Oireachtas Joint and Select Committees

Thursday, 31 March 2022

Joint Oireachtas Committee on Foreign Affairs and Trade, and Defence

Report of UN Special Rapporteur on Israel's Conduct of its Occupation of the Palestinian Territory: Discussion

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I welcome Professor S. Michael Lynk, UN special rapporteur on the human rights situation in the Palestinian territory, to discuss his latest and, I understand, final report as special rapporteur to the UN Human Rights Council. I also welcome H. E. Dr. Jilan Wahba Abdalmajid, Palestine's ambassador to Ireland, who is in the Public Gallery. We will hear Professor Lynk's opening statement followed by a discussion and questions from members of the committee. I ask members to be concise in their questions and to ask questions rather than give long speeches to allow all members the opportunity to participate. There will be a second opportunity for members to come back if they so desire. I ask all witnesses, members and those in the public gallery to ensure their mobile phones are switched off or aeroplane mode is engaged as the signal can cause difficulties for sound and the recording of the proceedings for the Debates Office.

Witnesses are also reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of a person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with such direction.

Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members that they are only allowed participate remotely in this meeting if they are physically located on the Leinster House complex. I now call on Professor Lynk to make his opening statement.

Professor S. Michael Lynk:

I am deeply honoured to be invited to make a presentation to the committee today with respect to my work as the UN special rapporteur on the human rights situation in the occupied Palestinian territory and more specifically on my latest, and final, report as special rapporteur, which I delivered last week to the UN Human Rights Council.

I will take a minute to explain my role within the UN. Special rapporteurs are human rights experts who are appointed by the Human Rights Council for a six-year non-renewable term. We are part of what are called UN special procedures. We are not paid for our work and many of us are university academics with specialties in our areas of appointment. We are autonomous from the council and while we work within our specific mandates, we are free to explore themes that we choose ourselves and free to come to our own conclusions and recommendations in the reports that we deliver to the UN. Kofi Annan, the former Secretary General of the UN, called special procedures the "crown jewel" of the UN human rights system.

Before I explain my role and report, may I say that Ireland and its policy towards the Israeli occupation of Palestine have been a shining north star in the EU and the west. I commend the resolution adopted by the Dáil last May with regard to de facto annexation and salute the principled stance Ireland and its Government have taken in support of Palestinian civil society in general and the defence it has offered to the six Palestinian organisations that were designated as terrorist organisations by the Israeli Government last October, with very thin evidence to support this alarming claim. I acknowledge the fact that Ireland, in its statement to the UN Security Council in February, specifically stated that the Israeli occupation has become illegal, which makes it among the very first European countries to officially adopt this stance as part of its foreign policy. I am aware that this committee has discussed the topic of Palestine on a number of occasions and produced a well-regarded report last summer on home demolitions and displacement in the occupied Palestinian territory.

I am completing my six-year term as special rapporteur for the occupied Palestinian territory at the end of April. The past six years while I have served as special rapporteur have been momentous with regards of developments in the occupied Palestinian territory. Alas most of these developments have been disheartening and an affront to our international human rights standards. There have been several periods of intense and destructive violence with great loss of life and property against the Palestinians under occupation by the Israeli military, particularly in Gaza during the Great March of Return in 2018 and the short explosive war on Gaza in May 2021. The Israeli occupation, which is in its 55th year with no end in sight, has become ever more entrenched and repressive. In terms of Palestinian deaths at the hands of the Israeli military, 2021 was the deadliest year since 2014. The instances of settler violence towards Palestinians in 2021 was the highest level of recorded attacks since statistics were first assembled in 2012. The demolition of Palestinian homes by the Israeli military has also been spiking continuously upwards. We must also recognise and condemn the deaths of innocent Israel civilians during this period. Too much bloodshed on all sides of this occupation have been shed.

In 2014, when the last serious peace process efforts under the then US Secretary of State John Kerry collapsed, there were 370,000 Israeli settlers living in the West Bank. Today, there are close to 480,000 settlers, which is an increase of 23%. Add to that the 230,000 Jewish Israeli settlers in Jerusalem and there are now 710,000 Israeli settlers, over 10% of the Israeli Jewish population, living in occupied territory in settlements that the UN Security Council has declared to be a "flagrant violation under

international law".

In terms of Palestinian civil society and international human rights observers, the news is equally discouraging. In October 2021, Israel designated six Palestinian civil society organisations as terrorist organisations and has not rescinded this attack notwithstanding the consistent statements from member states and international donors that Israel has not presented persuasive evidence to back up any of its claims. As well, Israel has refused to renew the visas of a number of international staff officers working in the occupied Palestinian territory for the Office of the High Commission for Human Rights, thereby forcing them out of the country. This unjustified interference with the legitimate work of the UN are actions not worthy of a democracy or a UN member state.

The dedicated theme of my 12th report as special rapporteur addresses the question as to whether Israel's acquisitive and repressive practices over the course of its 55-year-old regime have curdled from an endless occupation into something darker, harsher and more ominous. In recent years and months, distinguished voices have concluded that the inexorable facts of Israel’s occupation - the relentless land confiscation, the ever-expanding Jewish-only settlements, the dual legal system, the vast gap in living conditions between Israeli settlers and the Palestinians living among them, the vast separation in political rights, the use of torture, home demolitions, collective punishment and the depleted Palestinian economy – have amounted to, or resemble, apartheid. Former UN Secretary General Ban Ki-Moon wrote in 2021 that Israel’s "structural domination and oppression of the Palestinian people through indefinite occupation arguably constitutes apartheid." Nobel laureate Desmond Tutu stated in 2014 "I know first-hand that Israel has created an apartheid reality within its borders and through its occupation." South African Foreign Minister Naledi Pandor spoke in 2022 about her country's "significant dismay at the continued apartheid practices of Israel against the

long-suffering people of Palestine" and perhaps most revealing, the former Attorney General of Israel Michael Ben-Yair wrote last month in an Irish publication:

Israel's ongoing domination over these territories is a gross injustice that must be urgently rectified. It is with great sadness that I must also conclude that my country has sunk to such political and moral depths that it is now an apartheid regime. It is time for the international community to recognise this reality as well.

He continues:

You simply cannot be a liberal democracy if you operate apartheid over another people. It is a contradiction in terms because Israel's entire society is complicit in this unjust reality.

My report asks whether this 55-year-old occupation has become indistinguishable from apartheid. Applying the accepted three-part test taken from the 1973 UN Convention against apartheid, and the 1998 Rome Statute of the International Criminal Court, I concluded in my report from last week that the political system of entrenched rule in the occupied Palestinian territory satisfies the prevailing evidentiary standard for the existence of apartheid.

First, an institutionalised regime of systematic racial oppression and discrimination has been established. Israeli Jews and Palestinian Arabs in East Jerusalem and the West Bank live their lives under a single regime which differentiates its distribution of rights and benefits on the basis of national and ethnic identity and which ensures the supremacy of one group over, and to the detriment of, the other. The differences in living conditions and citizenship rights and benefits are stark, deeply discriminatory and maintained through systematic and institutionalised oppression.

Second, this system of alien rule has been established with the intent of maintaining the domination of one racial-national-ethnic group over another. Israeli political leaders, past and present, have repeatedly stated they intend to retain control over all of the occupied territory to enlarge the blocks of land for present and future Jewish settlement while confining the Palestinians to barricaded population reserves. Under this particular system, the freedoms of one group are inextricably bound up in the subjugation of the other.

Third, the imposition of this system of institutionalised discrimination with the intent of permanent domination has been built upon the regular practice of inhumane acts: arbitrary and extra-judicial killings; torture; the violent deaths of children; the denial of fundamental human rights; a fundamentally flawed military court system and the lack of criminal due process; arbitrary detention; collective punishment; and the desperate living conditions in barricaded Gaza. The repetition of these acts over long periods of time and their endorsement by the Knesset and the Israeli judicial system indicate they are not the result of random and isolated acts but integral to Israel's system of rule.

