Social, Economic, and Cultural Rights in Transitional Justice: A Case Study of Food Rights in Palestine?
| Author | Gemma Daly |
1 Social, Economic, and Cultural Justice: A Case Study of Food Rights in Palestine
SOAS LAW JOURNAL VOLUME 4, ISSUE 1
Social, Economic, and Cultural Rights in Transitional Justice:
A Case Study of Food Rights in Palestine
Gemma Daly
This article seeks to use the legal frameworks of international humanitarian law (IHL) and
international human rights law (IHRL) to analyse legal obligations and violations of food rights
in Palestine during and post-occupation. This analysis intentionally builds on critiques
surrounding the relationship between IHL and IHRL, post-occupation obligations, and
emerging concerns of food sovereignty. The author intends to apply existing literature around
socio-economic rights to assess whether a transitional justice approach may provide appropriate
remedies for the violations identified. The author acknowledges the importance of
complementarity between different disciplines and hopes to offer a useful analysis of food issues
in Palestine from a legal perspective.
1. INTRODUCTION
This article analyses social, economic, and cultural rights violations and remedies in an elusive
post-conflict Palestine through a case study of food rights. Generally, I endeavour to further
the discourse that social, economic, and cultural rights are essential to transitional justice
processes, using the issue of food as a paradigm. Specifically, I hope to provide greater legal
clarity on food issues in Palestine and the post-occupation duties of the occupier and emerging
State. I consciously explore these issues amidst a climate of stale peace processes in Palestine
and Israel, maintaining the standpoint that transitional justice considerations can play a
valuable and necessary role in conflict resolution. Whilst my approach may be critiqued as
utopian, I maintain that it is necessary to adequately address violations of international law,
and break from the stagnant frameworks from which the occupation has been debated and
peace agreements failed. The consequences of the Oslo negotiations have demonstrated that
postponing key rights issues is not a productive approach to peace and human rights; I
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SOAS LAW JOURNAL VOLUME 4, ISSUE 1
endeavour to encourage discussion of human rights obligations, violations, and remedies
throughout all stages of the peace-making process.
The scope of this project is necessarily limited and there are certain boundaries that I have had
to impose. Firstly, despite a practical overlap between food, water, land, and other issues in
occupied Palestine, this article is restricted to f ood issues alone. This is because I intend to
build on social, economic and cultural rights which have been secondary in human rights
discourse, and select food as an issue that has established norms in both international
humanitarian law and international human rights law, as well as the emerging framework of
food sovereignty. Secondly, the scope of the transitional justice mechanisms to be considered
are restricted to post-conflict Palestine. Finally, I adopt a legal approach to these issues, whilst
acknowledging the importance of c omplementarity across disciplines such as politics,
economics, and conflict resolution. This project is based on the presumption that the Israeli-
Palestinian conflict would result in two separate States. Whilst there is some overlap,
generally I refer to the ‘occupied Palestinian territory’ (oPt) to signify Palestine during
occupation and ‘Palestine’ as post-occupation. Although Palestine’s statehood has already
been recognised by the UN,
1
this is to explicitly acknowledge the infringements on Palestinian
sovereignty under occupation and the consequent Israeli obligations. Transitional justice is
understood to be the way in which a post-conflict society responds to legacies of past abuse,
2
applying human rights and humanitarian law to the peace process.
3
This project begins by exploring the relationship between transitional justice and conflict
resolution, followed by a brief exposition of social, economic, and cultural rights in
transitional justice. Once these preliminary issues have been addressed the legal frameworks
of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) shall
be outlined and their potential complementarity or dissonance explored. There shall be
exploration of the food sovereignty framework and the emerging doctrine of ‘jus post bellum’.
The legal obligations outlined shall then be applied to particular food issues in the oPt to
1
Status of Palestine in the United Nations (4 December 2012) GA Res 67/19.
2
Mark Freeman, Truth Commissions and Procedural Fairness (Cambridge University Press 2006) 4; Lisa J Laplante, ‘Outlawing
Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’ (2009) 49 Virginia Journal of International Law 921.
3
Christine Bell, ‘The New Law of Transitional Justice’, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford
University Press 2008) 239.
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SOAS LAW JOURNAL VOLUME 4, ISSUE 1
exemplify violations of food protections. Final transitional justice mechanisms can be
discussed.
The key questions to be addressed and borne in mind throughout this project are:
▪ Who has or has had obligations in relation to food towards the Palestinian people?
▪ Who has violated food rights or obligations?
▪ Who is responsible for addressing and recompensing for these violations?
▪ Does an occupier’s obligations end when occupation ends?
▪ When does occupation end?
▪ What if occupation never ends?
The questions posed are not necessarily all answerable in the limited confines of this essay,
but underlie the purpose of this project and shall be considered throughout.
2. TRANSITIONAL JUSTICE AND CONFLICT RESOLUTION
It is useful to consider transitional j ustice processes prior to the end of a conflict as they can
contribute to conflict resolution and peace agreements. Transitional justice can even be
understood as ‘particularised practices of conflict resolution’.
4
Human rights violations can
trigger conflicts,
5
whilst their promotion can be a tool of conflict resolution,
6
functioning as
interdependent disciplines.
7
It is thus appropriate to analyse violations of food rights and
consider transitional justice in Palestine prior to any final resolution, as transitional justice
plays a key role in its ‘attempt to apply the normative constraints of human rights and
humanitarian law to peace agreement[s].’
8
Linking human rights and transitional justice with conflict resolution is criticised for adding
a further burden to the already stale negotiations, and can be problematic when the two
4
Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’ (2009) 3 The International
Journal of Transitional Justice 5, 13.
5
Oskar NT Thoms and James Ron, ‘Do Human Rights Violations Cause Internal Conflict?’ (2007) 29 Human Rights Quarterly
674, 676.
6
Dr BG Ramcharan, ‘Human Rights and Conflict Resolution’ (2004) 4 Human Rights Law Review.
7
Ellen L Lutz, Eileen F Babbitt and Hurst Hannum, ‘Human Rights and Conflict Resolution from the Practitioners’
Perspectives’ (2003) 27 The Fletcher Forum of World Affairs 173, 192.
8
Bell, ‘The New Law of Transitional Justice’ (n 3) 239.
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