Role of Arab Legal Experts in the Protection

of Islamic and Christian Holy Sites in Palestine

By : Mr. Chawqi At-Tabeeb(*)

I would like to start by expressing my joy and pride at finding myself once again amongst my brothers in the noble land of Jordan, and extending my heartfelt thanks to the organizers of this Conference for the warm welcome and the excellent organisation.

I also avail myself of this opportunity to bow in reverence and prayer for the souls of our martyrs in the usurped Palestine and bleeding Iraq, and to pray in memory of the leader, President Yasser Arafat, who departed this world a few days ago. I salute the brave Palestinian resistance and the extraordinary and inspiring steadfastness and fortitude of Iraq in the face of the American and Israeli war machines that have exceeded all limits in their crimes. Unfortunately, this steadfastness is today met with an indifferent international public opinion rendered insensitive by the daily reports on martyrs and victims. We hardly ever hear about our Islamic and Christian holy sites in the occupied territories or the systematic destruction and distortion they are subjected to by the Israeli authorities.

In the face of such a bitter reality, the importance of organising this Conference on the protection of holy sites in Palestine emerges as vital as an event that lays down the cornerstone of our support, as Arab governments and civil society, for our central cause : Palestine.

It goes without saying that the Arab-Israeli conflict is a protracted civilisational war being fought on several fronts, including the military, political, legal and media fronts. While we may have lost several battles on the military and political fronts, we are in the process of achieving important victories in terms of legal and media terms, thanks to the positive shift in the international public opinion perception, particularly in the West, of the Palestinian issue attributed to the efforts of the organisations of the Arab and Muslim societies. Thus, we are witnessing the mobilisation of thousands of peace and justice lovers who decry the Zionist crimes and demand the protection of the Palestinian people against the perpetrators of these crimes. Similarly, the streets of the main Western capitals and cities of the West have filled up with protestors marching in awesome unprecedented numbers. This would not have been possible had it not been for the distinguished role that these organisations play, supported by the media at an age where the picture has become the most dangerous weapon.

At a second level, the enlargement of the scope of intervention of international criminal law, as a result of the amendments brought by a number of countries to their national legislation, making it possible to try war criminals irrespective of their nationalities, the dates of their crimes or the immunities they might enjoy, has opened the door wide open for us Arabs to witness the trial of the Zionist war criminals who have since 1948 committed the most horrendous crimes of genocide, exile, torture and demolition of public facilities and holy sites against the Palestinians and in a number of Arab countries. Then, came the decision to legislate the international criminal law by virtue of the Rome Convention of 1989, and the international criminal court for the trial of the war criminals in Rwanda, Burundi and Yugoslavia; to make it clear once and for all the time of immunity is gone for ever.

Lawyers in Belgium and Britain, as well as in several Arab countries, filed complaints against a number of Zionist war criminals such as Ariel Sharon, the mastermind and executioner of the Sabra and Shatilla massacres, and his minister of defence, Mofaz. These legal actions forced the former to refuse setting foot in Belgium, and the latter to sneak out of Britain in the dark.

There is little need to go into the legal intricacies and details of these files, but no matter what their results were, they have become important victories for our just cause at the legal and media fronts, and it is in our benefit to capitalise on the political significance of these victories, and to consecrate and consolidate them.

This is where the importance of the organisation of this Conference lies. The aim of such an event is to provide an opportunity for the meetings of government representatives and the Arab legal and human rights organisations active in supporting the struggle of our people in Palestine, in order to set up a co-ordination framework for their initiatives in protecting our Islamic and Christian holy sites in the occupied territories.

All these facts and the new juncture only heighten the responsibility of Arab legal experts and the role they are expected to play from their privileged position in the efforts to protect Arab sanctities in Palestine.

We need but cite the following facts to grasp the importance of the role they can play from their position on the international scene :

Their belonging as groups to many legal profession unions and associations (lawyers, magistrates… etc),

Their belonging as individuals or organisations to many national, regional and international human rights organisations, and

Their privileged position as individuals or organisation in influencing public opinion and the national, regional and international media.

With regard to the theme of this conference, their position within several international organisations is of a dual importance because these organisations are largely made up of Muslims and Christians who have a concern for the future of Islamic and Christian holy sites in Palestine.