This is apartheid. It does not have some of the same features as practised in southern Africa before the mid-1990s. In particular, much of what has been called “petit apartheid” is not present. On the other hand, there are pitiless features of Israel's apartness rule in the occupied Palestinian territory that were not practised in southern Africa, such as segregated highways, high walls and extensive checkpoints, a barricaded population, missile strikes and tank shelling of a civilian population, and the abandonment of the Palestinians' social welfare to the international community. With the eyes of the international community wide open, Israel has imposed upon Palestine an apartheid reality in a post-apartheid world.

I want to address one of the most important and neglected issues dealing with the Israeli occupation of Palestine: the remarkable unwillingness of the international community to impose any accountability measures on Israel for its forever occupation, which has been conducted both in absolute defiance of international law and with the eyes of the international community wide open. The UN Security Council has adopted more than 30 resolutions in the past 50 years critical of Israel and the occupation. The General Assembly and the Human Rights Council have adopted hundreds more resolutions. According to international law, the Israeli settlements are illegal. Annexation is illegal. The denial of Palestinian self-determination is illegal. Human rights abuses are rife. The Fourth Geneva Convention applies in full and has been honoured in its absence. None of these countless resolutions have been obeyed by Israel and nothing has been imposed on Israel to bring it into compliance with the rules-based international order.

When the international community allows a member state permission to go rogue, it is going rogue itself. I would not be here in front of the committee today presenting my recent report on how an unrelenting occupation has metastasized into apartheid if the international community had taken its own laws seriously 40 years ago or even 30 years ago when the Security Council and the General Assembly began to adopt the first of their many resolutions critical of the Israeli occupation. International law is not meant to be an umbrella that folds up at the first hint of rain. Had the international community accompanied these resolutions with resolute accountability and consistency decades ago, in the same way it is doing today with great urgency in respect of the invasion and occupation of Ukraine, then we would have likely already had a just and durable resolution to the question of Palestine and no one would have to be talking about apartheid today in the Palestinian territories.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank Professor Lynk. I read his report last night and it makes for absolutely grim reading. I thank him for his presentation. I apologise for our Chair who is indisposed today. I am standing in for him. He sends his apologies. I will open the meeting to colleagues who I am sure have questions to ask. I ask them to keep their questions succinct and short and not to make long speeches, although I know people want to comment as well.

Photo of John BradyJohn Brady (Wicklow, Sinn Fein)
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Professor Lynk is more than welcome to the committee. I commend him on the work he has done, not only in compiling this report but over the past six years and for his many reports. His work is highly commendable. He will be a loss. I know his term is for six years and his mandate expires next month. I wish him well. I hope and know it will not be the last we see or hear from him.

The findings of this report, unfortunately, echo the findings of many reports that have been published recently. These include the Amnesty International report. Its representatives were before this committee speaking on its report which had similar findings. There are also reports from Human Rights Watch, Al-Haq and B'Tslem, all with similar findings that the policies Israel operates and perpetrates on the Palestinian people and the Palestinian lands is apartheid.

Professor Lynk's report deals with legalities, definitions and what apartheid actually means. Apartheid is a violation of public international law, a grave violation of human rights and a crime against humanity under international law. The report should have enough evidence for the international community to sit up and listen and take heed of what is being said. The definition of apartheid is the systematic, prolonged and discriminatory treatment by one racial group of another racial group with the intent to control, segregate, oppress and dominate them. Unfortunately, Professor Lynk's report and all the other reports based on evidence come to the natural conclusion, which is what Palestinians have been saying for decades, that the oppression, occupation and annexation is now apartheid.

The evidence is prevalent and clear for everyone to see.

I have a number of questions to ask of Professor Lynk. In his opening statement, he mentioned that Kofi Annan had described the special procedures as the crown jewel of the human rights system. The professor might explain his work in compiling this report and the work he has undertaken in the past six years in gathering the evidence he has presented. He might expand on his visits to the occupied territories and the Gaza Strip. He might also outline his communications with the occupying forces and the assistance they gave him in compiling this report.

The professor's opening statement also dealt with the designation of the six Palestinian civil society and human rights groups. Even in the worst days of apartheid, the South Africans did not go as far as banning human rights or civil society groups. What are the professor's views on the designation of those civil society and human rights groups as terrorist entities? As I see it, this is an attempt to turn out the spotlight that is being shone on the apartheid policies and the brutality of the actions of the illegal occupation being perpetrated by Israel. Why does the professor think Israel has now moved to ban such organisations?

The professor might also touch on the policies we see being put into practice by the Israelis in the West Bank. We know there are now 169 enclaves of disconnected land. There are segregated roads to which only Israelis have access. We know that for Palestinians to travel from one of these enclaves to another, they must go through many Israeli military checkpoints. The professor might give evidence about that issue and what it means to be a Palestinian in the occupied territories and living in one of these enclaves. How do they go about their lives? What are the barriers facing Palestinians living under occupation?

The professor also mentioned the statement made by the Irish ambassador to the UN, which is important. The professor said that was the first time the term "illegal occupation" has been used. What is the significance and importance of that? We know about the occupation, annexation and apartheid. I hope the position of the Irish Government is that it is an illegal occupation. I imagine that is the Government position but we have yet to hear the Minister for Foreign Affairs, or any Government member, using that particular wording. What is the significance and importance of the ambassador's use of that phrase?

The Amnesty International and Human Rights Watch reports, and the professor's report, adopted evidence-based approaches to all of the investigations that have been carried out into apartheid, based on the yardstick of international human rights law and humanitarian law. That being the case, does the professor believe those who refuse to use the term "apartheid" and refuse to acknowledge that reality could be accused of being negligent, at best, or perhaps even culpable as a result of their denials or inaction? I note in the professor's statement there is criticism of the international community for the many resolutions that have been adopted, not just by the Security Council but also by the General Assembly, and the failure to follow up with action to ensure those resolutions mean something. Ireland was the first EU country to declare the land grab, the illegal settlements in the occupied Palestinian territories, as annexation. Does that mean anything without the actions to follow through and hold Israel to account? Does that inaction mean the international community is culpable in the apartheid reality in which the Palestinian people are living?

We sit here and consider the three different frames for how we arrive at the issue of apartheid. Last night in the Palestinian territories was similar to many nights that preceded it. Two Palestinian teenagers were shot dead in their homes. Two Palestinian brothers were shot in the legs following an Israeli raid on their shop. I am conscious that as we sit here, Palestinians are still suffering. Palestinians homes are still being demolished. Palestinian schools are also being demolished. Irish aid we give to the Palestinian people is being disrupted, destroyed and demolished. What will it take, in the professor's mind, to force the international community to take action now to tackle head on the crime against humanity that is apartheid?

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I counted approximately six questions in the Deputy's contribution if Professor Lynk could go through them as succinctly as he can.

Professor S. Michael Lynk:

I also counted six questions. The first related to the comment of Kofi Annan which I quoted. The Deputy asked how I gather my evidence. What I did not say, and I am sorry if I left any mistaken impression, is that I am not allowed into the occupied Palestinian territory or Israel, nor were two of my immediate predecessors as special rapporteur. It is the policy of Israel to ignore this mandate and not to co-operate. I am not the only UN position holder or body with which Israel does not co-operate. I went to Amman in Jordan once a year, until Covid-19 hit, and received the UN officials and Palestinian and Israeli civil society and human rights activists who would come to meet me there. When Covid hit, my dealings with those organisations were primarily by remote meetings on Zoom.

