Palestine Project Series 3
January 2000
Center for Economic and Social Rights
25 Ann Street
New York, NY 10038
USA
Tel: 212-634-3424
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Email: rights@cesr.org
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P.O. Box 5138
Gaza City
Palestine
Tel/Fax: 972-7-284-8557/8337
Email: cesr@palnet.com
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London E2 9PE, UK
Tel: 44-181-983-3334
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Email: cesr_london@hotmail.com
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Center for Economic and Social Rights
CESR was established in 1993 to promote social justice through human rights. CESR documents violations of economic and social rights, collaborates with local partners in affected communities, and advocates for changing policies that impoverish and exploit people. CESR currently has programs in Latin America, the Middle East and the United States.
Please visit our website at www.cesr.org
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Palestine Project Series
For the past three years CESR has worked to promote human rights and economic justice in Palestine. Together with a team of Palestinian and international NGOs, CESR has completed a comprehensive research program in Gaza and the West Bank. The research documents human rights violations linked to a dramatic decline in Palestinian living conditions since the onset of the Oslo process. Based on these findings, CESR and project partners are coordinating a broad-based education and advocacy campaign to hold Israel, the Palestinian National Authority (PNA) and international donors accountable for violations resulting from their respective policies under Oslo.
Non-governmental organizations in the human rights field should urgently consider what can be done to remedy the present situation in which the great majority of NGOs pay little more than lip service to economic, social and cultural rights.i
The Oslo processii continues to capture world attention. But the world views Oslo solely through the politics of the process itself - meetings between leaders, shuttle diplomacy, and military and security arrangements. International attention rarely focuses on Oslo's significant and largely negative impact on the daily lives of Palestinians.
Because of this neglect, the media and public remain unaware that six years of "peace" have meant a downward spiral of poverty, hardship and misery for the majority of Palestinians. The main powers responsible for this economic crisis – Israel, the Palestinian Authority (PA), and international donors – have ignored human rights and economic justice throughout the Oslo process.
This paper argues that economic, social and cultural rights (ESCR) provide a framework for analyzing the economic crisis, assessing responsibility, demanding accountability, and offering solutions.
Well-established in international law, ESCR can address Palestinian living conditions not as adjunct issues to the political process, nor simply as development goals to be compromised at will, but rather as fundamental human rights that demand priority and action. These rights can be claimed through legal and political advocacy against the powers that exercise real control over Palestinian lives, and therefore bear responsibility for human rights violations.
The first section of this paper outlines the development of ESCR laws and standards, discussing past neglect of these rights and outlining a new human rights approach to economic injustice. The second applies the ESCR framework to Palestine and assesses the respective responsibility of Israel, the PA, and international donors for rights violations.
In recent years there has been a surge of interest in ESCR and more generally in the intersection of economic development and human rights. Neglected during the Cold War, ESCR have assumed heightened significance in light of the persistence of systemic poverty and inequality in the global economy. The failure of traditional development policies, seen in the increasing divide between rich and poor around the world, has spurred new efforts to address economic deprivation through human rights strategies.
ESCR were established in the Universal Declaration of Human Rights (UDHR), the founding document of international human rights law.iii Unanimously ratified by the UN General Assembly in 1948, the Universal Declaration broke new ground in international relations by establishing binding legal duties that governments owed to individuals and groups rather than to other governments. The Universal Declaration also recognized the interdependence and indivisibility of all human rights, thereby guaranteeing all people both civil and political freedom – through the human rights to life, physical integrity, free speech and belief, due process of law, and political participation – and economic and social freedom – through the human rights to an adequate standard of living, housing, work, education, food and health.
