4. ISRAEL CONTINUES TO EXERCISES EFFECTIVE JURISDICTION IN THE WBGS AND IS OBLIGATED TO IMPLEMENT THE COVENANT
A. Precedents in International Law
Israel's argument that the Covenant does not apply beyond its borders contradicts established laws and precedents. Under international law, the creation of the state of Israel is grounded in UN General Assembly Resolution 181 (II), which Israel itself has repeatedly invoked to establish and defend its national existence. Resolution 181 (II) stipulates that "all persons within the jurisdiction of the State shall be entitled to equal protection of the laws" (Part 1, Chapter 2, Article 3). This clearly establishes that Israeli obligations under the Covenant extend to non-citizen Palestinians (and all other persons) within Israel's jurisdiction and not just within its territory. In fact, Israel's refusal to apply the Covenant to Palestinians in the WBGS is itself a violation of human rights pertaining to discrimination insofar as Israel does not deny application of the Covenant to Jewish settlers who fall within the same jurisdiction of its occupation.
Israeli claims notwithstanding, parallel human rights treaty bodies have already established the precedent that Israel's jurisdiction extends to the WBGS. For example, the Human Rights Committee concluded in August 1998 that Israel was responsible for human rights in the WBGS 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). Similarly the Committee on the Elimination of Racial Discrimination in March 1998 extended Israeli human rights obligations to "Occupied Palestinian Territory" on the principle that "Israel is accountable for implementation of the Convention in all areas over which it exercises effective control" (CERD A/52/18/Para. P/19(3)).
B. Practical Issues of Jurisdiction under the Interim Agreement
In addition to these precedents, Israel's claim not to exercise effective jurisdiction in the WBGS is refuted by the terms of the Interim Agreement and the facts on the ground. To determine whether Israel still exercises effective jurisdiction in the WBGS, it is necessary to examine the definition of jurisdiction under the Interim Agreement as well as the practical exercise of that jurisdiction in the different categories of territory established under the Interim Agreement.
Chapter 3, Article 17 of the Interim Agreement defines levels of jurisdiction in the WBGS as well as the status of Areas A, B and C (discussed below) during the interim period. Jurisdiction is divided into three components: personal jurisdiction, functional jurisdiction and territorial jurisdiction. Personal jurisdiction covers defined persons, in this case Palestinians in the WBGS. Functional jurisdiction covers defined activities, in this case the transfer of certain powers to the Palestinian Council/Authority. Territorial jurisdiction covers a defined dominion; in this case the transfer of certain territories to Palestinian administration. It is evident that the exercise of effective jurisdiction requires all three components. For example, without territorial jurisdiction over a defined area, the physical ability to practice jurisdiction over defined persons or activities within that area is absent.
In addition, the Interim Agreement creates four categories of territory with different levels of Israeli and Palestinian jurisdiction. These are: 1) territories reserved for final status negotiations that remain under complete Israeli occupation, 2) other areas of Israeli occupation in which Palestinians have a theoretical but not actual claim to limited jurisdiction (C areas), 3) areas of overriding Israeli jurisdiction and subordinate Palestinian jurisdiction (B areas), and 4) areas of full Palestinian jurisdiction encircled by Israeli military control (A areas).
1. Final Status Territories
Israel exercises military occupation in all final status territories including annexed Jerusalem, Jewish settlements in the WBGS, Israeli military areas in the WBGS, and border areas. Israeli de facto jurisdiction in these territories encompasses personal, functional and territorial jurisdiction, whereas Palestinians do not exercise any jurisdiction. (All Israeli jurisdiction over the WBGS is de facto not de jure since these territories are illegally occupied under international law.)
Unlike areas A, B and C (described below), final status territories are excluded from all negotiations during the interim period. Until final status negotiations commence (scheduled for May 1999), these territories will remain under Israel's exclusive jurisdiction without even the possibility of transfer to Palestinian jurisdiction. It is very important to note that Israel has refused to define the extent of military areas and border areas, so it is not possible to calculate the territory or population included within final status territories.
2. C Areas
Israel also exercises military occupation and full personal, functional and territorial jurisdiction over C areas. The Palestinian Council/Authority has merely the claim of theoretical personal jurisdiction over Palestinians in these areas without the functional control or territorial presence necessary to exercise effective jurisdiction, which is possible only upon the withdrawal of Israeli troops and military government. Even Palestinian claims to theoretical jurisdiction in C areas during the interim period are weak because Israel has refused to define the territorial extent of C areas or separate them from undefined military and border areas (described above). This has the effect of merging C areas into the category of final status territories and thereby removing C areas from the potential domain of Palestinian jurisdiction during the interim period. Together these areas constitute more than 73% of land in the West Bank inhabited by 4% of the Palestinian population, and almost 40% of land in the Gaza Strip.
As an occupying power with full jurisdiction, Israel is responsible for implementation of the Covenant in final status areas and C areas.
3. B Areas
In B areas, Israel exercises overriding security jurisdiction (encompassing personal, functional and territorial jurisdiction) enforced through military orders and occupation. The Palestinian Council/Authority exercises only partial jurisdiction, subordinate and secondary to Israeli security jurisdiction (Article 13, para. 2, sec. 8 of the Interim Agreement). These areas constitute about 24% of land in the West Bank inhabited by approximately 70% of the Palestinian population.
This means that while Palestinians administer civil services like police, schools and mail, Israeli troops patrol the areas, surround scattered Palestinian populations with military checkpoints, and exercise total authority over anything that Israel deems as a security risk. The practical effect of overriding Israeli jurisdiction and subordinate Palestinian jurisdiction is amply demonstrated by the fact that, in B areas, Israel has acted unilaterally to expand Jewish settlements, shut down educational facilities, restrict free movement of people and goods through closure, and carry out most of the house demolitions.
As an occupying power with overriding jurisdiction, Israel is responsible for implementation of the Covenant in B areas.
4. A Areas
The Palestinian Authority exercises full de facto and de jure jurisdiction (personal, functional and territorial) over A areas, from which Israeli troops and military government have withdrawn completely. Israel does not and cannot exercise any jurisdiction within these areas except through re-occupation or with Palestinian consent, neither of which has occurred to date. These non-contiguous areas of the West Bank constitute about 3% of land inhabited by 26% of the Palestinian population, and 60% of the Gaza Strip inhabited by most of the Palestinian population.
However, A areas are encircled by the Israeli military and subject to Israeli siege from surrounding troop deployments and checkpoints. Israel imposes frequent closures that confine Palestinians in the West Bank within specific pockets of A areas and prevent them from accessing homes, property, markets, water, land and other resources outside of these isolated pockets of land. While Israel has no jurisdiction within A areas, closures are imposed from occupied Palestinian territory over which Israel exercises full or overriding jurisdiction. The major effect is that Palestinians in A areas are cut off from their own land and resources, resulting in widespread violations of their economic, social and cultural rights. Israel's military confinement of Palestinians in isolated enclaves within their overall territory is legally and factually analogous to the bantustan system established under apartheid South Africa and universally condemned by the international community.
With respect to the impacts of closure, Israel is fully responsible for implementation of the Covenant in A areas. It is also worth noting that under the Interim Agreement Israel is obligated to allow people and goods to move freely between the West Bank and Gaza Strip via four "safe passages" specifically identified by name and route. In the event of a security threat three of the four routes could be closed, but Israel agreed to leave one safe passage open for people and goods under all circumstances. Israel's blatant violation of this provision has not drawn international attention, let alone condemnation, despite the devastating impacts of closure on Palestinian enjoyment of human rights.