Plan A, the most desirable situation, would allow me to go to the occupied Palestinian territory to witness what is going on, to see the growth of the settlements and the expropriation of the land, to meet families whose homes have been demolished and to meet families whose members have been imprisoned or put into administrative detention. I do have experience in the occupied Palestinian territory. I worked for a period of time in the late 1980s for the United Nations in Jerusalem on refugee and human rights issues. If I am not allowed into the territories as special rapporteur, then plan B is to rely upon the excellent documentation that comes from civil society and human rights organisations. This is the best documented conflict of the modern world. It is not the best reported but it is the best documented.

Therefore, I have a wealth of information arising from a range of relationships that I have developed, as well as from the quality of our reporting by Palestinian, Israeli and international human rights organisations, with respect to that. That is basically how I acquire my evidence with respect to the reports that I deliver. While I wish I had plan A, I think plan B has worked fairly well for the reports that I have written.

Photo of John BradyJohn Brady (Wicklow, Sinn Fein)
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Just on that point, while Professor Lynk should not have to ask for permission, has he, as the special rapporteur, asked for permission to go into Palestinian lands? Has he asked the Israeli authorities for access?

Professor S. Michael Lynk:

Yes, every year in the spring when I am planning my summer trip to the region, we write a letter to the Israeli permanent mission in Geneva. Every year there is silence; nothing, nada, crickets. Nothing comes back with respect to that. They have never responded to any of the requests for the ability to travel. I am not the only special rapporteur to whom that happens. North Korea does not allow the rapporteur in there. Myanmar does not either. However, other special rapporteurs are allowed into the countries they monitor. Most special rapporteurs who have global mandates are permitted by those countries to visit the countries and to report as favourably, or as critically, as they so wish.

The Deputy’s second question has to do with the six Palestinian civil society organisations. In October they were designated as terrorist organisations by the Israeli Minister of Defence, Benny Gantz. That designation is still hanging like a sword of Damocles. Israel has on two separate occasions assembled a range of documents that it have presented, primarily in Europe. This has been to try to persuade member states with whom it has good relationships that these organisations are beyond the pale, that one should not be funding them and that their work is integrally tied up with terrorism and with terrorist attacks. The response to both batches of information by virtually every country that has received this, has been that Israel’s evidence is thin, that it is unconvincing, that it is not compelling, that the countries will not change their relationship with these organisations and that they will not stop the funding on the basis of the information that Israel has presented.

Last week, when I was in Geneva, I met with the director of Al-Haq. If Israel had meant to finally impose the designation, he would not be able to travel. If that designation ever did come to fruition, it would mean the instant banning of these organisations, the possible arrest and trial in military courts of the staff and the leadership of these organisations, as well as the probable freezing of all their funds. Because most of the funds have to reach the organisations through some form of operation with the Israeli banking system, no funds could ever be transferred from Europe, from North America or from wherever else they would come to these organisations.

If that happened, it would cripple Palestinian civil society. These organisations primarily focus their work on the occupation and on analysis of what they consider to be the gross violations associated with it. Some of these organisations also do examinations with expected Palestinian leadership. In any society in the world, there cannot be a strong, vibrant, democratic exchange of ideas in the way in Ireland and Canada are used to, if there is not a strong civil society.

For years there have been reports, including one of my early ones, that talk about this shrinking space for Palestinian, but also Israeli, civil society organisations that work on the occupation. This is a matter of defence of their right to be able to do this work. I think there are four Irish citizens who act as special rapporteurs. Many members will know the name Mary Lawlor, who is the special rapporteur on the situation of human rights defenders. She has been sterling in her defence of the right of these Palestinian organisations to exist, to thrive and to make their reports as critical as possible. That is one of Ireland’s gifts to the broader world.

The Deputy’s third question had to do with the 169 enclaves of Palestinian land that are separated from each other in the West Bank. If I can extend the Deputy’s question, these Palestinians in the West Bank are separated from each other. They are also separated from the 360,000 Palestinians living in East Jerusalem by the separation wall. They are separated from the 2.1 million Palestinians living in Gaza. There is no other comparable situation in the modern world that I can think of - if members of the committee can think of one let me know - where a population is so divided and is so strategically fragmented by a ruling power in order to keep them separate from one another.

James Wolfensohn was the president of the World Bank in the late 1990s and in the early 2000s. After he retired from the World Bank, he was appointed by the Quartet to be its special envoy in Jerusalem. He said that there is no such thing as an operating economy where there is no freedom of individual and commercial movement. He said that with specific reference to the Palestinian territory. This strategic fragmentation, aside from the miracles of Zoom or virtual connection, means that Palestinians are increasingly not knowing each other, because they are separated from each other. I have mentioned the separations within the Palestinian territory. It also means that Palestinians are separated from one another with respect to the 1.6 million Palestinians living as Israeli citizens, as well as with respect to the 5 million to 10 million Palestinians who are living abroad, outside of Palestine and outside of the region itself. This is not by accident. This is not an incidental aspect of the occupation. This has to be a grounding strategy to keep the Palestinians apart from one another so that their society will decay and their ability to develop strategic, political direction will also decay.

The fourth thing the Deputy has raised is the issue of illegal occupation. I thank him for that. While all of his questions are very good, I am really glad that he has raised that particular position. I mentioned in my opening remarks that was used by the Irish ambassador in late February in her remarks to the United Nations Security Council. I point the Deputy to page 47 the joint committee’s report from July 2021. One of its recommendations, which I want to speak about for a minute, is that Ireland would support an International Court of Justice opinion on the illegality of the prolonged occupation and de facto annexation of the occupied Palestinian territory. I had not realised that until today. Again, I say an additional, “Thank you” to Ireland with respect to that.

In one of my early reports, I think it was my third or fourth report back in 2017, I laid out the case and the argument that the Israeli occupation has now become illegal. Most of the world thinks of Israeli occupation as lawful, albeit with some illegal aspects to it, via these settlements, to the annexation, to the wall and so on. Since I released this report in the fall of 2017, I have been pushing for the United Nations General Assembly to adopt a resolution to seek a new advisory opinion to the International Court of Justice in The Hague. This is in order to pose the question as to whether Israel's occupation has now become illegal. Additionally, if it has become illegal, what legal consequences flow from that? This will be one of the activities I will continue beyond the end of my mandate, in a private capacity. I will try to see if we can gather bright international law thinkers and a coalition of the willing, who would lobby and push for this resolution to pass the General Assembly and then be put to the International Court of Justice.

If the International Court of Justice were to find that the occupation was illegal, it would substantially raise the stakes for the international community to break out of its political and diplomatic stupor and begin imposing the kinds of accountability measure that are needed and are indispensable to changing the tables on what is happening.

In light of the evidence in last year's report and what the Irish ambassador has said, I hope that Ireland sees itself as one of the leaders in Europe and, indeed, the world in pushing this forward. This would be a tremendous advancement in diplomacy and a great mark that Ireland could leave in its remaining eight months on the Security Council.

The Deputy's fifth point had to do with the Amnesty report, the human rights report and my report. He stated that they were all evidenced based and grounded in law, particularly international law. He asked me whether those who refused to use the word "apartheid" were negligent. I believe there is a compelling case to call this apartheid. These reports have made that case. I have simply piggybacked on them in terms of their analysis and evidence finding. I hope that this accumulation of reports, which were issued within a two-year period, will change minds and that people will find it more difficult to avoid using the term.