Over the past 50 years, ESCR have been elaborated in a wide range of international treaties, laws, and principles, despite being neglected in practice.iv Of primary importance is the 1967 International Covenant on Economic, Social and Cultural Rights (the "Covenant"), which has been ratified by 137 states to date.v ESCR have been recognized in all major international treaties protecting the human rights of vulnerable groups, such as the Convention on the Rights of the Child,vi the Convention on the Elimination All Forms of Discrimination Against Women,vii and the Convention on the Elimination of All Forms of Racial Discrimination,viii as well as various treaties of the International Labour Organization. ESCR have also been adopted by regional organizations such as the European Union and the Organization of African Unity, as well as recognized in many national constitutions and laws.ix
There is a growing body of jurisprudence on ESCR developed by scholars, national courts, and international legal bodies such as the UN Committee on Economic, Social and Cultural Rights (a group of experts that reviews state compliance with the Covenant).x For example, the Committee has issued a series of general comments elaborating the legal content of specific rights (housing, food, education),xi as has another UN human rights body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (food, housing).xii
The international law of ESCR provides a legal, political, and moral framework to challenge policies that perpetuate poverty and inequality. Just as governments are accountable under human rights law for denying political freedom, so too they are accountable for denying adequate food or health care. ESCR also provide a framework for people to participate in claiming their own rights. This enables affected communities and NGOs to demand legal accountability in situations where policy-makers would prefer to obscure the lines of responsibility and avoid public scrutiny.
Assessing violations in concrete situations is one of the most important aspects of ESCR. Despite controversy over the precise meaning of the Covenant's "progressive realization" clause, there are three types of policies that always constitute violations of ESCR. First are policies that deprive people of a basic level of subsistence necessary to live in dignity – the principle of minimum core content. Second are measures that actually worsen people’s access to ESCR – the principle of non-regression. Third are policies that discriminate in access to economic and social goods– the principle of non-discrimination.
Failure to satisfy essential human needs, based on the minimum core content of ESCR, is an immediate and absolute violation of human rights that can never be excused by a country’s level of development.xiii This recognizes that people’s very survival depends upon access to essential services and that no state is too poor to meet those basic needs. As noted by Danilo Turk, the UN Special Rapporteur on ESCR: "States are obliged, regardless of their level of economic development, to ensure respect for minimum subsistence rights for all."xiv
The Committee has also declared that responsible parties may not adopt regressive measures that harm ESCR, for example through “a general decline in living and housing conditions directly attributable to policy and legislative decisions by States parties.”xv The principle of non-regression would prohibit a government from cutting back on basic services such as health care or primary education, even under pressure from international lenders such as the IMF and World Bank, if such cutbacks lessened people's access to those services.
The Covenant flatly prohibits discrimination in access to food, health care, housing, work, education and other ESCR on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”xvi The prohibition against discrimination is absolute. Discrimination may not be justified under any circumstances, such as low levels of development. Moreover, policies are considered discriminatory if their effects are discriminating in practice, even if those effects were not intended.xvii
Although human rights developed a solid legal foundation in the 50 years since the Universal Declaration, ESCR in particular were neglected and distorted throughout the Cold War. During this time, the United States and Western countries promoted civil and political rights (CPR), downplaying and even dismissing ESCR.xviii This explains why the human rights regime was divided into two separate international covenants for CPR and for ESCR, although each paid lip service to the concept that all human rights are “interdependent and indivisible.”xix
Cold War ideology also affected the practice of human rights practice in civil society. The major international human rights groups, based and funded in the US and Europe, focused their work exclusively on CPR. Human rights discourse also prioritized CPR, terming ESCR “second generation” rights despite their equal status in the Universal Declaration and the two covenants.xx This imbalanced approach has left its imprint on human rights practice in the form of several enduring misperceptions.
One traditional fallacy views CPR as negative (or concrete) rights that are resource-free and therefore immediately realizable, and ESCR as positive (or abstract) rights that require state expenditures and are therefore subject to progressive realization. However, it can easily be shown that all human rights have a negative action component requiring little to no resources (the duty to respect), a regulatory action component requiring some resources (the duty to protect), and a positive action component requiring significant resources (the duty to fulfil). The negative component of the right to political participation means that one should not be prevented from voting; for example, by charging exorbitant registration fees. The regulatory component requires that third parties be prevented from interfering in the vote; for example, armed groups seeking to intimidate voters. The positive component requires the establishment of institutions and procedures to ensure a free and fair voting process. By the same token, the negative component of the right to food means that one should not be deprived of the means of feeding oneself; for example, through land or crop confiscation. The regulatory component requires that third parties be prevented from interfering in food production; for example, a corporation dumping toxic chemicals in traditional fishing waters. The positive component requires the establishment of institutions and procedures to ensure that hunger and malnutrition are eliminated.
