Recognition Palestine as a State Will Be Ending the Palestine-Israel Conflict or It Is a Peace Solution?[1]

-       Vera Wheni S. Soemarwi, S.H., LL.M. –[2]

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I.       Introduction

Recognizing Palestine as a state is a must. Although Palestine has fulfilled all the requirement of statehood, Palestine still cannot award as a state. Why Palestine cannot be a state?

After Indonesia recognizes Palestine as a state, will conflict in Palestine end? What does the international community do in order to end the conflict in Palestine?

Although Israel has breached the Article 1 (2) and 2 (4) of the UN Charter, the UN cannot enforce Israel to fulfil its obligation under the UN Charter. It is clear that Israel should respect the equal rights and self-determination of people of Palestine. Moreover, Israel has failed to refrain its international relations from threat or use of force against the territorial integrity or political independence of Palestine state.[3]  What the UN can do to stop Israel aggression in Palestine? What Indonesia, as a member of International Community must do for Palestine solidarity?

II.     Palestine Recognition as a State

To become an independent state there are qualifications which are: 1) permanent population; 2) a defined territory; 3) government; and d) capacity to enter into relations with the other states.[4] Can Palestine demonstrate the qualification as regulated on the Montevideo Convention 1933? If Palestine can fulfil the qualification as mandated on the Montevideo Convention 1933, what is the problem that Palestine cannot recognise as an international legal personality or a state?  

The fist qualification is permanent population. Palestine has a permanent population. The Palestine population is a settled population. There are two ethnic groups in Palestine considered as settled population that are the Jews, 17% of the population; the Palestine Arabs who comprise 75% of the population; and 8% others[5].

The second qualification is a defined territory. Palestine has a defined territory. The size of a state territory does not matter. Nor do the boundaries have to be defined definitively.[6] Although Palestine has territorial dispute with Israel on the 1948 boundaries, the Israel’s occupation of the land territories – the West Bank, Gaza Strip and East Jerusalem. Furthermore, Israel has been building a wall that they call “security fence”, Israel declared as a self-defence mechanism since Palestinian suicide bombers had attacked the Israel citizens. However, the wall was built at the Palestine territories.[7]

  The third qualification is government. Palestine has a government and it has effective control over the Palestine territory. The Palestine is governed by a Parliamentary Democracy as the Legislative Council (PLC). The current President is Mahmoud Abbas and the Head of Government is Prime Minister, Salam Fayyad. The Palestinian Basic Law, signed by Yasser Arafat in 2002m the current structure of the PNA is based on three separate branches of power: executive, legislative and judiciary. The Palestinian Legislative Council (the PLC) is an elected body of 132 representatives. The Judiciary Branch has to be properly formalized. The President is directly elected by the people. The political parties has 15 political organisations, the famous political organisations are Fatah or Palestinian Liberation Movement and Hamas or Islamic Resistance movement.[8]

The last qualification is independence in external relations. The explanation of external relations means that the government must be sovereign and independent therefore it is no subject to the authority of another state. To be a state, the government has full capacity to enter into relations with other states.[9] In the case of Palestine, it has the effective government and the government has the capacity to enter into the relations with other states, international relations and with the international organisation.

Despite all of the requirements becoming a state under the Montevideo Convention, 1933, there are two theories of recognition, one is declaratory theory and the other is constitutive theory[10]. However in practice, a state claims to be a state should be accorded recognition by a sufficiently large number of states. Although a state has all requirements that regulate on the Montevideo Convention 1933 without accorded recognition from large number of states, the state cannot be awarded as a state for example Kosovo.[11] Palestine has not been admitted as a member of the United Nations; however, Palestine awarded as a permanent observer states at the UN.

What should do in order Palestine to be a state? Palestine should get international recognition from many states. Right now, Sweden has officially recognized Palestine as a state. While the recognition from Britain, Ireland and Spain are symbolic and not binding recognitions.[12] Up until now, 135 countries, the UN State Members, have recognized Palestine as a state including several East European Countries before they joined the EU.[13] By looking on the map, the countries that have not recognized Palestine are Australia, the USA, Europe, Canada, Mexico, Venezuela, Columbia, New Zealand, Japan, and South Korea. The numbers of states that have recognized Palestine as a state have sufficient numbers; however Palestine has not become a state.  

http://www.washingtonpost.com/blogs/worldviews/wp/2014/11/07/map-the-countries-that-recognize-palestine-as-a-state/

III.   Defining the Solution for Israel-Palestine Conflict

Long history of Israel-Palestine conflict is about the occupation of Palestine territory in West Bank and Gaza Strips including East Jerusalem by Israel. International interventions have intervened the conflict; however it has not succeeded yet. General Assembly Resolution 181 (II) (1947) recommended that Palestine should divided into two independent states, one Arab and the other is Jewish. Moreover, it recommended the creation of a special international regime for Jerusalem. However the resolution was never implemented since the Arab Palestine population and the Arab states rejected the resolution.