I was asked by the organisers to give a presentation on the role of Arab advocates in the effort to protect our sanctities in Palestine. The nature of this theme warrants a division of the presentation into two main axes :

In the first one I will deal with a few technical and legal matters relevant to the legal status of the Palestinian territories and the holy sites they shelter as seen by international law which is the reference par excellence in our discourse and our strategy as lawyers, to expose Israeli practices and protect our holy sites (Part One).

The second axis deals in detail with a number of practical proposals and recommendations put forth to the Conference for analysis and discussion (Part Two).

Part One : Legal Status of Palestinian Lands and Holy Sites

The organisers of this Conference seem to have been conscious of the importance of the legal aspect of the theme of their conference, and they have therefore devoted a whole axis to it which they entrusted to my colleagues Dr. Taj Eddine Al Husseini and Dr. Izzat Jeradat.

Therefore, I will not go into further detail about this axis. I shall limit myself to recalling that the Palestinian territories occupied immediately after the 1967 war were considered under international law as occupied lands as this term was defined in the United Nations resolutions and the General Assembly Rules of Procedure on the topic. On another level, the constant state of tension prevailing in these regions as a result of the policies of the Israeli war machine and the struggle activities, make them zones of armed conflict or war zones. As such they automatically fall under the Geneva Convention of 1949 and the appendix determining the treatment of civilians and territories under foreign occupation.

As for the Islamic and Christian holy sites, it is important to clarify that they have a legal status and that they fall in the category of monuments or places of worship that benefit from a special status and exceptional legal protection, guaranteed by the Geneva and the Hague Convention of 1906.

It is of equal importance in this regard to try, in the legal discourse adopted in our plans, to unify this discourse and base it on clearly defined references to avoid confusion and to immunise it against refutation.

Our discourse and our references must be based on the following :

-The provisions of the United Nations Charter

-The principles of international political, criminal and human law.

- Relevant intentional resolutions

- The principles of the Universal Declaration of Human Rights

- The religious and ethical values and the spirit of human cultures and civilisations.

Light must also be shed on the crimes perpetrated against our holy sites by cataloguing these crimes in a legal way and adopting commonly used terminology known to all human rights organisations in the world and inspired from international law. These can be :

- Theft and smuggling of archaeological objects

- Destruction and desecration of heritage

- Faking and imitation of historical objects

- The Israeli occupation forces’ crimes in Palestine (failure to provide protection, demolition of monumental sites, illegal trade in historical objects).

Part Two : Proposals and Recommendations

- The most important of all these recommendations and proposals in my opinion is the establishment of a legal framework consisting of personalities from the human rights organisations in the Arab world, other personalities known for their legal expertise and community work, and the officials in charge of the protection of holy sites in Palestine, to fine-tune the action plan on the human rights front.

- Encouraging international human rights organisations to denounce the Zionist authorities’ decision to annex Al Quds Al Sharif and to consider it the unified capital of Israel ; calling upon the international community to bring pressure to bear on Israel for the  implementation of the United Nations Security Council and General Assembly resolutions calling for the withdrawal of Israeli forces from Al Quds, and declaring all Zionists decisions taken in this regard null and void by virtue of the Geneva Convention.

- Persevering in the efforts initiated by ISESCO and the Arab Organisation of Young Lawyers in March 2003 with regard to the creation of an international observatory of Zionist and Israeli crimes. Some of the most important tasks of this observatory would be to monitor Israeli war crimes and the developments unfolding in the Palestinian territories as a result of the Israeli hostile practices, to carry out comprehensive and detailed documentation of the Israeli and Zionist crimes against the Palestinian people and its sanctities, to train human rights and media experts in documenting these crimes  and to link in this regard with the relevant international and regional human rights organisations and institutions.

- It is worth noting that this ambitious programme has recently obtained the blessing and support of the Conference of Culture and Information Ministers of Islamic countries and of Arab countries.

- Setting up a research unit made up of Arab human rights experts and archaeologists to study and document the city of Al Quds Al Sharif, monitoring all new publications either in the Arab world or outside it, and refuting all allegations and lies circulated in this regard.

- Calling upon the Arab League and the Organisation of the Islamic Conference to urge UNESCO to implement its 1982 decision calling for the registration of Al Quds as a threatened universal heritage. This decision was taken by UNESCO at the request of the government of Jordan and after approval of the Security Council.

- Organising specialised training sessions to address the urgent need of Arab and Palestinian lawyers, the media, and human rights activists to acquire the skills necessary for monitoring and documenting the Israeli war crimes against civilians and holy sites. The aim of these training sessions would be to create an organised network devoted to recording Israeli violations in accordance with the internationally recognised standards of criminal evidence.