Another common argument is that ESCR are too vague to measure and too complex to enforce. These charges are generally made by Northern human rights lawyers unfamiliar with the field of development. There are volumes of research on socio-economic conditions (concerning health, education, and other ESCR issues) compiled by academics and development agencies. UN agencies have produced methodologies for assessing these conditions and comparing them across countries; for example, the UNDP’s human development index, UNICEF’s rate of progress measurements, and the World Bank’s report on World Development Indicators.. There is clearly not a lack of data, since the IMF relies on detailed economic indicators when imposing structural adjustment programs that limit state expenditures in social sectors such as health care and education. And judges assess complex economic data when deciding anti-trust cases; for example, the recent US case against Microsoft. These same methods can and should be used to defend people’s rights to the basic necessities for a life of dignity.
A related argument – that ESCR are not judicially enforceable – is factually inaccurate. Many states have enshrined ESCR in their constitutions and domestic laws, and as a result, there are numerous examples of courts adjudicating and enforcing ESCR around the world. Even in the US, whose legal system is generally hostile to ESCR, many state constitutions protect health and education, for example, and these rights have been frequently litigated.
It should be apparent that the traditional Cold War pretexts for neglecting ESCR are in fact ideological positions masquerading as legal and methodological objections. In essence, these objections reflect a refusal to recognize the value and dignity of a majority of the world’s people, struggling to survive the poverty and deprivation caused by countless human rights violations.
The main obstacle to realizing ESCR has always been a lack of political will by those holding power in governments, international institutions, and even some civil society groups with human rights mandates. This failure to promote ESCR allows decision-makers to pursue policies that impoverish people with impunity and without accountability. Even worse, victims of these policies are demobilized through lack of recognition that their most basic human rights are being violated.xxi
The end of the Cold War has opened new space for activist approaches to ESCR. In response to public pressure during the 1990s, the international community of states convened at world summits on such issues as human rights (Vienna 1993), social development (Copenhagen 1995), and food security (Rome 1998). Major UN agencies, including UNDP and UNICEF, have adopted new policies and programs on human rights and human development. Even powerful international financial institutions such as the World Bank, the WTO, and global corporations recently have been compelled to address the human rights impacts of their economic policies.
But the real momentum towards ESCR has been created by grassroots and civil society groups, especially from the South. A growing number of these groups are promoting a “bottom-up” model of human rights that prioritizes the interests and participation of oppressed communities. This approach recognizes that real social gains are rarely handed down by benevolent governments and decision-makers, but rather must be struggled for and claimed by those directly affected by violations.
This new human rights approach moves beyond the legalistic fact-finding and quick interventions that characterize traditional human rights work. Instead it relies on multidisciplinary social science research to document violations and assess responsibility. Moreover, advocacy at the international level is linked to community-based campaigns for economic justice to ensure the priority of local concerns.
The new approach recognizes the value of addressing issues such as a living wage, primary education, and access to clean water and health care as human rights as well as development goals. Recasting issues of systemic poverty in the vocabulary of human rights helps disenfranchised communities recognize that their struggle, at its core, is over dignity and rights rather than mere charity. Human rights advocacy also channels public pressure through a framework of legal and moral accountability in situations, like the current crisis in Palestine, where policy-makers would prefer to obscure the lines of responsibility and avoid public scrutiny.
i Alston, “Denial and Neglect” in Roech, ed., Human Rights: The New Consensus (London: Regency Press, 1994), p. 112.
ii In this publication the terms "Oslo" and "Oslo process" are used interchangeably to refer to the set of agreements signed and policies implemented since the signing of the Declaration of Principles in September, 1993.
iii Universal Declaration of Human Rights, G.A. Res. 217A of 10 December 1948, UN Doc. A/810 (1948).
iv See, Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press:, 1995); Leckie, "Another Step Towards Indivisibility: Violations of Economic, Social and Cultural Rights" in Human Rights Quarterly, vol. 20, no. 1, 1998, pp. 81-124, Eide, “Economic, Social and Cultural Rights as Human Rights” in Eide, Krause and Rosas, eds., Economic, Social and Cultural Rights: A Textbook., (Netherlands: Kluwer Academic Publishers, 1995).
v International Covenant on Economic, Social and Cultural Rights (ICESCR), UN Doc. A/RES/2200 A (XXI), (1966).
vi Convention on the Rights of the Child, UN Doc. A/RES/44/736 (1989).
vii Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc. A/RES/34/180 (1979).
viii Convention for the Elimination of All Forms of Racial Discrimination, UN Doc. A/RES/2106 A (XX) (1965).
