CESR Report on Violations in the Occupied Palestinian Territories.
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Submitted by the Center for Economic and Social Rights
For the Fifty-Seventh Session of the United Nations Commission on Human Rights
19 March – 27 April 2001
In light of the devastating consequences of Israel’s military siege and economic blockade in the Occupied Palestinian Territories (OPT) from 28 September 2000 to the present, the Center for Economic and Social Rights (CESR) urges the Commission on Human Rights to take immediate action to protect the well-established international rights of the Palestinian people. In particular, CESR urges the Commission to ensure effective international intervention by adopting the concrete follow-up actions recommended in the recent draft report of the human rights inquiry commission.
Meeting in special session on 19 October 2000, the Commission on Human Rights condemned “the disproportionate and indiscriminate use of force in violation of international humanitarian law by the Israeli occupying Power against innocent and unarmed Palestinian civilians” and established “a human rights inquiry commission” to investigate the situation and provide concrete recommendations “with the aim of preventing repetition of the recent human rights violations” (E/CN.4/S-5/L.2/Rev.1).
The human rights inquiry commission (HRIC) recently submitted a comprehensive report investigating the root causes of the crisis, detailing the most serious violations of international humanitarian law and human rights law, and recommending a series of actions to remedy these violations (E/CN.4/2001/121). The findings and recommendations of this report reflect the clear international consensus on resolving the crisis in accordance with international law and human rights, as expressed in a series of important UN statements including Security Council Resolution 1322, the report of the High Commissioner for Human Rights (E/CN.4/2001/114), the report of the Special Rapporteur (E/CN.4/S-5/3), and various reports of the UN human rights treaty monitoring bodies.
Regrettably, Israel continues to flout the unambiguous and clearly expressed will of the international community by refusing to apply universal principles of international law to its conduct in the OPT. Such refusal presents a fundamental challenge not only to the legitimate rights of the Palestinian people, but also to the credibility of the UN system as a whole. It is therefore incumbent upon the Commission, as a leading voice for human rights in the UN system, to develop effective international measures to establish the rule of international law in the OPT and prevent the crisis from escalating into a regional conflict. Speaking directly to the issue of UN credibility, the HRIC remarks that:
The challenge to the organs of the United Nations is to rehabilitate their reputation… [through] the need to take steps to ensure that UN directives, whether in the form of resolutions or otherwise, are implemented to the extent possible, and that non-compliance is addressed by follow-up action (p. 14, para.. 29(b)).
The current intifada must be placed in the context of more than 50 years of ongoing international efforts to resolve the Israeli-Palestinian conflict on the basis of international law and human rights. Starting with General Assembly Resolution 181(II) in 1947, the UN has explicitly recognized and supported the right of the Palestinian people to self-determination. Security Council Resolution 242, which provided the legal basis for the Oslo peace process, affirmed the requirement that Israel end its occupation of the OPT.
The HRIC report accurately highlights the decisive role of Israel’s occupation of Palestinian territory and rejection of Palestinian self-determination and statehood as the basis for all other rights violations:
It is of pervasive significance that the Palestinian people are struggling to realize their right to self-determination, which by virtue of international law and morality provides the foundation for the exercise of other rights. Of comparable significance is the appreciation of the extent to which Israel’s continued occupation of Palestinian territories has remained the most formidable obstacle to Palestinian self-determination. (p. 7, para. 11)
While Israel’s occupation is the underlying cause of the current crisis, the more immediate cause is its policy of expropriating land for settlements and depriving Palestinians of free movement and economic opportunity through closure. Under the Oslo peace process, Israel extended rather than ended its occupation and control over the OPT. The number of illegal Jewish settlers more than doubled to 380,000, including 180,000 in East Jerusalem alone. These settlements are connected to each other and to Israel through an extensive, ever-expanding system of highways that fragment Palestinian territory into hundreds of non-contiguous units, in clear breach of Resolution 242 and of provisions in the Oslo agreements requiring both parties to respect “the territorial integrity and unity of the West Bank and Gaza Strip.” Even more damaging, Israel instituted a comprehensive system of military checkpoints throughout the OPT to control the movement of people and goods through discriminatory issuance of passes and permits for Palestinians only. Israel’s closure policy has crippled the Palestinian economy since 1993 and resulted in grave violations of human rights. Numerous UN human rights bodies have recognized these Israeli policies as illegal and posing a major obstacle to a just peace. For example, the Committee on Economic, Social and Cultural Rights recently concluded that “closures have cut off Palestinians from their own land and resources resulting in widespread violations of their economic, social and cultural rights.” (CESCR E/C.12.1/Add.27)
The HRIC draws attention to the interconnection between settlements, denial of self-determination, and the current intifada:
Settlements are a major obstacle in the way of peace between Israelis and Palestinians. First, they virtually foreclose the possibility of a viable Palestinian state, as they, together with the road system connecting them, destroy the territorial integrity of Palestine. In this sense, they act as a major impediment to the exercise of the right to self-determination within the internationally-recognized self-determination unit of Palestine, i.e. the territory occupied by Israel after the 1967 war. Secondly, the settlements provide daily evidence of the violations of international law and the failure of the international community, acting through the United Nations and the High Contracting Parties of the Geneva Conventions, to remedy such a situation. The despair and cynicism in the Palestinian community about the willingness of the international community to enforce the rule of law is in large measure due to its failure to halt the growth of the settler population and to persuade the Israeli Government to reverse this practice. The link between settlements and the present intifada is clear. Many of the acts of violence carried out by the IDF and settlers, that have resulted in Palestinian deaths and injuries, have occurred on the heavily defended roads leading to the settlements or in the proximity of the settlements. (p. 26, para. 7-8)
The extension of Israel’s military occupation through land confiscation, settlements, and closure sparked the current crisis, and now provide the infrastructure that enables Israel to impose its severe and crippling military blockade on the OPT. Almost all Palestinian population centers are today under military siege, with no exit or entry permitted for trade, work, or even medical emergencies. The office of the United Nations Special Coordinator (UNSCO) has documented the devastating economic effects of the Israeli siege, estimating daily aggregate losses at $11 million, more than 50% of GDP, not including property damage.