The Security Council Resolution 242 (1967) adopted by unanimity. The SC Resolution was adopted because Israel forces occupied all the territories of Palestine under the League of Nations mandate, including the West Bank, East Jerusalem (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria). The SC mandated that Israel armed forces should withdraw from the occupied territories since than Israel has taken the status of Jerusalem into the Israel capital city. Security Council has condemned this idea by making Resolution 298 (1971). The Resolution confirmed that all legislative and administrative actions taken by Israel to change the status of Jerusalem were invalided and could not change that status. Those territories have states of an occupying power. Israel continued occupation through military occupation subject to the limitations of the Hague Regulations 1907 (Section III) and the Fourth Geneva Convention.[14]

Despite all international interventions have been intervened the conflict and condemned the Israel occupation on the Palestine territories and other illegal acts of Israel, the Israel aggression is still on-going and could not stop the Israeli military aggression.

Without settling the territorial dispute between Israel, Palestine and neighbouring countries over the territory of West Bank, East Jerusalem (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria), the military conflict is never ended in the territories. To define the territorial of the West Bank, East Jerusalem (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria) should be looked on the history background. The conflict has raised not only the territorial dispute but also the fundamental reasons, for example, the religion.

IV.   International Solidarity for Palestine

The Security Council (SC) should point several negotiators who are accepted by Israel, Palestine and the Arab States. The negotiators should discuss with all parties and collect their demand. The negotiators must write a peace proposal regarding their demand and try to get the better solution for all parties. The result of the negotiation is a binding resolution for all parties.

Following the binding peace resolution, all states that have not recognized Palestine as a state, should recognize Palestine as a state.

In line with those actions, the Security Council should urge Israel to comply with the International Law, especially the Article 1 (2) and 2 (4) of the UN Charter.[15] After the SC remind Israel and Israel refuse to comply the international obligation under the UN Charter, then the SC should initiate publishing the SC Resolution in order to restore and maintain international peace and security.[16] The Resolution may order sanction on military, economic and finance.

Further more, Israel aggression to Palestine people may consider as committing crimes against humanity and it breaches the international concerns. Since crimes against humanity considers as breaking the international customary law; therefore there is a reason for the international community to intervene the conflict and urge the International Criminal Court (ICC) to investigate the conflict. In this case, Indonesia can take part to the international community to condemn the Israel aggression and urge the ICC to investigate the aggression.

V.     Conclusion

Indonesia as one of the State Members of the UN has the international obligation “(T)o achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”[17]

Therefore, Indonesia should recognize Palestine as a state officially and binding recognition. Moreover, Indonesia should initiate the General Assembly to make recommendation that the Security Council must publish peace resolution to solve the Israel-Palestine dispute.[18]   

There are political and historical reasons behind recognizing Palestine as a State. Although as required by the International Law has fulfilled, Palestine still cannot be recognized. Though Palestine has received support from almost 135 states as long as the USA, the UK, France and other European States have not given support to Palestine, it seems difficult for Palestine to be a State. 

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[1] Vera Wheni S. Soemarwi, S.H., LL.M. Pertemuan Di Kemeterian Luar Negeri dalam pembahasan Dukungan RI untuk Palestine, 28 November 2014.

[2] Lecture at the Faculty of Law, Tarumanagara University, NIDN: 0007067007.

[3] Charter of the United Nations (1945), 892 UNTS 119, came in force 24 October 1945, Article 1 (2) “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.” And Article 2 (4) “(A)ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.

[4] Convention on the Rights and Duties of States (Montevideo Convention, 1933), 165 LNTS 19, came in force 26 December 1936, Article 1.

[5] Anonym, Population of Palestine, downloaded from  http://www.mapsofworld.com/palestine/information/population.html on 25 November 2014.

[6] Aust Anthony, Handbook of International Law, Second Edition, Cambridge University Press, Page 16.

[7] Anonym, Land and Settlement Issues, downloaded from https://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-agenda/israel-palestine-and-the-occupied-territories/land-and-settlement-issues.html on 25 November 2014.

[8] Anonym, Palestinian Government, downloaded from http://palestinian.dk/palestine/government/ on 25 November 2014.

[9] Aust, Op Cit, Page 16.

[10] Warbrick in Evans (ed), International Law, 2^nd edition, Oxford, 2006, Page 217-275.

[11] Aust, Op Cit, Page 17, “…Kosovo which announced its independence from Serbia on 17 February 2008, has been recognised by only some sixty states. They include most EU Member States and the United States, but do not include the Cyprus and Spain, which have fears that recognition of Kosovo may encourage parts of their states to declare independence.”

[12] Eichner Itamar, Israel Fears EU Parliament will recognize Palestine, 11 November 2014, downloaded from http://www.ynetnews.com/articles/0,7340,L-4595282,00.html on 25 November 2014.

[13] Anonym, Merkel Against Unilaterally Recognizing Palestine as a State, downloaded from http://www.jpost.com/Arab-Israeli-Conflict/Merkel-against-unilaterally-recognizing-Palestine-as-a-state-382501 on 25 November 2014.