ix See Leckie; Craven, and Eide, note 3.
x See, Alston and Quinn, “The Nature and Scope of States Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights” in Human Rights Quarterly, vol. 9, no. 2, 1987; Craven, see note 3.
xi General Comment 4 of the Committee on Economic, Social and Cultural Rights, U.N. Doc.E/C.12/1991/23; General Comment 7 of the Committee on Economic, Social and Cultural Rights, U.N. Doc.E/C.12/1997/4; General Comment 11 of the Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1999/4; General Comment 12 of the Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1999/5.
xii See, Eide, Report on the Right to Adequate Food as a Human Right, UN Doc. E/CN.4//Sub.2/1987/23; Sachar, UN Special Rapporteur on the Human Right to Adequate Housing, Final Report: E/CN.4/Sub.2/1995/12.
xiii See, Turk, Second Progress Report of the UN Special Rapporteur on Economic, Social and Cultural Rights, UN Doc. E/CN.4/Sub.2/1991/17, p. 18, para. 10; General Comment 3, see note 24, UN Doc. E/C.12/1990/8, para. 10. International law scholar Richard Falk argues that a state which “maintains an economic situation in which a small proportion of the population gains most of the wealth while a large majority subsists at or below the poverty line is guilty of violating this category of human rights.” Falk, Human Rights and State Sovereignty, (New York: Holmes & Meier Publishers, 1981).
xiv See Turk, ibid. Along the same lines, the Committee has affirmed that "a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is, prima facie, failing to discharge its obligations under the Covenant.” General Comment No. 3 of the Committee, see n. 24, para. 10.
xv General Comment No. 4, see note 10, para. 11.
xvi The Covenant, see note 4, Art. 2(2).
xvii Craven, see note 3, pps. 166-167.
xviii Mutua, “Human Rights Ideology,” in University of Virginia. International Law Journal, vol. 36, p.589 (1996).
xix International Covenant on Civil and Political Rights, 999 UNTS 171; 6 ILM 368 (1967). ICESCR, see note 4.
xx Criticizing this imbalanced approach, Philip Alston and Bruno Simma, respectively Chairperson and member of the UN Committee on Economic, Social and Cultural Rights (the Committee), which monitors compliance with the Covenant on Economic, Social and Cultural Rights (the Covenant), have stated that “it must be asked whether any theory of human rights law which … condemns arbitrary imprisonment but not death by starvation, and which finds no place for the rights to access to primary health care is not flawed both in terms of human rights and of United Nations doctrine.” Alston and Simma, “The Sources of Human Rights Law: Custom, Jus Cogens and General Principles,” Australian Yearbook of International Law, vol. 12, 95 (1992).
xxi Responding to past failure to promote ESCR, the 1993 World Conference on Human Rights in Vienna declared its “dismay and condemnation of gross and systematic violations that constitute serious obstacles to the full enjoyment of human rights that continue to occur in different parts of the world. Such violations and obstacles include… poverty, hunger and other denials of economic, social and cultural rights.” Vienna Declaration and Programme of Action, para. 31, adopted at the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF.157/24) (the “1993 Vienna Declaration”).
The Oslo process marked a diplomatic and psychological breakthrough in the Israeli-Palestinian conflict. Leaders on both sides proclaimed a new era of peace and cooperation, while the international community, in particular the United States and Europe, pledged financial and political support.
This lofty rhetoric stands in stark contrast to the catastrophic effects of the Oslo process on Palestinian rights. The broad political consensus in favor of Oslo has actually served to mask the underlying reality of economic stagnation and geographical dismemberment in Palestine, and the effective abandonment of Palestinians' human and national rights.
The most significant flaw in the Oslo Accords is the failure of the negotiators even to acknowledge applicable international law regarding occupation and self-determination – the central legal concerns of the Israeli-Palestinian conflict. Without international law to mediate disputes, Israel, as the dominant force on the ground, has exercised the unfettered power to unilaterally dictate the terms of Oslo’s implementation. This has allowed Israel to cripple the Palestinian economy through closure and seize more Palestinian land and resources for settlement expansion without facing real international pressure for these major violations of international law. The international community has also tolerated a high degree of repression and corruption by the PA as part of the “price" of peace. As a result of these Israeli and PA policies, Palestinians face higher unemployment rates, lower household incomes, restricted access to such basic services as health care and education, and severe limitations on freedom of speech and movement – despite over three billion dollars in international aid since the Oslo process began.