I will make a confession that I have made several times this week in Ireland. When I began my job six years ago, I said that I would not use the word "apartheid" because it would put people off and I would not be able to talk to diplomats or political decision makers. For many reasons, and two compelling ones in particular, I was driven to this and I finally decided about a year ago that either my 11th report or my 12th and last report would have to address this question. The first and foremost reason is that this occupation is being built with concrete, not wood. International law demands that it be temporary and built with wood, yet there is nothing to indicate that it is being built with anything but reinforced steel and concrete. It is meant to be permanent. If there is to be a permanent occupation of the land, it means a permanent division of rights between those of your own people and those of the people you have to wind up subjugating. If the committee can find for me a better word in the English language than "apartheid" to describe this, I will use it, but I have thought about this and cannot find one.

The second compelling reason is that, all of a sudden, the avalanche of reports from Palestinian, Israeli and international human rights organisations that the Deputy cited as well as people with esteem and respect in the world – the Desmond Tutus and Ban Ki-moons of the world – are now using this term. Who am I to say that it cannot be used? Let us think of the distance and time. I was one year into my mandate – it was the spring or summer of 2017 – when the UN Economic and Social Commission for Western Asia, based in Beirut, commissioned and released a report on apartheid written by one of my predecessors, Professor Richard Falk, and an American professor, Professor Virginia Tilley. That report was probably up on the UN website for a total of 48 hours before – I have to say this with regret – the UN Secretary-General ordered that it be taken down. Five years later, my report is up and is staying up. It has been widely read and widely cited in the weeks since its release. This in itself shows that there is a different climate of opinion around this issue. Let us hope that that continues. Regarding those who the Deputy says are not using the word yet, let us hope that this avalanche of evidence and legal reasoning will be an incentive for them to use it.

Regarding the Deputy's sixth and final comment, this is something that has to be at the top of the agenda. I do not know if he used this word, but the word I am using is "accountability". Accountability is missing. We are discussing a 55-year-old occupation imposed by a country with a population of a little more than 9 million people on 5 million other people and where Europe is the leading trading partner, with 40% of Israeli exports going to Europe. Europe has so much power in this respect. If Europe and the wider world can impose upon Russia, which is a country of 140 million people and a major nuclear quasi-superpower, crippling sanctions and accountability measures - beginning in 2014 and with much more ferocity now - over an invasion and violations of international law, why can that not be done in respect of Israel? Israelis of conscience raise this issue constantly. Nothing is going to change and break this "paradise" feeling unless and until the international community steps in with vigour and courage to get Israel to bring this situation into compliance with international law.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Professor Lynk has covered the six questions. I thank him. I now call Senator O'Reilly.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Professor Lynk will probably have answered my questions by 2.45 p.m., but in case he has not and is still mid-stream, I hope he will not misinterpret my leaving then.

Professor S. Michael Lynk:

I understand.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I do not want my getting up in the middle of his answers to seem like bad manners, but I will have to leave. I do not believe that situation will arise, though.

Professor S. Michael Lynk:

Is the Senator trying to get me to keep my answers short?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I am not. I am just saying that I will have to leave.

I welcome Professor Lynk and thank him for his presentation. I have heard him speak at another forum. He makes a lucid presentation. People watching this meeting online should be cognisant of the fact that, apart from being a respected professor and academic, he is a UN-designated rapporteur. People should understand that this is not something whimsical that he took on as a personal project. He is the official UN rapporteur. That gives extra weight to what he says and should make us conscious of his comments. We should also be cognisant of how what he says tallies with our committee's report, which he kindly alluded to, and the recent Amnesty report. All of that has to be factored in.

I wish to ask Professor Lynk some questions. An issue arose in our report and has arisen again recently. The figures around the illegal settlements are stark. I will cite some from his report, which states that there have been 300 Jewish-only illegal civilian settlements since the occupation began and that 700,000 Israeli Jewish settlers are now living in East Jerusalem and the West Bank and apart from 3 million Palestinians. In Gaza, which is a physically small area, there are 2 million Palestinians. The report also quotes a former UK Prime Minister. This backdrop is worth citing. An issue that arose when our committee was working on its report was that the nature of the settlements was almost calculated to make it difficult to achieve our ambition of a two-state solution. Does Professor Lynk believe that to be the case? If a two-state solution is no longer achievable because of the nature of the settlements, what does he suggest can be done? Would he suggest resettlements or other structures? Now that the settlements are dotted throughout the occupied territories, it makes the creation of a two-state solution more difficult.

Professor Lynk used the term "apartheid", as did the Amnesty report, if I recall correctly. He rationalised that on three bases. Can he posit reasons for this not being accepted terminology for governments and internationally?

Why does Professor Lynk think officialdom does not interpret it that way? Does he think it is political pressure in America or whatever? Is it a question that there is a lacuna in the level of convincing of external sources?

I will mention a very concerning issue. We are all very anxious to state that there is not a scintilla of anti-Semitism in anything we present or say. There is not one of us who does not have an extraordinary consciousness of the horror, suffering and barbarism that was experienced by the Jewish people, notably at the time of the Second World War and immediately before but right through the ages at times. We are conscious of that. That guilt and remembrance is a big issue for us all collectively who want something done about what is wrong in the occupied territories. That consciousness and guilt is a residual issue that very good people are affected by. In fact, I would say colleagues of mine and all of us here, who are very good individuals, are affected because they live with the memory, horror and recognition.

Could Professor Lynk suggest anything to overcome that? Does he think that is getting more contextualised now? One thing I always attend if I am available is International Holocaust Remembrance Day. The point I am trying to make is whether we can get ourselves to a point where that is put in context, understood and recognised by every remotely human individual or sensitive person. The parallel with that, however, is that two wrongs do not make a right and we need to deal with the occupied territories.

Professor Lynk cited the former Attorney General of Israel making an article in the Irish newspapers. The obvious greatest catalyst, as we are trying to achieve in Russia at the moment, would be internal pressure, if it could be arrived at, to get change. Obviously, there is a moral duty and an imperative we cannot avoid for us, the UN and all bodies to deal with this as an international community. Does Professor Lynk see anything bubbling up apart from the NGOs he cited, which are important? Are they gaining more traction? Is there any sign of internal opposition within Israel that would be the ultimate catalyst in getting a solution? That is an interesting question.

I would like Professor Lynk to comment on something that occurred to me in recent days. I feel very strongly about this issue and it is important. Anyone who is on this committee is on it because he or she is concerned about issues like this one. This is one is very serious. Wonderful international solidarity has been exercised by the UN and the EU against the barbaric, illegal and wrong activities of Russia in Ukraine now. There may come a degree post conflict and ultimately, please God, we hope we will live in a post-conflict world sooner rather than later, when maybe there will be confidence and solidarity in the world and we will start to move on to other areas of injustice. This is a glaring area. Does Professor Lynk think there is potential there? Is that wishful thinking? There might be potential for confidence in the world and a sort of almost policing role by international bodies, which will be enhanced if we are successful on this occasion. Those are the thoughts of the committee. There is no point nor is it helpful that I start chronicling the issues now. We know them but this is to get Professor Lynk's response to those issues. Again, I welcome him. We cannot discuss this tragic situation often enough at this committee.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank Senator Joe O'Reilly. I think there are five or six questions for Professor Lynk.

Professor S. Michael Lynk:

I counted five. The Chairman is doing a good job.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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We are doing okay. The Professor might please try to go through them as succinctly as he can.

Professor S. Michael Lynk:

I will try to be succinct because I know other questions are coming as well. The first question has to do with settlements. If I understood the gist of the Senator's question, he asked in what way the settlements, of which there are 300 Israeli settlements with 700,000 plus settlers, stand in the way of a two-state solution and what the prospects are of a two-state solution. I could easily say that this has pretty much obliterated the possibility of a two-state solution. One of the worst things that can continue to happen is for those who pay attention to the Middle East and Israel and Palestine to continue to issue the rote statement that we want to do everything we can to preserve a two-state solution and get the parties back to the negotiating table. If people are willing to continue to wave a cardboard wand or sword at Israel thinking that will be enough to stop the settlements and preserve the land the Palestinians and the world thought was going to be the land base for a genuine Palestinian state, then I am afraid we are engaged in self-deception with respect to this.

