Original: English



Download 144.42 Kb.
Page1/3
Date conversion04.02.2017
Size144.42 Kb.
  1   2   3






United Nations

A/HRC/25/67



General Assembly

Distr.: General

13 January 2014


Original: English
Human Rights Council

Twenty-fifth session

Agenda item 7



Human rights situation in Palestine and other

occupied Arab territories

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk

Summary

The present report is the final report of the current Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Commission on Human Rights resolution 1993/2 A and Human Rights Council decision 2/102. In the report, the Special Rapporteur addresses Israeli settlements in the West Bank, including East Jerusalem, and the wall in the context of the tenth anniversary of the advisory opinion of the International Court of Justice, and considers the policies and practices of Israel in occupied Palestine in light of the prohibition on segregation and apartheid. He also addresses concerns in relation to the deterioration of the human rights situation of Palestinians living under the Israeli blockade in the Gaza Strip.




Contents

Paragraphs Page

I. Introduction 1–9 3

II. The wall and the 2004 advisory opinion 10–21 5

III. Israeli settlements and the fragmentation of occupied Palestine 22–47 8

IV. The Gaza Strip 48–50 14

V. The question of apartheid and segregation 51–77 14

VI. Concluding remarks 78–80 20

VII. Recommendations 81 21



I. Introduction

  1. In his final presentation to the Human Rights Council, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 would like to underscore the importance of this mandate as providing an independent witness to the evolving effects of the continuing occupation of Palestine by Israel. This exposure is centred upon the presentation of information received on the persistence of severe violations of international humanitarian law and international human rights law. Bearing witness provides a record of violations by Israel and its defiant attitude, and challenges the United Nations to take steps to ensure compliance. It should be remembered that the suffering of the people of Palestine is inseparably linked to the partition arrangements initially proposed by the United Nations in 1947, and which were never implemented or revised in a manner that takes full account of the rights of the Palestinian people, above all their inalienable right of self-determination.

  2. It was unfortunate that Israel refused even minimal cooperation with this mandate to the extent of allowing the Special Rapporteur to have access to occupied Palestine during the past six years or of responding to several urgent appeals addressing specific situations of immediate concern that fell within the purview of the mandate. This Special Rapporteur was expelled in December 2008 when attempting to enter Israel to carry out a mission of the mandate to visit occupied Palestine, and detained overnight in unpleasant prison conditions. Such humiliating non-cooperation represents a breach of the legal duty of States Members of the United Nations to facilitate all official undertakings of the organization. Although it has been possible to gain information needed to report on the situation confronting Palestinians living under occupation, non-cooperation deprives the mandate of direct interaction, including the receipt of testimony bearing on international law grievances from representatives of the Palestinian people. It is to be hoped that the next Special Rapporteur to be appointed will receive sufficient backing from the Human Rights Council to induce cooperation from Israel and better protection against defamatory attacks by some non-governmental organizations (NGOs) than was the experience of the current mandate holder.

  3. International Law. An abiding theme of the reports of the Special Rapporteur during the past six years has been the consistent failure of Israel to comply with clear legal standards embodied in the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) and elsewhere in international humanitarian law and international human rights law. This pattern, as will be detailed below, is flagrant in relation to the wall, settlements, East Jerusalem, the Gaza Strip, water and land resources, and the human rights of Palestinians living under occupation. Also relevant is the failure of the United Nations to ensure implementation of the recommendations as to international law contained in two high-profile Human Rights Council reports of 2009 and 2013, respectively those of the United Nations Fact-Finding Mission on the Gaza Conflict (A/HRC/12/48) and of the fact-finding mission to investigate the human rights implications of the Israeli settlements (A/HRC/22/63). To the extent such a pattern is tolerated, it undermines respect for international law.

  4. Palestine. In the light of the General Assembly’s recognition of Palestine as a non-member observer State in Assembly resolution 67/19 of 29 November 2012, it seems appropriate to refer to territory under Israeli occupation as “Palestine” rather than as “Occupied Palestinian Territories”. Such a shift in language also emphasizes the inadequacy of the international law framework available to address a condition of prolonged occupation that has now extended for more than 45 years. Special steps and procedures need to be adopted that will confer rights and establish the rule of law. To sustain indefinitely an oppressive occupation containing many punitive elements also seems designed to encourage residents to leave Palestine, which is consistent with the apparent annexationist, colonialist and ethnic-cleansing goals of Israel, especially in relation to the West Bank, including East Jerusalem.