In short, structural flaws in the Oslo process have led to a paradox in which increased violations of Palestinians’ national and human rights have been met with decreased international concern and pressure. Yet the dominant public discourse continues to insist that Oslo is the only viable framework for resolving the Israeli-Palestinian conflict. This view attributes breakdowns in the Oslo process to personality conflicts between political leaders that can be resolved through “shuttle diplomacy.” Moreover, opposition to Oslo is equated with opposition to peace, with no recognition that any peace process built on a foundation of human rights violations and economic exploitation is not sustainable except through increasing levels of repression.
This narrow view can no longer be allowed to preclude legitimate critiques and alternatives. Only through identifying structural flaws in the Oslo process will it be possible to prevent their continuation or recurrence under a different guise in the future. And without the promotion of alternatives based on human rights and international law, Israel, the PA, and international donors will continue to blame each other for the crisis in Palestine while shunning their own responsibility by hiding behind Oslo's veil of legal and political ambiguity.
Under the Oslo process, Palestinians have suffered systematic abuse of the full range of their human rights. The extraordinary poverty in Palestine – a clear indication of ESCR violations – results from deliberate policy decisions by governments and agencies taken within the Oslo framework. To challenge these policies as human rights violations, it is necessary to analyze the respective legal responsibilities of each of the major parties to Oslo – Israel, the PA, and international donors.
Israel’s Responsibility
Israel has ratified several international human rights treaties, including the Covenant on Economic, Social, and Cultural Rights. As a state party to the Covenant, Israel must respect the full range of human rights contained therein and report periodically to the Committee that monitors compliance with the Covenant.xxii Several UN human rights committees have affirmed that Israel is legally responsible for policies that violate human rights and humanitarian law of all people within its effective control and jurisdiction, even those living beyond its borders in Palestinian territories.xxiii
Despite its status as an occupying power in violation of the Geneva Conventions,xxiv Israel was allowed to retain control over the critical factors of Palestinian development during Oslo’s interim period. This includes control over borders, basic resources such as land and water, external trade, foreign affairs, refugees, and the status of Jerusalem.xxv As a result, Israeli policies have largely determined Palestinian enjoyment of ESCR. Using these powers, Israel has enforced the harshest series of continuous “closures” of Gaza and the West Bank since its military occupation began in 1967, prohibiting the free movement of people and goods through a restrictive permit system and effectively suffocating the nascent Palestinian economy. The closure has cut Gaza off from the West Bank despite Israel’s agreement under Oslo to view these areas as “a single territorial unit, whose integrity will be preserved during the interim phase.”xxvi The World Bank has estimated the direct costs of closure at over $5 million per day. As an indication of closure’s devastating impact, Palestinian real per capita GDP has actually declined about 20% since the Oslo process began, despite over $3 billion in foreign aid. Largely as a result of closure, Palestinians suffer from higher unemployment, greater incidence of poverty, and worse access to health and education.
Israel has also faced minimal international condemnation despite undertaking the largest-ever expansion of settlements and roads on occupied Palestinian land. The settler population, which reached 280,000 in 27 years of direct occupation, increased 43% to approximately 400,000 in the span of just six years under Oslo. Jewish-only areas now encircle most Palestinian population centers in the West Bank, cutting off contiguous towns and markets from each other. While expanding Jewish settlements, Israel has destroyed thousands of Palestinian homes on the pretext that their owners lacked proper permits. In addition, Jewish settlers are allocated five times the amount of water as their Palestinian neighbors, greatly hindering Palestinian industrial and agricultural development. These geographic and demographic policies make Palestinian development extraordinarily difficult.
Israel has even ignored its most important commitments under Oslo without facing international repercussions. These include pledges to withdraw in three phased troop redeployments from “all” of the West Bank and Gaza except for final status areas, to guarantee safe passage for people and goods between the West Bank and Gaza as “a single territorial unit,” and to permit external access for Palestinians through an airport and seaport.