The settlements are the engine of the occupation. They are there for two reasons. One is to be able to establish the demographic facts on the ground to be able to create an illegitimate and unlawful sovereign claim for Israel to say this is its land and it is planting its flag on it. The second reason is to be able to ensure there is no Palestinian state or if there is, it is a statelet that defies every definition-----

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Not to interrupt but how do we deal with that?

Professor S. Michael Lynk:

I will get to that when I answer the Senator's question on accountability. I want to make it clear that a number of people have said there is no path to a two-state solution any more. In 2013, as he was about to launch his then unsuccessful peace initiative, Mr. John Kerry, the then US Secretary of State, told the American Congress that the window for a two-state solution was only one year or two years, or it was over. That was nine years ago. UN Security Council Resolution 2334 in 2016 stated that Israel's settlement activities were "dangerously imperilling the viability of the two-State solution based on the 1967 lines". The European Union has stated that the situation has devolved into "a one-state reality of unequal rights". My final quote is again from Mr. Ban Ki-moon, who wrote in 2021 that "Israel has pursued a policy of incremental de facto annexation in the territories it has occupied since 1967, to the point where the prospect of a two-state solution has all but vanished". I may be repeating myself but I think most speakers and responsible commentators who look at this with no blinkers on are coming to the same conclusion with respect to this.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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What does Professor Lynk posit as an alternative then?

Professor S. Michael Lynk:

Think of what the alternatives are. I think there are probably four that are here. One is that there is a genuine two-state solution, which means removing all or almost all of the Israeli settlements. Israel had a political nervous breakdown when it removed 8,000 Israeli settlers from Gaza in 2005. The possibilities of wanting to remove 700,000 or a vast bulk of those 700,000 Israeli settlers is minimal.

A second solution would be what I would call a state-and-a-half solution, which is what the Trump plan was. A little rump area of land in the middle of the West Bank where the major Palestinian cities are would be given to the Palestinians, all the rest of East Jerusalem and the West Bank would be annexed to Israel and Gaza would be left in its orphan state of 2 million people of a surplus population. A third solution is one apartheid state, if you like, from the river to the sea, which is actually what I am now proclaiming has happened.

It does not matter, and this was made clear in the resolution from the Dáil last year, whether there is a formal declaration of sovereignty over the land between the Jordan and the Mediterranean or it is continued de factoannexation. Let me be clear as a lawyer - de factoannexation is just as illegal in international law as de jureannexation. It is, in fact, a continuation of what it is now, without even the pretence of saying the Palestinians will have a state. They may have municipal powers to collect garbage in Ramallah, to look after the streetlights in Hebron and to have a sewer line in Jenin, but that is all they will have.

The last solution would be a one-state, democratic, one-person-one-vote solution. With the demographic parity between Israelis and Palestinians, the population today is 6.9 million Israeli Jews and 6.9 million Palestinian Arabs. I do not know if many of the members know of Professor Avi Shlaim, an Israeli-Anglo professor of history who is now retired from the University of Oxford. He said he believed in a two-state solution for a long time when it was possible. He says he no longer believes in that because he is not going to tell himself fairy tales. He asked what could be more consistent with 21st century values than a state that is democratic, believes in human rights and believes in the equality of everybody in the population. What a one-state democratic solution would offer would be much more consistent with what I believe the world is moving towards in this century than any of the other solutions.

For a long time I believed that a two-state solution would be the best. It would work because it would separate the populations and Palestinians would have a majority state where they would be able to rule. However, Israel, its settlements and its encroachment have made a two-state solution impossible, unless one starts removing 500,000 to 700,000 Israeli Jews from settlements that have been established. If one looks across the Israeli political spectrum from the centre through to the far right, two thirds of the seats in the 120-seat Knesset are controlled by parties that do not say there should be a Palestinian state. It is not in their programme. There have been four elections in Israel in the past two and a half years and the future of a Palestinian state was not part of any of the debates in any of the four elections, so I so not see that occurring.

The Senator asked a very timely question about anti-Semitism and the Holocaust, and it is an eternally timely question. I will try to keep my answers short on this. There are two different, separate lessons one can draw from the Holocaust. One is that the brutality of the murder of 6 million European Jews means never again to Jews, or it can mean a more universal lesson of never again to anybody with respect to gross violations of human rights. My view is that the best tribute we can pay to the victims of the Holocaust and all the victims of the Second World War and what happened afterwards is to enforce and entrench a regime of human rights everywhere in the world. Professor Edward Said, the famous Palestinian-American, once said the Palestinians are the victims of the victims. That is one of the most apt ways I can think of to describe that situation. Jews in general, but Israeli Jews in particular, many of them coming from families that escaped the Holocaust, bear deep wounds, but Palestinians bear deep wounds as well. Any type of compassionate peace that we will reach has to recognise addressing the deep wounds that both have, but also make sure that the final resolution is on the basis not of subjugation or domination but on the basis of some form of creative equality.

The fourth question has to do with accountability and I believe the Senator is asking me what we should be doing in this respect. Israel will not change its position. Perhaps I am repeating the answer I gave to the question from Deputy Brady in this regard. International accountability is the prerequisite to get moving on change here. There is no such thing as a diplomatic magic sauce that is going to bring a genuine durable solution that is acceptable to the Palestinians and the Israelis without pressure on Israel. As long as Israel does not feel the cost of maintaining this type of occupation and as long as it faces no diplomatic cost, no trade cost or economic cost, I am afraid it is not going to be moving its policies with respect to this.

The International Committee of the Red Cross, the guardian of the four Geneva Conventions and a relatively conservative international organisation, has created a long list of acceptable sanctions and accountability measures that have long precedent in the world over the last 70 years to be applied to countries or organisations that step outside the international legal order. If it can come up with sanctions such as limitations to or ends of arms sales, limitations to or ends with respect to trade deals and other forms of sanctioning of countries diplomatically or economically and those are acceptable methods in the modern world, they are acceptable in a method with respect to Israel. I have heard the argument often used to me or anybody else that what we are really doing by raising these is attempting to delegitimise Israel, the only Jewish state. What I and Israelis of conscience are trying to do is delegitimise an illegal occupation and to be able to bring about equality between them.

The final point the Senator raised, which is again a very good question, has to do with Ukraine. The fact that we are now talking about international law, the breaches of international law and the swiftness with which we impose accountability measures on a country going rogue gives hope with regard to Israel and Palestine and that we will begin to make the necessary parallels between the two. I am torn in that respect. I have been around long enough to know that, in a positive way, George H. W. Bush in 1991, after the end of the first Iraq war and the removal of Iraq from Kuwait following its invasion and occupation, moved immediately to address the issue of Israel and Palestine by creating the Madrid process, which led to the Oslo process. Sometimes turning points in history can wind up meaning something positive. At least there was a formal recognition of the question of Palestine and the start of a peace process, however flawed. However, I am also old enough and around long enough to know that sometimes history comes to a turning point and does not turn. I would not be surprised if a year from now, if we have some type of resolution in respect of Russia and Ukraine, we have forgotten about the Palestinians again, unless and until something dramatic and awful happens again there. That is why we need to keep the issue of accountability in mind.

I thank the Senator for his questions. They were bang on.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I thank Professor Lynk for his answers.

Photo of Seán HaugheySeán Haughey (Dublin Bay North, Fianna Fail)
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I am not a member of the committee so I thank the Chair for allowing me to participate. I am substituting for Deputy Cowen.