The effects of specific Israeli practices during the current intifada have been well-documented by UNSCO, the World Bank, the HRIC and independent organizations, and include the following examples:
The HRIC report documents blockade-related violations of a wide range of human rights and humanitarian laws, including the rights to life, food, health, education, housing and an adequate standard of living. The report concludes that:
internal closures seem to have a mainly punitive character quite unrelated to security and are more likely to have the opposite effect by inflaming Palestinian resistance… the comprehensive and protracted closure as well as the scale and nature of the destruction of property of Palestinian civilians is best regarded as collective punishment. (p. 27, p. 33, para. 16)
Israel has demonstrated contempt for the UN’s role in promoting international law and human rights - not only by maintaining a policy of systematic rights violations in the face of widespread international condemnation, but also by openly challenging the application of universal legal principles to its behavior. This contempt poses a fundamental challenge to the UN’s integrity and its ability to implement basic international norms of behavior.
The HRIC report is unequivocal in opposing Israel's rejection of international law: "While an occupying power or party to a conflict may be given a margin of appreciation in its assessment of the nature of the conflict, it cannot be allowed unilaterally to categorize a situation in such a way that the restraints of international humanitarian law and human rights law are abandoned” (p. 17, para. 8). In particular, the HRIC responds to Israeli efforts to evade its international obligations in three critical areas, as detailed below: the laws of occupation, human right law, and laws of war and police responsibility.
Alone against the combined weight of international authority and decisions, Israel has since 1967 maintained that the Geneva Conventions do not legally apply in the OPT due to confusion in the status of the prior sovereigns. The purpose of this argument is to deny Palestinians the protections accorded under international humanitarian law to occupied peoples. The HRIC points out that Israel’s “argument, based on a strained interpretation of Article 2 of the Convention, fails to take account of the fact that the law of occupation is concerned with the interests of the population of an occupied territory rather than those of a displaced sovereign.” Due to Israeli intransigence, the HRIC “sees no alternative to the exercise of the supervisory powers of the High Contracting Parties under Article 1 of the Fourth Geneva Convention” (p. 17, para. 7). Likewise, in her report, the High Commissioner for Human Rights “recalls that the General Assembly and the Commission on Human Rights have repeatedly reaffirmed the de jure applicability of the 1949 Fourth Geneva Convention…” and states that “It would be appropriate for the High Contracting Parties to assume their responsibility under the Convention.” (E/CN.4/2001/114).
Since the Oslo process began in 1993, Israel has denied the application of human rights standards to its conduct in the OPT on the grounds that the Palestinian Authority now exercises effective control over the population. The HRIC notes that the test established in the Nuremberg Trials is whether the occupier “has the ability to exercise such control” (p. 17, para. 7) regardless of whether it chooses to exercise this power. The UN human rights treaty monitoring bodies have similarly concluded that Israel is bound by human rights obligations. For example, the Human Rights Committee stated in August 1998 that Israel was responsible for protecting human rights in the OPT based on "the long-standing presence of Israel in these territories, Israel's ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein" (CCPR/C79/Add.93 D10).
Israel is treating the current crisis as an internal armed conflict to justify the use of overwhelming force on grounds of military necessity and to avoid stricter international regulations governing police response to demonstrations. The HRIC expressed deep skepticism of Israel’s claim to be engaged in "active warfare" with an organized and armed enemy force, noting that “to the best of our knowledge, the IDF, operating behind fortifications with superior weaponry, endured not a single casualty as a result of Palestinian demonstrations, and further, their soldiers seemed to be in no life-threatening danger during the course of these events” (p. 10, para. 17). At the same time, the HRIC echoed the observation of numerous other UN bodies that even under the laws of war, Israeli actions have violated both “the principle of distinction requiring that civilians not be made the object of attacks” and the principle of proportion requiring restraint in inflicting civilian casualties.
The international community faces a difficult situation with a recalcitrant state engaged in widespread violations of human rights and humanitarian law, in disregard of numerous efforts in the UN system to uphold the rule of law. To address this challenge, the Commission must take the initiative in establishing effective mechanisms for implementing basic human rights in the OPT as an essential first step in the longer process of securing a just resolution to the conflict. The UN has made clear in numerous fora and myriad reports the absolute necessity for Israel to uphold international law in its conduct in the OPT and now the Commission has the opportunity to propose concrete measures to effectuate this well-established international mandate.
Towards that end, a number of practical steps have already been proposed by the HRIC, the High Commissioner for Human Rights, the Special Rapporteur, and a host of UN and independent human rights bodies. In assessing the viability of these steps, the HRIC noted that it
was encouraged by the extent to which its own assessments of the main issues addressed in the report substantially coincided with the most trustworthy third party views, including those of diplomatic representatives of the European Union and senior international civil servants with years of experience in the region. Thus, an informed and impartial consensus reinforces the conclusions and recommendations set forth here. (p. 37, para. 6)
CESR urges the Commission to support this international consensus through the following actions: