 miles from the so-called blockaded area. The attack, which included frigates, submarines, planes, helicopters, speed boats and heavy weapons, was promulgated against a vessel carrying humanitarian aid and unarmed activists who had to protect their lives with no firearms. It resulted in nine deaths and several injuries. The notion of self defense comes with restrictions established by international law, similar to those in criminal law, stemming from the idea of a sense of proportionate response. The military attack on the humanitarian convoy inflicted disproportionate casualties upon the civilians. Besides, it is prohibited to attack vessels carrying humanitarian cargo under any circumstances. Israel is trying to mitigate its responsibility. It is trying to say that it had no intention to kill people and that operational mistakes occurred. But even if I spill some coffee on you, I would apologize and offer to pay the cost of your dry cleaning; this is expected. Israel fears that the marines and their commanders would be exposed to prosecution abroad because an apology would be seen as an admission of culpability”.

But, he noted, “the report also highlights the responsibility of the Israeli soldiers for the deaths and injuries. Therefore, if Israel is ready for an apology and compensation, we are ready to leave the unfortunate event behind”.

Sanberk, who currently heads the Ankara-based International Strategic Research Organization (ISRO/ USAK), also said in the interview that “We would like Israel to demonstrate its capacity to act in a rational way. Israel expects an understanding that it has a security problem, but the Palestinians also have a security problem and they are entitled to enjoy the blessings of peace and prosperity just as Israelis are. Yes, we respect our heritage with the Israelis. We have a unique relationship with Israel, but we stand in solidarity with the Palestinians, too”.

This interview can be read in full here.

A brilliant choice.

See his separate opinion on the Advisory Opinion on the Wall, here, written when he served as a Judge on the International Court of Justice:

“What I consider relevant to emphasize is that this special responsibility [of the United Nations for Palestine, as mentioned in the main body of the Advisory Opinion of July 2004] was discharged for five decades without proper regard for the rule of law. The question of Palestine has dominated the work of the United Nations since its inception, yet no organ has ever requested the International Court of Justice to clarify the complex legal aspects of the matters under its purview. Decisions with far-reaching consequences were taken on the basis of political expediency, without due regard for the legal requirements. Even when decisions were adopted, the will to follow through to implementation soon evaporated. Competent United Nations organs, including the General Assembly and the Security Council, have adopted streams of resolutions that have remained wholly or partially unfulfilled. The United Nations special responsibility has its origins in General Assembly resolution 181 (II) of 29 November 1947, hereafter the Partition Resolution”…

UNSC resolution 1970 was adopted unanimously. It also freezes assets of Colonel Muammar Qaddhafi and his children, and imposes a travel ban on approximately 22 Libyans connected to Qaddhafi.

The full implications of this decision will only become clear through time…

Agence France Press reported Sunday that “Libyan protest leaders established a transitional ‘national council’ on Sunday in cities seized from Moamer Kadhafi, as world leaders called on him to quit and protesters closed in on Tripoli. ‘The creation of a national council has been announced in all freed cities of Libya’, Abdel Hafiz Ghoqa told a Benghazi news conference … The council is the ‘face of Libya in the transitional period’, he said, adding that consultations were under way on the new body’s composition and duties”.

Nick Cohen wrote in the Comment is Free section of The Guardian newspaper here, that — until now — almost nothing in the Middle East was news if it didn’t involve Israel: “For both sides, the lives of hundreds of millions of Arabs, Berbers and Kurds who were not involved in the conflict could be forgotten … Far from being a cause of the revolution, antagonism to Israel everywhere served the interests of oppressors … Europe’s amnesia about how tyranny operated in our continent explains why the Libyan revolution is embarrassing a rich collection of dupes and scoundrels who were willing to laugh along with Gaddafi … It was not only BP and other oil companies, but British academics who were happy to accept his largesse. The London School of Economics took £1.5m from Saif al-Islam Gaddafi, money which by definition had to have been stolen from the Libyan people, despite being warned to back away by Professor Fred Halliday, the LSE’s late and much-missed authority on the Middle East, who never flinched from looking dictators in the eye … The thinking behind so many who flattered him was that the only issue in the Middle East worth taking a stand on was the Israeli-Palestinian conflict, and that the oppression of Arabs by Arabs was a minor concern. The longevity of the regimes presided over by the Gaddafi, Assad and Mubarak families and the House of Saud ought to be a reason for denouncing them more vigorously, but their apparent permanence added to the feeling that somehow Libyans, Syrians, Egyptians and Saudis want to live under dictatorships. The European Union, which did so much to export democracy and the rule of law to former communist dictatorships of eastern Europe, has played a miserable role in the Middle East. It pours in aid but never demands democratisation or restrictions on police powers in return”…