I thank Professor Lynk for attending today and for his comprehensive presentation and, indeed, for his presentations during the week while he is in Ireland. I also thank him for his supportive comments about Ireland's actions, particularly with regard to the Dáil resolution, the de factoannexation, the NGOs being declared illegal and so forth. That is much appreciated. Our actions to date have been commented on and that is good to know. I accept Professor Lynk's definition of apartheid and his finding regarding apartheid. He quoted a number of sources in respect of the definition of apartheid, but it is absolutely clear for anybody who wishes to know that Israel is practising apartheid in the occupied Palestinian territories.

Most of the questions I had intended to ask have already been posed. I will zone in on one or two, however. I am sorry if Professor Lynk has answered my first question but perhaps I did not hear the answer.

Why has the international community, in particular the European Union, not acted to date regarding this matter? Ireland has joined with some EU member states to make different declarations and so on, and initiate various actions, but why has the EU not been stronger on this question? If Professor Lynk wants, he can mention individual member states that may be holding up progress in that regard. He has answered the question of what the international community should do; he mentioned the International Court of Justice and the question of sanctions. Can anything else be done? Are sanctions the main accountability measure that can be taken in this regard? Professor Lynk answered the question about the two-state solution and stated that we have gone beyond the point of no return. That is quite stark and certainly something that I will take on board arising from what he said, and what he quoted others as saying, regarding this matter. He mentioned the four solutions and where we go from here.

On the basis it has not been asked - it may be the elephant in the room - what role has the US Administration to play in this regard? Is that a problem, traditionally, regarding Palestine? Has there been a significant change in emphasis following the election of President Biden? In an earlier presentation this week, Professor Lynk ended on a hopeful note. He quoted Seamus Heaney's "hope and history rhyme". Is he still of that view later in the week? Do we have reasons to be hopeful at all regarding these matters?

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Some of those questions have been answered, but if Professor Lynk wants to quickly allude to them that is fine.

Professor S. Michael Lynk:

I will. I recognise the importance of time to the committee. The Deputy has asked me four questions. Why has the international community, particularly the EU, not acted with more resolve in defending the rules-based international order? A lot of it has to do with the United States, quite frankly. Europe bows or pays tribute to the United States by stating it will allow the US to take the lead on this. As a result, we do not see a lot of sunlight between what the US does and what Europe winds up doing in respect of it. I wish there was more independence, more imaginative diplomacy and more courage from the Europeans to separate themselves from the Unites States regarding policy towards Israel and Palestine. The EU has brought in some small, tapered measures, especially as regards differential policies, that make sure the money it sends to Israel as part of various cultural or economic agreements does not go to the occupied Palestinian territories for the support of Israeli settlements. However, it has barely begun putting labelling onto settlement goods, which is one of the tiniest of measures of retribution with respect to that.

Kofi Annan, in his 2012 memoir, Interventions, which I highly recommend to anybody, stated it is the excessive possessiveness of the United States - I believe those are his exact words - that has deterred the Security Council and the international community from taking the kinds of steps required to try to bring a successful resolution to Israel-Palestine, specifically to the Israeli 55-year-long occupation of Palestine. That is agreed upon by a number of commentators. If committee members looked at last year's op-ed by Ban Ki-moon, they will see he stated the same thing regarding the role of the US being that of retarding the ability to find a just and final solution consistent with the UN.

The Deputy asked what else can be done regarding accountability measures. I state in the recommendations in several of my recent reports that it is important for international states, and I again particularly push this on Ireland, to be supportive of the ongoing investigations at the International Criminal Court in The Hague. It is one of the few effective accountability measures currently in place. Since the Palestinians joined the court in January 2015, backdated to June 2014, they have raised allegations of war crimes and crimes against humanity contrary to the Rome Statute, with respect to the wars in Gaza in 2014, 2018 and 2021. Of course, they have also complained about the settlements, which are defined in the Rome Statute, and in Irish law when that statute was incorporated into it, as a war crime. Legally speaking, that is very low-hanging fruit. It is important for Ireland to be clear, consistent and regular in stating that it supports the ICC investigation of this, and that it hopes as the investigation goes on to the third and final stage, there will be litigation and trials with respect to this.

I would like to see Ireland state clearly that it supports the continuation of the UN database concerning businesses that have dealings in the occupied territories with Israeli corporations or with the settlements. The settlement economy could not be nearly as successful as it is, if it was not for the regular international relationships it has formed with a number of international and Israeli companies in order to be able to lubricate itself. If we start putting sand in the machinery that supports the Israeli settlement economy, it suddenly becomes much more costly for Israel to maintain its defiance of the international community. As I said, if a new advisory opinion is going to the International Court of Justice, it would be wonderful for Ireland not only to support that but to be one of the leaders in seeking the support of the General Assembly and, if it reaches the International Court of Justice, to take a position and enter an argument with respect to that.

The Deputy asked me about the Biden Administration. The Trump Administration that preceded it took four or five step backwards on the American position towards Israel and Palestine. The Biden Administration has walked back two or three of those steps. To its credit, it restored funding to the United Nations Relief and Works Agency for Palestine Refugees in the Near East, UNRWA, and reopened a relationship of sorts with the Palestinian National Authority, but the latter's office in Washington is not yet open. The Americans have not reopened the consulate in East Jerusalem closed by the Trump Administration. The Biden Administration has not undone the recognition by the Trump Administration of the illegal annexation of the Golan Heights by Israel. It has not undone the moving of the American Embassy to Jerusalem. For any close observer, it is clear there is no desire by the Biden Administration to launch any kind of peace process on its watch. Its major issue with respect to the Middle East is keeping its relationships with Israel and Saudi Arabia firm and ensuring that a new nuclear weapons control agreement is reached with Iran. If Israel is able to keep the situation in the occupied Palestinian territories quiet, the US will not disturb this continued growth of settlements and the deepening entrenchment of the occupation.

Photo of Sorca ClarkeSorca Clarke (Longford-Westmeath, Sinn Fein)
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I thank Professor Lynk for his time and for sharing his experience and expertise with the committee. It is most welcome. His report makes for very difficult and very disturbing reading. However, his report does not do that in isolation. We have had other contributors before the committee, and other reports and opening statements, that have been equally disturbing. I will focus on one aspect of this issue, which is in his very final recommendation. I will keep this very brief and will not go over what other contributors have said.

It is No. 62. It is the very last sentence:

The Special Rapporteur recommends that the United Nations re-establish the Special Committee Against Apartheid to investigate any and all practices of systematic discrimination and oppression purportedly amounting to apartheid anywhere in the world, including the occupied Palestinian territory.

Why has Professor Lynk included that clear ask as a final recommendation? How would that committee be re-established? How important is it in addressing the issue in the Palestinian territory today and in ensuring we do not see apartheid become reality in other areas under occupation?

Professor S. Michael Lynk:

In some ways, that very articulate question has provided part of the answer. I made that recommendation in my last report. It has also been a call of civil society. Palestinian civil society and Israeli civil society have asked for this. I believe it was a recommendation of both the Human Rights Watch report and the Amnesty International report. I claim no originality with respect to this, as long as the Deputy does not accuse me of plagiarism.

It was important to join these other reports and add this because the word "apartheid" to many people is an historical term. It is thought we now find it only in the history books on southern Africa. We have lost understanding of its definition, of how it can be practised and that it is not limited to southern Africa. When the international community created the Rome Statute of 1998, it was a forward-looking document. It was four years past the collapse of apartheid South Africa. It was meant to apply in a forward-looking way anywhere apartheid winded up existing in the world. The UN committee against apartheid had been around since the 1960s or 1970s and closed shop in the early or mid-1990s with the end of the final settler colonies in southern Africa that practised it.