[14] Aust Op Cit, Page 26-27.

[15] Charter, Op Cit, Article 40.

[16] Ibid , Article 39

[17] Ibid, Article 3.

[18] Ibid Article 10.

Castrating Paedophilia -Not Against Their Rights

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     Indonesia has lately faced serious problems concerning the protection of children. International communities have been astonished by the many cases of children being sexually abused and raped by people with sexual disorders, known as paedophilia. The cases which have happened have been spreading in the small and remote villages in Indonesia. What must we do to save children from sexual violation? Examining the cases, the conclusion can be drawn that there is the same pattern that most of the perpetrators either used to be victims of sexual abuse when they were a child and they did not receive psychotherapy and are classified as untreated victims. Or they are clasified as social and emotional maladjusted persons. The perpetrators are closely known by the victims either their close family or their neighbour. The ages of the victims are vary from 5 to 16 years old. It is recorded that the number of the cases and victims are increasing, with 2.386 cases recorded in 2011; 2.637 cases a year later; and in 2013 there were 3.023 recorded cases. For the first four months of 2014, there have been 200 recorded cases excluding Emon’s victims in Sukabumi and the victims at JIS. It is documented by the Commission on Indonesian Children Protection (KPAI). Those numbers should alarm us that children are facing a dangerous situation. The purpose of this article is to demand that our children are better protected by the inclusion of a more comprehensive law that protects children and has harsher laws for the perpetrators of sexual crime against children. Although, Indonesia has the Law on Children Protection,  cases are rising. Since the law does not cover a comprehensive system for child protection and does not give additional punishment for serial paedophilia. The law should be amended to contain additional punishment and special protection programs for children. Further to this point, the law does not include clearly special treatment and protection for children who are the victims of sexual abuse. Although, article 59 of the law regulates special protection for children, the article does not provide a clear process what the government and community should do in cases of sexual abuse. In practice, the government and KPAI do not have programs for prevention. Since they do not know how to prevent, they act in response after they are informed by the media or the victim’s families. Advocation on children’s rights and the monitoring of criminal investigation of suspects are their only programs.

The Universality and Relativism of Human Rights

The principle of the inherent dignity of human beings, equal and inalienable rights which are declared within the preamble of the Universal Declaration of Human Rights have a universal nature of the rights; it is originally adopted from the common values as human beings. As Antonio Cassese writes, there are two characteristics of the UDHR which are the universality of human rights and the consent of its member states. Derivation of those rights has been codified in many human rights treaties and all state parties to those treaties acknowledge a duty to respect the universality of human rights of their citizens in all conditions without exception. However, the universality of human rights has been challenged by the relativism of human rights. Can the relativism override the universality of human rights?

Final International Criminal Law Assignment

I.          Introduction

The global criminal procedure systems are classified into two systems; the adversarial system is called common law and the inquisitorial system is called civil law system. The parties at the trial are the prosecutor, defense, and victim and the parties are adducing their evidence in order to seek the truth.[1] The International Criminal Court as a global criminal court is likely to choose the inquisitorial model. It is challenging for the International Criminal Court to combine the two procedure systems; therefore, victims’ participation in the proceedings of the International Criminal Court (hereinafter referred to as ‘ICC’) gives a positive effect on the rights of the accuse under international human right law. Victims participating in the ICC proceedings are not only balancing evidences and bringing local knowledge to the international views but also ensuring that the rights of victims to receive justice through participation in a fair and public hearing by a competent, independent and impartial tribunal.

International tribunals, for instance, the Special Court for Sierra Leone and ICC, have started to endow enforceable rights and standing to victims.[2] This guarantee of the ICC for victim rights is clearly stated in the second preamble paragraph of the ICC Statute.[3] The victim rights are granted by the ICC, for instance, submitting victims’ views and concerns to the Court.[4] Moreover, victims’ participation has two possibilities; they are able to represent them self or observe the proceedings.[5] Victims are allowed to participate as long as ‘the manner of the victim is not prejudicial to or inconsistent with the rights of the accused in line with a fair and impartial trial’.[6]    

By definition, “victim” can be natural persons or organizations. As a natural person, a victim should have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC while an organization could be considered as a victim if it has sustained direct harm to any of its properties. [7] In determining victim status at the ICC, whether a victim has a legal standing or not, the ICC has to use four criteria[8]; first, ‘… the identity of the applicant as a natural person …; second, ’… a crime within the jurisdiction of the Court’; third, ‘whether the applicant claims to have suffered harm’; and fourth, ‘… harm appears … “as a result” of … a crime within the jurisdiction of the Court.[9] The definition of victims does not mean that the ICC will minimize their participation. It is clear through the appeal decision of the Lubanga case that ICC allows victims to participate at ‘any identified stage of the proceedings’ and they ‘should set out in a discrete written application the nature and the detail of the proposed intervention’.[10]