U.S. President Obama said on Saturday that Qaddhafi must leave power. On Sunday, as she boarded a plane for Geneva to address a regular session of the UN Human Rights Council, U.S. Secretary of State Hillary Clinton told journalists: “Let me start by saying as strongly as I can that the United States and the American people support the aspirations and rights of the Libyan people. They are clearly sending as strong a message as they are capable of doing that it is time for Qadhafi to go. We think he must go as soon as possible without further bloodshed and violence. We are also very conscious of the actions that have been taken against the Libyan people by the Qadhafi regime … We want him to leave and we want him to end his regime and call off the mercenaries and those troops that remain loyal to him. How he manages that is obviously up to him and to his family. But we have consistently in many conversations over the last week sent messages, and along with partners in the region and beyond have made it clear we expect him to leave. But we’re not involved in any kind of negotiation with him over that”.

Clinted noted that “the Security Council resolution passed unanimously yesterday makes clear there will be accountability for crimes against humanity and war crimes and other atrocities that are being perpetrated against the Libyan people, including a referral to the International Criminal Court. And I want to underscore this unanimous message from the Security Council to those who are around Qadhafi that you will be held accountable for the actions that are being taken and have been taken against your own people. The Security Council resolution yesterday was part of a concerted effort that the United States has been lining up and implementing over the last days, both for unilateral and multilateral action. And we will continue to pursue steps aggressively that we believe will make a difference. Obviously, the Security Council resolution, which was passed in record time and included countries that are often reluctant to empower the international community to take such actions, sends a strong, unmistakable signal. The specifics that go to targeted sanctions and arms embargo and other measures are exactly what we have been looking toward and wanting to achieve in this period. It also opens the door for humanitarian relief, which is going to be essential – the numbers of people fleeing across the borders, particularly into Tunisia and Egypt, where those two countries are facing huge humanitarian demands, plus internally displaced people. There’s also a strong message in the Security Council resolution to countries in the region: You must stop mercenaries, you must stop those who may be going to Libya either at the behest or opportunistically to engage in violence or other criminal acts. And we will be working closely with those neighboring countries to ensure that they do so”…

On her upcoming meetings in Geneva, Ciinton said: “Well, there are a number of reasons why this is turning into a significant meeting. I will be meeting with many of my counterparts from Europe and beyond to discuss ways that we can better coordinate and organize in meeting the expectations laid down by the Security Council, and thinking through how we can respond to the needs of the Libyan people not only in a humanitarian way but in a political and civil response as they try to sort through how they’re going to organize themselves post-Qadhafi”…

(2) Direct Israeli-Palestinian negotiations are “at an impasse”.

(3) “The Quartet envoys have been in regular contact and Principals are discussing a proposal to meet soon to review developments”.  Oh, yes, and on the settlements:  the  UN  report noted that the UNSG had recently “reaffirmed that settlement activity is illegal under international law and contrary to the Roadmap”, and also “expressed disappointment that the moratorium had not been renewed”.

(4) “Despite Palestinian efforts, Israeli security forces, citing security concerns, conducted 353 operations in the West Bank during the reporting period, in which 6 Palestinians were killed, including two leaders of Hamas Izz al-Din al-Qassam Brigades allegedly involved in the killing of four Israelis near Hebron on 31 August. Also 157 Palestinians were injured and 330 arrested. Incursions on this scale weaken efforts to build genuine security cooperation. One Palestinian laborer [n.b. - the UN report to the Security Council did not characterize him either as a "terrorist" or an "infiltrator"] was killed while trying to reach East Jerusalem through the barrier, and another suffered a fatal heart attack. A total of 44 violent incidents were recorded between local Palestinians and settlers, in which 6 Palestinians and 4 Israelis were injured”.

(5) “Despite efforts to ease restrictions on movement and access, the number of obstacles [n.b. - a nice word. Not "roadblocks", not "checkpoints" -- maybe including a number of dirt mounds or boulders blocking roads?] in the West Bank remained at 508“.  Personally, I think the UN monthly report should contain a special chapter on the disgraceful and scandalous conditions at Qalandiya Checkpoint…

(6) “There were renewed confrontations in sensitive areas of East Jerusalem during the reporting period, underscoring the tensions caused by the presence and expansion of settler communities in the heart of Palestinian neighbourhoods”…

(7) “The status of the four Palestinian lawmakers from the Hamas-affiliated Change and Reform bloc [they are facing "deportation" from Jerusalem] remains unresolved. This unsustainable situation needs a sensible resolution that ensures they are not expelled from Jerusalem.