To re-establish the committee would show the world's commitment to the recognition that apartheid can and, in at least one situation, does exist in the 21st century. The committee, like the occupied territories Bill, may have the Palestinian occupied territories in mind as a lead example, but it is not the only example of where goods coming from occupied territories, or illegally coming from civilian settlements therein, can exist. That is one of the beauties of the occupied territories Bill and it is the same thing with respect to the committee against apartheid.

The committee should be re-established and one of its features would be looking at the allegation that apartheid exists in the occupied Palestinian territories but it could look elsewhere as well. I am not in a position to say in detail or with confidence where else it may exist but, if these ugly features of history can re-emerge to our surprise in the 21st century, it is possible that they exist elsewhere as well. It is putting a stamp on the international community's expression of abhorrence that this still exists in the 21st century. That is why it is important and should have a global mandate, and not simply on the OPT.

Photo of Frances BlackFrances Black (Independent)
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I thank Professor Lynk for his concise presentation on his report. It is a powerful and harrowing report. In his presentation, he said it is time for the international community to recognise apartheid. As he said that, I was wondering how many reports we need from phenomenally brilliant organisations, wonderful politicians and attorney generals and from Professor Lynk saying this is an apartheid regime for the international community to accept it.

What is Professor Lynk's opinion of the occupied territories Bill? That Bill was brought in to have consequences for the illegal settlements and what is going on over there. It is simple and nothing major in the sense it is just banning goods from the illegal settlements because the law is being broken. End of story. Unfortunately, we have been told Ireland cannot lead on this unilaterally and that the whole European Union has to get behind it.

In the 1980s we had the same discussion. The Attorney General said it could not be done and was illegal. There was a change of government, the Labour Party came into government, appointed a different Attorney General and then it was legal. We have had many opinions from top eminent lawyers and judges. Our ex-Attorney General, Senator McDowell, has written an opinion saying this can be done and is legal. What is Professor Lynk's opinion, as a lawyer, on Ireland leading on this going forward?

Professor S. Michael Lynk:

The Senator will see an exercise in deflection, I am afraid, because I do not claim expertise with respect to EU trade law. The way in which the EU operates as a legal system is very different from what I know and teach in respect of Canadian constitutional law. I will not offer an opinion on this. I would like to see it referred, as a legal and political matter, to find some way to end this stand-off. If both sides are sincere in saying they believe in their respective opinion, either that Ireland can do this by itself, or cannot do it unless in conjunction with the European Union, then there must be a way for political creativity to be used to find an independent legal decision-maker to offer a comprehensive decision, whether "Yea" or "Nay", on these competing legal opinions. The situation is unsatisfactory to me as an outside special rapporteur on such an important question on which Ireland has led in many other ways.

I thought when the occupied territories Bill was first introduced that it was a brilliant step forward in imposing accountability on a largely unaccountable occupation. It has been taken through ten of the 12 steps in order to become law. Those remaining couple of steps are preventing it having the impact of law. I do not think the occupation would fall the day after Ireland passed that, but it would set a wonderful example for the rest of the world. I will not stretch the committee's politeness in having me here by commenting on things Irish because I am commenting on its impact on the world. Surely there must be a way for minds operating in good faith to find some kind of dispute resolution that would give a definitive opinion in a process both sides would agree to abide by.

I have raised whether the European court could do it. I understand it cannot unless or until the legislation is passed. Maybe, as a compromise, the legislation could be passed and everybody could agree to have it tested as to jurisdiction. Is there another way within either of the Irish courts that this could be put as a reference or advisory question? Please try to break this logjam. If it is not in Irish competence to do it, then everybody knows they have to put their emphasis on Strasbourg and Brussels. The value of passing a Bill like this would be a beacon to the rest of the world. There is active discussion on a Bill modelled after the drafting in Ireland by the new Government in Chile. Since Ireland pioneered it, I would love to see the Irish being first across the finish line with this and beckoning others to follow them across.

Photo of Frances BlackFrances Black (Independent)
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I thank Professor Lynk for that great response. I will touch on illegal occupation, which he mentioned earlier.

I commend our ambassador on having used that term recently. I accept that Professor Lynk is asking a question about whether the legal occupation has become illegal. If the resolution passes and thereby, as he said, raises the stakes, what will be the ideal outcome? How will it raise the stakes and how will it help?

Professor S. Michael Lynk:

Assuming the General Assembly adopts a resolution by a majority vote to send a specific question or questions to be posed to the International Court of Justice on, first, whether the occupation has now become illegal under international law, and if so, what legal consequences flow from that, we have a wonderful example from 50-some years ago with respect to Namibia. Those of us who are old enough to remember all this will recall the League of Nations gave South Africa a mandate to govern Namibia until it reached a certain stage of civilisation. Following the Second World War, after the League of Nations became the United Nations, South Africa began to introduce apartheid in Namibia and to treat Namibia as annexed territory, viewing it as its fifth province. Two African countries that were in 1945 original members of the General Assembly, namely, Ethiopia and Liberia, brought a series of questions and advisory opinions from the General Assembly or Security Council to the International Court of Justice asking whether South Africa's continued rule as a mandate holder over Namibia was now illegal under international law. The very clear answer, in one of the most determinative decisions ever issued by the International Court of Justice, was "Yes”. In fact, the court used the term "illegal occupation" with respect to South Africa over Namibia.

That raised the stakes, although, of course, it took a further 19 years for Namibia to gain independence. I do not think it would take that long if there were a declarative decision on an advisory opinion coming from the International Court of Justice in this context. It would shine a harsher spotlight on Israel and its activities. I do not doubt this will be difficult or that the United States will not be firmly opposed to having this issue litigated before the International Court of Justice. Indeed, I do not doubt there would not be leadership from many European countries with respect to the matter. Nevertheless, if there were leadership from countries such as Ireland, that would mean a great deal.

As for what would be the impact, it would indicate that the occupation was illegal and that Israel no longer had any claim on any part of the occupied Palestinian territory. It would become both a legal tool to use elsewhere and a campaign tool for civil society in its engagement with diplomatic and political leaders on this issue. How could they continue to have a relationship of business where the occupation has been deemed to be illegal?

Photo of Frances BlackFrances Black (Independent)
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How important is it for Ireland to lead on that? Could a country such as ours lead on it?

Professor S. Michael Lynk:

Yes, Ireland could lead on it. Many countries have an outsized reputation and punch above their weight, Ireland being one of them. Ireland could find allies in Europe and the European community, while Europe could find allies such as Jordan, particularly with respect to Namibia and South Africa, which, as I know from my conversations with their leaders, would be supportive of this kind of thing. There could be a coalition of the moral and willing to lead on this. We need more Irelands in the world, and this is something I think would bring the end of this occupation and of the state of apartheid that much closer.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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I thank Professor Lynk for his contribution. I might follow on from a few of my colleagues' questions. Deputy Clarke referred to recommendation no. 62 of the special rapporteur’s report. In seeking to re-establish the special committee against apartheid, does Ireland have a special window of opportunity to focus on that, given our position on the UN Security Council, and should it do so? How important is that position in this context?

I appreciate Professor Lynk did not want to state a view on the legal advice relating to the occupied territories Bill, but one of the main complaints expressed by both me and Senator Black as it was passing through the Seanad related to the fact the Government would not publish that advice. Would it be helpful if it were at least to publish the Attorney General's advice and to allow us to see how the view was formed that there would be illegalities or whatever else in regard to progressing the Bill?

These Houses have passed a motion calling on the Government to recognise the state of Palestine. I am keen to hear what Ireland can do, as a Government and a State, in practical, tangible terms regarding this issue. Given what Professor Lynk said about the two-state solution, how important now is the decision of states and governments throughout the world to recognise the state of Palestine?