Numerous independent and UN bodies have recognized these Israeli violations of ESCR. In November 1998 the Committee on ESCR assessed Israel's compliance with its obligations under the Covenant and strongly condemned Israeli policies of closure, settlement building, by-pass road construction, expropriation of land, water and resources, housing demolition and arbitrary evictions.xxvii (For more on the Committee's assessment of Israeli violations, please see CESR's Palestine Project Series 2.) As discussed above, a state’s most basic duty under the applicable legal regime is the duty to respect, that is, refrain from taking any action that prevents people from enjoying such rights. It is evident that all these Israeli policies violate this most basic duty. They also violate the most basic principles of ESCR, namely the principles of non-regression and non-discrimination, by targeting Palestinians but not Israelis and regressively impacting Palestinian enjoyment of all ESCR, including the rights to an adequate standard of living, education, housing, and health care.xxviii
The PA’s Responsibility
Even states that have not ratified international treaties on ESCR are bound to respect human rights principles that are part of “customary law,” law that has gained universal acceptance in the international community.xxix The Universal Declaration is widely considered to be part of customary law and therefore binding on all states, whether or not they have ratified subsequent human rights treaties. The PA is therefore obligated to respect human rights as a delegated authority of the PLO, which has state-like human rights responsibilities.xxx As the PLO explicitly recognized in its 1988 Declaration of Independence: “The State of Palestine declares its commitment to the purposes and principles of the United Nations, to the Universal Declaration of Human Rights and to the policy and principles of non-alignment.”xxxi This position also finds support in the PA’s frequent public declarations agreeing to abide by human rights principles. xxxii
Under Oslo, the PA has been granted full jurisdiction only over A areas -- currently about 65% of Gaza and isolated enclaves comprising 10% of the West Bank including Jerusalem.xxxiii In effect, the PA was given the unenviable task of protecting Israeli security (strictly defined as the personal safety of every single Israeli) without enjoying either sufficient political recognition or economic control to pursue real self-determination or development. The PA has responded to inevitable popular protest over declining living conditions by repressing institutions and individuals with dissenting views on Oslo, including journalists, NGOs, and other civil society groups. xxxiv These repressive policies and widespread human rights violations – characterized by security sweeps, military courts, arbitrary detention, and torture – have not only been demanded by Israel in the name of fighting "terrorism," but also condoned by the same donor governments who fund PA training programs on the rule of law and good governance.xxxv
Moreover, the PA has instituted a corrupt system of governance; an audit by the elected Palestinian Council revealed that senior public officials had mismanaged a staggering 40% of aid and funds.xxxvi Ordinary Palestinians have also been harmed by the establishment of monopolies by PA officials, leading to a steep rise in price of basic commodities.xxxvii Widespread corruption by public officials, even if not an express governmental policy, implicates human rights to the extent that the governing authority is responsible for the acts of third parties under its control under the duty to respect. Corruption that is so prevalent at the highest levels of the cabinet and bureaucracy, combined with the monopoly-based price increases of basic goods, constitute regressive measures that have harmed the enjoyment of ESCR by most Palestinians.xxxviii
International Donors
A broad range of non-state actors have duties under human rights law even though they have not ratified specific treaties. The General Assembly proclaimed in the Universal Declaration that “every individual and every organ of society shall…promote respect for these rights and freedoms.”xxxix The ESCR Committee has affirmed this broad concept of human rights responsibility in observing that third parties, intergovernmental organizations and agencies, and the international community as a whole have legal obligations regarding ESCR.xl Moreover, states and non-state actors are responsible for policies that indirectly support violations by third parties. For example, the International Court of Justice found the United States responsible for abuses committed by the contras in Nicaragua by virtue of US political and financial support.xli
Under Oslo international donors have used aid programs to support irresponsible and illegal Israeli and PA policies and actively promote a model of development that ignores the socio-economic needs of the impoverished Palestinian majority. These donors therefore have legal obligations as third parties whose policies influence human rights protection in Palestine. The fact that European and US funders are essentially bankrolling the entire Oslo process, providing an estimated 70% of the PA’s budget, makes them responsible for human rights violations committed with these funds, as the US was found liable for violations by the contras in Nicaragua. The astonishing imbalance in foreign funds granted to the PA –the executive branch has received 99% of the aid while the judiciary and legislature combined have received only 1%xlii – has been the single largest factor in undermining the rule of law and shaping the increasingly lawless security apparatus in the self-rule areas.xliii
Moreover, donors have not demanded an end to the Israeli closure despite the fact that their aid has been diverted away from real development and towards emergency measures such as temporary job creation. The total foreign aid to the PA under Oslo, more than $3 billion, does not even equal the direct Palestinian losses (wages and trade) resulting from closure, let alone the indirect losses such as declining foreign investment. In effect, foreign aid has partially subsidized Israel's illegal policy of suffocating the Palestinian economy, and thereby diluted international pressure to lift the closure.