(8) Despite “modest gains”, it was reported that “the situation in Gaza remains a source of serious concern” … and “the current imports still represent a third of the June 2007 pre-blockade weekly average. We reiterate that the appropriate way to meet needs in Gaza is through the further opening of legitimate crossings”.

(9) At the moment, construction materials are allowed only for projects under UN supervision, and the report stated that “the UN will present additional programmes of work, before the end of the year and will also continue to work with the Government of Israel to streamline implementation arrangements. One immediate step would be for Israel to expand the working hours and days for which the Karni crossing is open”.

(10) The UN report called for the immediate release of Gilad Shalit, as well as “humanitarian access [to him] without further delay” — and it noted “reports of a resumption of efforts to conclude an agreement that would secure his release in exchange for the release of a number of the more than 9000 Palestinian prisoners in Israeli jails”.

(11) And, “the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident will discuss and review the interim reports, once it had also received a report from Israel. The Israeli Commission to examine the maritime incident of 31 May 2010 continues its proceedings which are now at an advanced stage”…

Also, on Lebanon:
(12) “The Secretary-General expressed his support for the work of the Special Tribunal stressing that it is independent, with a clear mandate from the Security Council, through its resolutions 1664 (2006) and 1757 (2007), to uncover the truth and end impunity, and that no one should prejudge the outcome”.

(13) During the past month Israeli air violations took place on an almost daily basis.

Professor Ruth Lapidot, a former legal adviser to Israeli Ministry of Foreign Affairs, is one of — if not the – preeminent Israeli expert on international law [also known as public international law]. Her views are taken extremely seriously in official Israeli circles.

She recently [on 16 June] discussed Israel’s announced naval blockade of Gaza’s maritime space in a meeting with diplomats and journalists at the Jerusalem Center for Public Affairs [run by Israel's former Ambassador Dore Gold.

Some of the more interesting things she said are: Israel has declared a formal naval blockade of Gaza's coastline, in January 2009 [as we have reported here]. The area which is blockaded has to be clearly defined, and there has to be clear notification. The blockade must be applied without discrimination (though limited specific exceptions can be permitted).  Humanitarian assistance must be permitted — but not goods which may increase the war capacity of, in this case, Hamas.  If there is a suspicion that a ship is carrying arms or personnel to , in this case, Hamas, Israel may capture, visit, or search a ship that enters the blockaded zone, and can try to persuade them to leave. But, if a ship tries to run the blockade, there is a clear difference between how it is possible to treat a merchant ship (military force can be used) or a warship (only protests are allowed).

Those who oppose this blockade only say that it’s against international law, without saying why, Professor Lapidot said.

UPDATE: In a just-published interview, Greta Berlin of the Free Gaza movement said that “Israel has no right to stop us under international law UNLESS it wants to admit that it occupies Gaza. Since Israel says it no longer occupies Gaza and Gaza is free, they have no right to stop us. In addition, the blockade is collective punishment against a civilian population that is WAY out of line. International law, Amnesty International and the International Red Cross have all said the same thing. Israel’s blockade is illegal”… This is published here.

Professor Lapidot explained at the JCPA discussion that she believed Gaza is a sui generis entity, a special case. Because Gaza was never annexed by Israel, and because Israel does not control the entire territory of Gaza, she argued, it is not occupied. However, since Israel controls the air and sea space [criteria that many if not most other international law experts say are confirmation of an occupation], it has a special responsibility in case of accidents. She noted that the former Israeli Supreme Court head Justice Barak ruled that Israel also has a moral responsibility because it did previously occupy Gaza for so long.

The entire discussion was videotaped, and it is archived on the JCPA website, where it can be viewed  on the website of the JCPA  here. [Go to Institute for Contemporary Affairs, then on either sidebar click on video archive, then select this event]. Here are some excerpts:

Legal aspects of the problem of the blockade of Gaza:

“The situation between Israel + the Hamas is a situation of armed conflict – this is important because this means that the laws of war apply — which means you may control ships going to Gaza, even on the high seas — you may not do it in the territorial sea of third country… not in Cyprus, but on the high seas in time of conflict.