  5. Corporate responsibility. Recent reports have underscored the potential implications for corporations and financial institutions that engage with and profit from Israeli settlements. The establishment and continued development of settlements is in violation of article 49(6) of the Fourth Geneva Convention, an assessment reinforced by the International Court of Justice in its advisory opinion of 2004 on the wall. Such an initiative has tried at all times to proceed cooperatively with the economic actors involved, and has acknowledged instances of compliance with international law and relevant United Nations guidelines and the encouraging recent indication of governmental and European Union reinforcement of these emergent obligations. This trend also converges with and reinforces the social mobilization of civil society in a variety of initiatives, especially the growing boycott, divestment and sanctions campaign.

  6. Legitimacy war”. In the pursuit of Palestinian rights under circumstances of prolonged occupation, there is increasing reason to believe that despite the authority of international law and the expressed will of States Members of the United Nations, the situation is essentially frozen, if not regressing. In addition, Palestinians seem increasingly disillusioned with armed resistance and with traditional intergovernmental diplomacy. Palestinian hopes for the realization of their fundamental rights have now shifted to engagement in a “legitimacy war”, which involves a worldwide struggle to gain control over the debate about legal entitlements and moral proprieties in the conflict supported by a global solidarity movement that has begun to sway public opinion. The United Nations has a crucial role to play in this process by lending support to Palestinian claims of rights and providing assessments of associated grievances resulting from the violation by Israel of international humanitarian law and international human rights principles and standards.

  7. Language. The Special Rapporteur believes that the language used to consider Palestinian grievances relating to international humanitarian law and international human rights law in Palestine needs to reflect everyday realities, and not remain beholden to technical wording and euphemisms that mask human suffering resulting from violations. It seems therefore appropriate to describe such unlawful impositions on the people resident in the West Bank by reference to “annexation” and “colonial ambitions” rather than “occupation”. Whether these impositions constitute “apartheid” is discussed in more detail below. Such clarifications at the level of language reinforce the contention that it is a matter of urgency to pursue more concerted efforts within United Nations venues to implement the rights of the Palestinian people.

  8. Emergency in Gaza. Developments in the region, combined with an unlawful blockade maintained since mid 2007, has created a serious emergency situation in the Gaza Strip that threatens the entire population. From the perspective of international law, as argued in prior reports (A/HRC/20/32), Gaza remains “occupied”, despite the implementation by Israel of its “disengagement” plan in 2005, due to the control of borders, airspace and coastal waters, and periodic military incursions. The present situation is dire, as massive infrastructural failures cause daily hardship for the population, who are also at risk of epidemics. At the time of writing, with insufficient quantities of fuel reaching Gaza, electricity is available only for short periods, making it impossible for hospitals to provide proper treatment for seriously ill patients suffering from cancer and kidney ailments. The situation is aggravated by persisting tensions between the Palestinian Authority and the governing authorities in Gaza, and by the breakdown of cooperation along the border with Egypt. Egyptian security concerns in Sinai have led to greater restrictions at the Rafah crossing, and to the destruction of the tunnel complex in southern Gaza that had eased some of the difficulties caused by the blockade. Some countries, notably Turkey and Qatar, have responded to this situation by providing emergency relief, but much more assistance is required, including pressure upon Israel to end the unlawful blockade.

  9. Urgency. The stark reality is that the beleaguered occupied people of Gaza, over half of whom are children, are not receiving the protection to which they are entitled under international humanitarian law, which imposes an overall duty on the occupying Power to act in such a manner as to protect the civilian population from harm. Given the failure of Israel to live up to these obligations as set forth in the Fourth Geneva Convention, the United Nations and international society generally is challenged to take urgent action. The principles embedded in the concept of the responsibility to protect would seem to have a special applicability to the emergency conditions currently existing in Gaza that are being brought to the attention of the world by graphic pictures of sewage in the streets; widespread flooding; seasonal cold, including snow; and children entrapped by these conditions.