Perhaps the biggest indictment of international aid to Palestine is that donors intend to establish export processing zones as the blueprint for Palestinian economic development. Economic plans proposed by Israel, the United States, the World Bank, and other donors have called for the expansion of export processing zones like Karni at the Erez checkpoint. Similar to the maquiladoras at the US-Mexico border, these zones will allow Israeli and foreign capital to exploit cheap Palestinian labor while maintaining a strict closure that illegally confines Palestinians within their enclaves. It is self-evident that this plan will not only perpetuate Israeli closure, which is the single largest factor in ESCR violations, but will also preclude any long-term economic development in Palestine.
Thus in both the concrete uses of international aid and the future blueprint for development, donor policies have undermined Palestinians' human rights and damaged the prospects for peace and democratization in the region.
The Oslo process has spelled disaster for most Palestinians. Expected to bring a measure of prosperity and security to a population which had suffered 27 years of brutal military occupation, it has instead caused an increase in economic deprivation and human rights violations. Under Oslo Israel and the PA both claim responsibility for exercising power while at the same time disavowing responsibility for human rights protection. The international community is complicit through its silence in the face of grave human rights abuses and through its lack of accountability for donor funds which subsidize PA corruption and Israel's disastrous policy of closure.
Israel, the PA, and international donors have thus avoided accountability for the crisis by pointing fingers at each other and hiding their own responsibility behind a veil of legal and political ambiguity. In essence, Oslo's structural failure to link peace with human rights has created a situation in which Palestinians now face a form of double repression from Israel and their own nascent government, without recourse to international law or effective outside pressure. The end result is that, at a time when the human rights of Palestinians are under unprecedented attack, there has been no conceptual or practical program for effectively defending these rights.
The Oslo process is at a critical juncture. Israeli and Palestinian negotiators will soon conduct "final status" talks on intractable issues such as land and water, refugees, and Jerusalem. Yet Israeli Prime Minister Barak has already insisted that there will be no division of Jerusalem, no return of refugees to present day Israel, no dismantling of major settlement blocs, and economic "separation" (read strangulation) of any future Palestinian state. Given the weakness and complicity of the Palestinian leadership, the future is clear: a politically and economically unviable Palestinian statelet in most of Gaza and fragmented enclaves of the West Bank, subject to Israeli control, dependent on international aid and brutally policed by the ubiquitous Palestinian "security" forces.
It cannot be denied that the political and legal complexities of the Palestinian situation make any human rights approach difficult. Even before Oslo, the history of varying successive ruling authorities – Ottoman, British, Jordanian, Egyptian, and Israeli – led to the fusion of incompatible laws and institutions into an arbitrary patchwork with separate and competing jurisdictions in Gaza and the West Bank. However, a human rights advocacy campaign based on thorough scientific research and a clear understanding of current legal complexities offers the best hope for challenging the ongoing impoverishment of Palestinians under Oslo.
Since 1996 the Center for Economic and Social Rights (CESR) has worked with a team of Palestinian and international NGOs on a comprehensive research program in Gaza and the West Bank. The research documents human rights violations linked to a dramatic decline in Palestinian living conditions since the onset of the Oslo process six years ago. Based on these findings, CESR and project partners are coordinating an education and advocacy campaign to hold Israel, the PA and international donors accountable for violations resulting from their respective policies under Oslo.
xxii Alston and Quinn, see note 9.
xxiii Under Oslo, Israel retains full jurisdiction over C areas and overriding security jurisdiction over B areas, while the PA exercises full jurisdiction over A areas. As a result, Israel is directly responsible for violations of human rights and humanitarian law in B and C areas, and, with respect to A areas, holds third party human rights obligations and humanitarian law obligations under the doctrine of siege. For more on these issues, please refer to CESR's submission to the UN Committee on Economic, Social and Cultural Rights at its 19th session, as well as the Committee's own Concluding Observations (December 1998), both found in CESR's Palestine Project Series 2.
xxiv For example, the IVth Geneva Convention obligates occupying powers to “facilitate the care and education of children” and to ensure the availability of “foodstuffs, medical stores and other articles” for civilian needs. IVth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. XXIII, L, 6 UST. 3516, 75 UNTS. 287.