A blockade means that one state prohibits event the entry and exit of both neutral and enemy ships and airplanes to an area which must be defined.  You have to define very clearly what is this area – where are the borders of this area.

There are some other similar institutions in PIL [Public International Law] – there are also exclusion zones and security zones or war zones or neutral zones — on the sea, in laws of war, during time of conflict.
t
But, it was a blockade that was imposed by Israel on the shores of Gaza

What are the sources of the law on blockades?
Until this very day the rules are still customary international law (no international treaty deals with this problem)
A list of documents that mention blockades:
(1) 1856 Declaration of Paris on the Crimean war – but it has only a very short mention;
(2) 1909 London declaration on naval warfare — much more important, and detailed; there was an intention to codify this, but unfortunately the states that participated did not ratify it: so, this has remained a declaration and is not treaty.
Manuals: San Remo (prepared by an international group of expert), and those of the militaries of the UK, US, and Germany — all these manuals say this is binding customary law.

Concerning war on sea, the world still applies the general principles of laws of war (eg: there is a prohibition of starvation of civilians)

Conditions for legality or validity of a blockade
1.) Notification – it has to be declared and notified as clearly as possible to all those who might be affected (nowadays communications much easier)
2.) Effectiveness – a “paper blockade” is not valid: you have to apply and enforce, otherwise it will not be valid; this is a question of fact, there are no clear legal rules.
3.) You must ensure that you do not cut off access to the high seas of the territorial sea of a third state
4.) Equality – it has to be based on equality, applied to everybody in the same way, not just to some states — including Prime Ministers who might be on any of the ships.
5.)  You must permit the passage of humanitarian assistance. (The San Remo manual of 1994 says that you must permit humanitarian assistance, but state applying must decide where, when, and through which port the humanitarian assistance goes. There is the possibility to require that a neutral organization must control to whom the humanitarian assistance goes — eg ICRC, to see if the humanitarian assistant goes to civilians – or, in the case of Gaza, to Hamas)
6.) You may not starve the civilian population.

What can and may be done to ships trying to run the blockade?
A distinction is made between merchant ships (you have the right to capture, visit, search, and if they resist, you may even attack the ship) and warships (you may try to capture, and try to search but not attack a warship unless it is situation of self-defense)

When can you apply and in what kind of waters?  As soon as it is clear a certain ship intends to break the blockade, you can start to deal with it, even if it is on the high seas.

Precedents (modern – after World War Two):
(1) Korean war 1950-53
(2) Bangladesh – 1973, applied by India
(3) Iran-Iraq war – blockade on Shatt al-Arab
(4) There was also a blockade in the 2006 war between Israel and “the terrorists” in Lebanon (nevertheless Israel did give a safe passage between Lebanon and Cyprus for humanitarian assistance.)
[During the 2008 war between Russian and Georgia, there was some discussion - but it was not a real blockade, only a search of ships on the high seas, to look for contraband.]

Excerpts from the Question and Answer segment of the discussion at JCPA:

Q: States are reluctant, prefer to use softer term such as quarantine.  Iran-Iraq war – UNSC resolution prohibits arms therefore blockade and that naval presence in Indian ocean and Red Sea is still there but now to seek out members of al-Qaeda, or carrying weapons

A: Also 1962 quarantine of Cuba – it did not meet all qualifications of blockade

Q: Must a blockade be announced?

A: It has to be announced loudly and clearly to everybody who is involved. Even more, when a ship is trying to get though, you must make sure this specific ship has to have actual knowledge, or presumptive knowledge, of the blockade

Q:  Is Israel in full compliance?

A: Absolutely — I thought it was clear without even mentioning it — all these conditions [are met].  In January 2009, Israel made the notification to the whole world, and therefore we can say that this is a real blockade..

Q: Since the legality of this blockade rests on state of war between Israel and Hamas, doesn’t it mean requiring a full declaration of war?

A: In the past, yes, but nowadays there are wars that break out without declaration. There is no need for a declaration in order for there to be a state of war.  There was a judgment by [Israeli Supreme Court] President Aharon Barak five years ago [after Israel's "unilateral" disengagement] where he explained that the situation [between Israel and Gaza] is so bad that it is a situation of armed conflict.

Q: If it’s so clear, can you explain why do other international experts disagree”

A: This question is very interesting, because they never say why.  They only say that it’s illegal under international law, full stop. They do not say why…

Q: But the boarding was in international water?

A: In time of armed conflict you can search ships even on the high seas…

Q:  Even Israeli newspapers write this: seizing ships in international waters is a violation of international law. Other opinion writers say the laws of war do not apply to Gaza, because it is not a state.