Professor S. Michael Lynk:

Recognition of the state of Palestine is politically important. While it has a symbolic measure, it would end up building on the tally of the approximately 135 states that have recognised the state of Palestine, that is, something like two thirds of the membership of the General Assembly, although very few are European states. In fact, the only one I am aware of is Sweden. I spoke to a Swedish diplomat who said Sweden had been told that if it went ahead first, it would crack the ice and other states would follow, but Sweden is still looking back for others to end up following. Recognising the state of Palestine would, of course, be another important political statement with respect to the absolute necessity, insisted on by the world community, of ending this prolonged occupation. Doing so should, therefore, form part of the foreign policy of any country that recognises what is going on in Israel and Palestine.

As for publishing the advice of the Attorney General, my advice, however simplistic, is that one way out of the stalemate could involve putting the issue before a respected, agreed-on legal decision maker. That would require everybody to put forward their best legal arguments, including what the advice of the Attorney General has been. Democracy breathes in sunshine, and this is one kind of issue on which we would want to see the Government putting forward its best argument. While I have been getting my crash course in Irish politics this week, I have not encountered anybody who opposes the self-determination of the Palestinians, or who denies the harsh realities of the occupation or the fact this has become a one-state reality of unequal rights. Nobody I have come across, among either Senators or Deputies, seems to disagree with that. Accordingly, this reluctance strikes me as more of an unnecessary barrier to advancing even further with respect to an enlightened policy that will hasten the end of the occupation and the realisation of self-determination. Releasing the opinion of the Attorney General, if I can speak out of turn, would make perfect sense in order that the best arguments on each side can be properly evaluated.

The Senator asked about the special committee against apartheid. He might remind me of the question.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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The recommendation calls for the United Nations to re-establish that committee. From our perspective on this committee, we will encourage the Government to work to that end. In Professor Lynk's view, does our position on the Security Council, which is time limited, offer us an even greater opportunity to use our diplomatic power, and what is often referred to as "soft power" at the UN, to work towards bringing about the re-establishment of that committee?

Professor S. Michael Lynk:

Certainly, from foreign affairs officials who I have spoken to, I would think that Ireland got on the UN Security Council at the beginning of 2021 in order to be able to make a mark upon the world. Ireland has done a commendable job in the 15 months it has been on the Security Council. There are nine months left. I am sure there is a range of issues that Ireland has put at the top of its to-do list with respect to that, one of which, I know, has to do with Israel and Palestine. There are concrete things that the committee has mentioned around supporting the re-establishment of the committee against apartheid, and all of the other things we spoke about over the past hour or so, that can be in Ireland's basket of goods to do in its position, which probably will not come again for another ten to 15 years. Ireland still has the momentum to be able to strike while the iron is hot for the next nine months and to make a difference during those nine months.

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)
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I thank Professor Lynk for both his presentation and his time. Senator Joe O'Reilly asked the question earlier on, and reference was made to the level of awareness that is bubbling up from society among the Israeli people as to what is happening. As politicians, we note that we reflect our voters. Will Professor Lynk speak to that level of awareness among the general population in Israel about what is happening in Palestine, as he described in his report, which, as I said at the outset, makes for harrowing reading.

The one-state solution that Professor Lynk mentioned, as one of his four alternatives, is quite radical in some ways. I had not really heard this being put forward very strongly previously. Professor Lynk indicated that a two-state solution seems now to not be really possible. How would the special rapporteur see this one democratic State actually working? Would it be acceptable by the Palestinian side? Has it been discussed with them in any shape or form? It looks attractive in theory but we know how difficult this kind of power-sharing can be. There is a lot of hard work involved in that.

Senator Joe O'Reilly also asked about what governments accept "apartheid" as a term? The term is used here in respect of what is happening in the Palestinian territory and so on. Obviously, it was also used in Africa as we know in the past historical context. Does Professor Lynk expect modern governments and other States around the world to think in that way, not just for Palestine but also in other areas that were alluded to earlier on, and which Professor Lynk has not yet studied?

Professor S. Michael Lynk:

On the question of awareness among Israelis, I do not claim to be an expert on Israeli sociology, and particularly Israeli political sociology. I will keep my comments short on that. It is impossible to look at photographs and pictures of the Israeli-Palestinian conflict without coming across pictures of the 18 m wall that the Israelis have built, 85% of which is within occupied Palestinian territory and which was pronounced upon by the International Court of Justice in 2004. That wall not only keeps Palestinians out from being able to enter into Israel, as I have been told by Israeli colleagues and friends, it also keeps out Israeli imagination: they do not need to know what happens on the other side of the wall. "Us here and them there" has become an attitude, but not among all Israelis. There are lots of Israelis of conscience who are bothered deeply by the range of the conflict.

Let us look at the range of Israeli voting over the past four elections. There were four elections between 2019 and 2021. The parties that had a right or far-right agenda polled around two thirds of the seats, and it varied only within a couple of seats with each of these four elections that occurred. While 20% of the Israeli population are Palestinian-Arab citizens of Israel, this voting range tells me that for the Israeli voting population and particularly the Israeli Jewish population they are content with the present situation and endorse the idea of keeping Palestinians in the West Bank isolated. The way in which a significant number of Israelis wind up interacting with Palestinians since the wall was built more than 20 years ago are as military. In other words, in the form of military as soldiers. Virtually most Israelis between the ages of 18 and 21 are conscripted for three years to serve in the Israeli army. It is impossible to be able to be a soldier guarding a checkpoint and deciding to allow one car through every 20 minutes, carrying out night raids on refugee camps or arresting children in Hebron without thinking that the population you are governing and ruling over as a military power are somewhat lesser then you. It is going to take a long time to break down those kinds of impressions that Palestinians have of Israelis, which is defined by the occupation and is incomplete, and the impressions that Israelis have of Palestinians, which is defined by their domination of the Palestinians but which is also incomplete. We have a system that encourages stereotypical views of Jews by Palestinians, and views of Palestinians by Jews.

On the Chairman's comment about the one-state solution, and how it would work, this would be the kind of task that creative constitutional minds would wind up working on. On the positive side we have a number of positive examples of how multinational States have worked with some success. It is not without difficulty. I come from a multinational State that is not only French and English but now also recognises the nationhood of our indigenous peoples. It is not an easy country to govern but we have done it largely through solid democratic institutions that have wound up building trust by everybody, and where there is a sense of accommodation in that regard. Belgians do it, with some difficulty, the Swiss do it with some difficulty, but we can see that it is certainly becoming more catastrophic in multinational countries such as Sri Lanka or India. These are possible, however, and even though there are those who throw their hands up and say it is impossible to have a one-state solution with Israelis and Palestinians, each having a single vote and living as equals, that is in theory a much better starting point than what exists now or even what is proposed around domination.

I am not sure I entirely caught the Chairman's third question. It had to do with apartheid elsewhere.

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)
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What countries recognise apartheid today as existing in the world? Until the special rapporteur's report, it was not official, from any official source that I am aware of, that what is happening in Palestine was deemed official as apartheid, but now it is from the report. Are any other agencies or governments in that same space as Professor Lynk is now?

Professor S. Michael Lynk:

I am not aware of any others right now. That is the short and concise answer in that regard.

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)
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I thank Professor Lynk for his time and for being here, and for dealing with members' questions in such a comprehensive manner. I wish him well into the future. I understand he is finishing up in his current role shortly. I wish him well in whatever role he takes on after that.

Professor S. Michael Lynk:

I thank the Chairman for inviting me. I thank all of the committee members who asked questions. They were thoughtful, generous and to the point. It shows that members had read and are familiar with my materials. I wish the committee good luck in the continuation of its work.

The joint committee adjourned at 3.29 p.m. until 3.15 p.m. on Tuesday, 5 April 2022.