Applicability of the Covenant in the Occupied Palestinian Territories (OPT)

Background

Israel, which ratified the International Covenant on Economic, Social & Cultural Rights in 1992, has systematically refused to extend its application to Palestinians in the Occupied Palestinian Territories (OPT) living under Israeli control. Such refusal is consistent with Israel’s longstanding policy of openly rejecting application of universal international law principles to its treatment of Palestinians.

November-December 1998

In its report to the Committee’s 19th session, Israel rejected both the application of the Covenant to the OPT and also its own exercise of effective jurisdiction over the OPT based on the following 2 arguments:

• Israel argued that its human rights obligations do not extend beyond “the territory of the State of Israel” and therefore do not apply to the OPT.
• Israel argued that it “no longer exercises effective jurisdiction” in the OPT be virtue of having “transferred actual authority and responsibility for over 90% of the population…to the Palestinian Council/Authority” under the Oslo agreements. Corollary to this second argument, Israel claimed that “the Palestinian Council/Authority now enjoys exclusive responsibility in the whole of the West Bank and Gaza Strip…in respect to the vast majority of issues that fall within the scope of this Covenant.”

The Committee rejected Israel’s argument, stating in its Concluding Observations of 4 December 1998 that “…the Committee’s view [is] that the Covenant applies to all areas where Israel maintains geographical, functional or personal jurisdiction” (E/C.12/1/Add.27, para 6).

Pursuant to this determination, the Committee called for “the State party to provide additional information on the realization of economic, social and cultural rights in the occupied territories, in order to complete the State party’s initial report and thereby ensure full compliance with its reporting obligations” (E/C.12/1/Add.27, para 32).

April 2001

In a letter dated 20 April 2001 the Permanent Mission of Israel sent a letter to the Committee reiterating its earlier arguments and stating that:

Israel has consistently maintained that the international human rights treaties, including the ICESCR, do not apply to areas which are not subject to its territory and jurisdiction…Secondly, pursuant to the Israeli-Palestinian Interim Agreement of 1995, and the consequent documentation and undertakings of the PLO, the overwhelming majority of powers and responsibilities in all civil spheres (including economic, social and cultural) as well as a variety of security issues, have been transferred to the Palestinian Council, which in any event is directly responsible and accountable vis-à-vis the entire Palestinian population of the West Bank and the Gaza Strip with regard to such issues. In light of this changing reality and the jurisdiction of the Palestinian Council in these areas, Israel cannot be internationally responsible for ensuring human rights in these areas.

Refuting Israel’s arguments against applicability of the Covenant in the OPT

Israel’s claim that the Palestinian Council is “directly responsible and accountable vis-à-vis the entire Palestinian population of the West Bank and the Gaza Strip” could not be farther from the truth.

As the Committee recalls, the OPT are divided into 3 areas (A, B and C) with Israel retaining full civil and security control over area C, with Palestinian civil control and joint Israeli and Palestinian security control in area B and with full Palestinian civil and security control in area A.

As the accompanying map demonstrates, after the last redeployment of Israeli troops from the OPT in March 2000 area A (full Palestinian control) is the smallest area of the West Bank comprising only 17.1%. Area C (where Israel exercises full control) is the largest area comprising 59% of the West Bank. When areas B and C are combined, Israel has full or joint military control over 82.9% of the West Bank.

While Israel has argued that it no longer exercises effective control over A areas of the OPT, the Human Rights Inquiry Commission found that “The argument that Israel is no longer an occupying Power…is untenable…The test for the application of the legal regime of occupation is not whether it the occupying Power fails to exercise effective control over the territory, but whether it has the ability to exercise such power, a principle affirmed by the United States Military Tribunal at Nurenberg in…1948. The Oslo Accords leave Israel with the ultimate legal control over the OPT.” (E/CN.4/2001/121, para 41)

Furthermore, since the beginning of the second intifada on September 28, 2001, Israel has clearly demonstrated that they regard the entire area of the OPT as open territory for the Israeli military, and that they have de facto jurisdiction over the OPT. In a much-publicized military incursion, on April 11, Israeli forces entered the Khan Younis section of the Gaza Strip, located in Area A. The Israeli forces proceeded to bulldoze at least 31 homes in Al Gharbi refugee camp. On April 14, Israeli forces entered Rafah in the Gaza Strip, also located in Area A, and demolished 16 more houses.

Israel’s argument that the Covenant does not apply beyond its “territory”

• defies logic in that Israel is the only member state of the UN to refuse to define its own borders in order to justify the continued expansion of its claimed territory. Furthermore, Israel does not deny its jurisdiction over Israeli settlers and settlements located in the OPT. In its Concluding Observations from 1998, the Committee “note[d] with concern that the Government’s written and oral reports included statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied territories but that the Palestinian population within the same jurisdiction areas were excluded from both the report and the protection of the Covenant.” (para 8)

• defies common sense in light of Israel’s well-documented policies of military siege and crippling of the Palestinian economy with undeniably negative impacts on the enjoyment of economic, social and cultural rights in the OPT.

• defies established laws and precedents

General Assembly Resolution 181 (II) of 1947, which provides the juridical basis for Israel’s existence, 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.

• More importantly, every human rights treaty monitoring body considering this issue has determined that Israel’s jurisdiction extends to the OPT.

In August 1998 the Human Rights Committee concluded that Israel was responsible for 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).

In March 1998 the Committee on Elimination of Racial Discrimination 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)).

Conclusion
Not only has Israel refused to accept the applicability of the Covenant in the OPT, but they have simultaneously refused to accept the jurisdiction of the Committee in interpreting the applicability of the Covenant. Israel is the only State party who has refused to accept the applicability of the Covenant in part of the territory under its effective jurisdiction. As a consequence, Israel has also refused to conform to the procedures of the Committee by not supplying the “additional information” on the realization of ESCR in the OPT.

Such contempt for the procedures of the Committee is consistent with Israel’s general policy of rejecting the application of international law to its policies in the OPT and undermining UN efforts to uphold human rights and the rule of law. We urge the Committee not only to reaffirm the applicability of the Covenant to the OPT, but also to condemn Israel’s repeated refusal to acknowledge such applicability as an attack against the integrity of the Committee and its role in interpreting the Covenant.