A:  Can Gaza be considered an enemy even though it is not a state? You have things called international conflict.  Also, the laws of war apply to internal conflicts (Common Article 3 of all Geneva Convention gives the minimum that applies). With regard to the status of Gaza is the $64 million dollar question – it was under Ottoman sovereignty 1570-1917, then under Britain till 1948 (Who was sovereign? The most common position is that it was both Britain and the League of Nations0. Then Egypt never annexed, gave Gaza autonomy, but under occupation.   In [1956 and in] 1967, Gaza was occupied by Israel, but not annexed.  I would say it is an area sui generus, which means a special situation — this is the best description, because nobody knows exactly what it is, though others say it is self-governing.

Q: According to UNSC resolution 1860, Gaza is part of Palestinian territory, and that is why is is occupied, not because of “effective control”/

A:  part of other side, under occupation, under its control?  Yes, Gaza is part of Palestinian territory but so far there does not yet exist a Palestinian state, yet. It is a special area which hopefully one day will be part of a Palestinian state.

Q: Part of the notion of assigning a legal status is exactly what negotiations have been about…

A  In both 1993 and 1995 it was agreed that there would be negotiations, but so far negotiations have failed. The Road Map of 2003 specifically says Palestinian state should be established by agreement with Israel.

Q: Can you please explain again the difference in treatment accorded to a merchant ship + a war ship [attempting to break a blockade]

A:  When you see a ship is trying to go to Gaza you can stop it to see what’s going on and to persuade – but if a merchant ship continues you can attack it. If it is a warship, you can only protest…

Q: Whole notion of naval blockade is linked to this notion of sending humanitarian goods to the Gaza Strip “under seige”. What is Israel’s responsibility to this sui generus entity that has two entrances and exits – one via Israel and one via Egypt.

A: Absolutely right there are two ways  There is also the 2005 agreement to send goods through Egypt – so the idea was both Israeli and Rafah crossings should be open to the Palestinians.  There is a very interesting Supreme Court judgment on electricity [n.b. - this was handed down on 28 January 2008 in a case brought by GISHA] – that since the 2005 evacuation, Israel has no responsibility to supply, because in particular there is also Egypt — but because has been in control of Gaza for so many years, Israel has a moral responsibility to help the people of Gaza get what they need for their daily lives.

Q: Is the EU participating in the siege [on the land crossings into Gaza]?

A:  There is no siege now, because Gaza is getting a lot of goods from Israel. Now, even cement goes in (but via the port of Ashdod and with control by independent group to ensure aid goes to civilians, not Hamas). Let me remind you that even during the war of 2008, the border open every day for 1.5 hours…We shouldn’t forget the good things Israel has done.

Q: If Israel had allowed any of the ships in the Flotilla to go it, what would have happened to blockade?

A: The state that applies the blockade can make exceptions. But if all ships are allowed in, then there is no blockade.  But if the state imposing blockade gives certain ships special selected permission — or if ship is in distress — it is ok.  But it should not be the rule, exceptions should not be permanent … Israel may control any ships if there is a suspicion they carry goods which may increase the war capacity of Hamas — the suspicion they are carrying arms or personnel to help Hamas. I think other materials may not justify intervention against the ships. Not all goods justify this search — there must be a real suspicion.  And not all ships on high seas, without any reason…
…
Q: If Gaza is a sui generis territory, what does it mean if it is occupied?

A:  … Gaza’s status is, again, undecided. Some say if Israeli still in control of air space or sea, or territory, then it is occupying. Other opinions say that according to the Hague 1907 regulations – an occupier is only occupier if it controls the whole territory. And Israel does not control the whole territory of Gaza. In my opinion, Israel is not in control of Gaza, therefore we are the occupier, but in the areas it controls [air and sea of Gaza] there Israel is responsible (if there is an accident, eg) … In my opinion, the distinction is between full control of territory, or only part of it.
…
Justice Barak said there is an international conflict and not an internal conflict with Gaza, because it is not part of Israel.  Gaza has never been annexed by Israel, neither has the West Bank …
…
Q:  So, customary international law says that after a search of merchant boat, or there is attempt to capture it –  and it continues — at what point can it be attacked and sunk if it carries civilians or civilian goods?

A.  The idea is to get control of the ship and not to drown it…”

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This entire discussion can be viewed on the JCPA website here. [Go to Institute for Contemporary Affairs, then on either sidebar click on video archive, then select this event.]