xxv Interim Agreement on the West Bank and Gaza Strip, Sept. 28, 1995, 36 ILM 551 (1997) (“Oslo II”).
xxvi See, Ibid., Art. 4.
xxvii Concluding observations of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.27,
4 December 1998.
xxviii As discussed above, the Covenant recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions.” ICESCR, Art. 11(1).
xxix See, Alston and Simma, “The Sources of Human Rights Law: Custom, Jus Cogens and General Principles,” Australian Yearbook of International Law, vol. 12 (1992).
xxx The PLO has sovereign legal personality by virtue of (1) recognition of the PLO’s 1988 Declaration of Independence by 125 countries, leading to exchange of diplomatic relations; (2) acknowledgment by the UN General Assembly of the PLO's sovereign status; and (3) the PA’s exercise under the Oslo Accords of closed jurisdiction and effective control over A areas in the West Bank and Gaza Strip.
xxxi Declaration of Independence of the State of Palestine, UN Doc. A/43/827 of November 18, 1988 (the “1988 Declaration of Independence”).
xxxiiSee, Human Rights Watch/ Middle East, Palestinian Self-Rule Areas: Human Rights under the Palestinian Authority, Vol. 9, No. 10 (E) (September 1997).
xxxiii If the Wye Memorandum is fully implemented, area A in the West Bank will increase to 18.1%.
xxxiv See, “The Practice of Torture in the Palestinian Authority,” the Palestine Human Rights Monitor, no. 3 (May-June 1997 (based on 42 case studies of torture victims); Al Haq, Press Release no. 116 (August 1996); Peace Watch, “Freedom of the Press Under the Palestinian Authority (January 16, 1996); Amnesty International, “Palestinian Authority: Amnesty International Calls for an End to Torture and Political Detention Without Trial,” AI Index: MDE/15/55/96; Amnesty International, “Palestinian Authority: Prolonged Political Detention, Torture, and Unfair Trials,” AI Index: MDE/68/96; Human Rights Watch-Middle East, supra n. 56.
xxxv See, Human Rights Watch/ Middle East, Palestinian Self-Rule Areas: Human Rights under the Palestinian Authority, Vol. 9, No. 10 (E) (September 1997).
xxxvi Report of the Special Committee of the PLC on the Report of the Head of the General Monitoring Department, 1997.
xxxvii See, Roy and UNSCO Reports, supra n. 44.
xxxviii See, supra, n. 24, 25
xxxix UDHR, see note 2, Preamble.
xl The Committee observed that these obligations "are multidimensional. At the macro-level, they affect: (1) national and local governments and agencies, as well as third parties capable of breaching those norms, (2) the international community of States, and (3) intergovernmental organizations and agencies.” Id. (emphasis added) UN Doc. E/CN.4/Sub.2/1991/17, 18-19.
xli Case Concerning Military and Paramilitary Activities in and against Nicaragua, Judgment of 27 June 1986, ICJ Rep. Para. 107-109. See also the Inter-American Court of Human Rights judgment in the Velasquez-Rodriguez Case that a state has a positive duty to prevent human rights violations occurring in territory subject to its effective control, even if such violations are carried out by third parties. Velasquez-Rodriguez Case, 28 ILM 291, para. 166 (1989); Case 7615 Inter-Am. Ct. H.R., OAS/ser.L/V./II.66, Doc. 10.
xlii By 1997, the executive branch had received $2.2 billion and the legislative and judiciary received $15 million. UNSCO, "Rule of Law Development in the West Bank and Gaza Strip Survey" (July 1997). The relative percentages have not changed appreciably since then.
xliii USAID’s program guidelines state that the agency “supports activities to help build democracy by increasing citizen participation, expanding institutions of civil society, increasing the flow and diversity of information to citizens, and strengthening selected democratic institutions.” USAID West Bank and Gaza Mission, “West Bank and Gaza: Program Overview,” Tel Aviv, January 1997. However, Dr. Roy has shown that a disproportionate amount of USAID funds have financed activities of the PA police and security forces. See, Roy, “US Economic Aid to Gaza and the West Bank,” Middle East Policy, vol. IV, no. 4, (October 1996), at 69. The above information was cited in Human Rights Watch-Middle East, supra n. 56, at 41,42.