The overall objective of organising these training sessions is :

- To enable the participating lawyers and media personalities to monitor, document and catalogue Israeli violations of sanctities. This goal can be achieved thanks to a number of secondary objectives :

- A general explanation of the international law on human rights, war crimes, crimes against humanity, genocides.

- A presentation of the International Criminal Court (composition, tasks, mechanisms for taking action).

- The study of cases of war crimes committed against holy sites in Palestine (threats to Al Aqsa mosque, dangers of the Separation Wall).

- Building the capacities of monitoring and documenting violations of international law on human rights.

- Training for the acquisition of skills in evidence gathering and interrogation of the victims and witnesses of these violations.

The crimes subject of study in these sessions would be :

- The bombing of residential areas and the destruction of public and private property.

- The bulldozing and demolition of land, houses and property.

- The settlements and the practices of settlers.

- Build up a detailed database on all the monuments and holy sites located in Palestine, including those previously usurped, to facilitate their recovery and prevent doing illegal business in them.

- Dispatching joint delegations of Arab and foreign human rights experts and archaeologists to Palestine to visit monuments and holy sites for the purpose of cataloguing them and drawing up reports on the current condition of each one of them.

- Launching an Arab and international campaign to reveal the dangers of the Separation Wall that the Israeli occupation forces continue to build around the 618 Palestinian monuments.

- Co-ordinating and emphasising the importance of the Hague and Geneva Conventions on the protection of historical property during armed conflicts to ensure that the legal measures necessary for their protection are taken.

- Ensuring the co-ordination of Arab positions within international organisations, particularly UNESCO, and revitalising the 1972 conventions guaranteeing the rights of countries to recover usurped monuments.

- Activating all the decisions issued by the General Federation of Arab Archaeologists, particularly those related to Arab historical sites in the occupied Palestinian territories.

- Exploring the possibility of resorting to the International Criminal Court to protect holy sites in Palestine.

- The statutes of the International Criminal Court were adopted at the Diplomatic Conference held in Rome, Italy, in July 1998. The final votes were split between : 120 for the adoption, 7 against it, and 21 abstentions.

- Possibilities for legal action :

In my opinion, legal action is possible within the framework of the International Criminal Court which became operational in July 2002 after the quorum of signatory countries (60 countries) was reached, and the ratification of the 1989 Rome Convention by virtue of which the tribunal was created. However, it is necessary to clarify the following points :

- In terms of procedure, it is impossible to include the Israeli crimes committed before July 2002, in accordance with Article 11 of the Statute of the International Criminal Court which stipulates the non-admission of crimes perpetrated prior to the entry into force of its provisions.

- Israel did not ratify the law creating the tribunal and therefore it is not bound as a state to adhere to the Tribunal’s rulings nor appear before this body. However, Israel’s failure to ratify the convention does not preclude the possibility of prosecuting its citizens and bringing them before the court for the heinous crimes attributed to them. All parties in a conflict are requested to comply with the requests for legal services rendered to the court, and to take all the necessary measures to enable the court to effectively discharge its duties.

Therefore, and in accordance with the provisions of Article 25 of the Court’s statute, stipulating that the trial of any person appearing before it shall be conducted with regard to the individual’s personal criminal liability, it becomes possible to bring Israeli citizens or officials before this court for trial.

- It is also necessary to clarify that the principle of immunity attached to the official capacities of Israeli officials is not applicable within the court in accordance with the court’s rules of procedure, namely Article 27 which stipulates that immunity and the set of exceptional procedural regulations governing the official capacity of the person by virtue of domestic or international laws, cannot prevent the court from exercising its prerogatives over this person.

With regard to lodging the complaint, it is possible, in theory, for the General Prosecutor of the International Criminal Court to launch the lawsuit in response to a complaint that may be lodged by a country that is signatory to the Convention, such as Jordan, in line with the provisions of Article 14, by an international non-governmental organisation, or even by regional Arab or Palestinian human rights organisations (Para 2 of Article 14). However, this hypothesis remains a mere theory in the light of the current political situation and the skewed imbalance of powers. But the importance of addressing it reveals how important the legal aspect is and what it necessitates pending a better future.

(*) Lawyer, member of the National Bar Association of Tunisia and Honorary president of the Arab Organisation of Young Lawyers.