II. The wall and the 2004 advisory opinion

  1. July 2014 will mark 10 years since the International Court of Justice gave its near unanimous advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory (A/ES-10/273 and Corr.1). The refusal of Israel to implement this assessment of international law by the highest judicial body in the United Nations is cause for serious concern.

  2. The question put to the Court by the General Assembly bears repeating: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, …, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”1 The International Court of Justice was unequivocal in its reply. In summary, it concluded that the construction of the wall in occupied Palestine, including East Jerusalem, and its associated regime, was contrary to international law. The crucial point is that it would not have been unlawful for Israel to build a security wall on an established international border, but to encroach unilaterally on territory occupied in 1967 was a flagrant violation of international law. The Court stated that Israel had a continuing duty to comply with its international obligations in this regard. It found that Israel was obliged to end the illegal situation, cease construction and dismantle the wall in the Occupied Palestinian Territory, and to make reparations for all damage caused as a result of the wall (A/ES-10/273 and Corr.1, para. 145).

  3. In addition to the conclusions addressing the obligations of Israel, the Court stated that all States are obliged not to recognize the illegal situation arising from the wall, and that States parties to the Fourth Geneva Convention were obliged to ensure compliance by Israel with that Convention. Finally, the Court suggested that the United Nations, and especially the General Assembly and the Security Council, should consider further action to overcome this illegal situation resulting from the construction of the wall and its associated regime (ibid., para. 163 (3)(D) and (E)).

  4. In clear defiance of international law, Israel has continued construction of the wall and maintains on its website a map of 30 April 2006 showing its revised route.2 At the time of the advisory opinion, the Secretary-General estimated that approximately 180 km of the wall had been completed (A/ES-10/273 and Corr.1, para. 82). Since that time, parts of the wall have been re-routed.3 In 2013, the Secretary-General reported that approximately 62 per cent of the wall had been completed (A/68/502, para. 22). A further 10 per cent was under construction, and construction of the remaining 28 per cent of the planned route had not yet commenced. Upon completion, the wall is expected to run approximately 708 km.

  5. About 85 per cent of the planned route of the wall lies within the West Bank, and will cut off and isolate 9.4 per cent of the West Bank territory, including East Jerusalem and so-called No-Man’s Land.4 Palestinian communities affected by the wall experience varying degrees of isolation and restrictions on their freedom of movement. The seam zone’s5 associated permit regime requires Palestinians to continually apply for temporary permits to allow them to reside in their home area and carry on aspects of their lives that require entering or exiting the seam zone. In order to have access to farming land beyond Israeli-controlled access gates, leave and return for work, have access to education, health and other services, visit family and friends or arrange for visits to those communities for non-resident Palestinians, prior permission by Israeli authorities is necessary. This permit procedure imposes daily hardships on many Palestinians.6

  6. The Ministry of Defense states that “the Security Fence does not annex territories to the State of Israel, nor will it change the status of the residents of these areas”.7 Israel maintains that the purpose of the wall is to ensure security and protect Israeli citizens from terrorist attacks. In 2011, the Israeli High Court of Justice supported this reasoning regarding security in rejecting NGO petitions which claimed that the permit regime was aimed at expropriating and annexing Palestinian land and which argued that its exclusive application to Palestinians, and not, for example, to settlers in the zone, was discriminatory and comparable to the Pass Laws of apartheid-era South Africa.8 However, the High Court’s assertion does not overcome the conclusion by the International Court of Justice that the grave infringements of the rights of Palestinians caused by the wall in the Occupied Palestinian Territory were not necessary to satisfy legitimate Israeli security requirements (A/ES-10/273 and Corr.1, para. 136).

  7. If protection of Israeli citizens were indeed the only reason for the wall and the associated regime, it begs the question of why Israel continues to support the expansion of illegal settlements in the West Bank, thus moving an increasing number of Israeli citizens into the very area from which it says the risk emanates. That continued settlement on West Bank land, including East Jerusalem, cut off by the wall seems to be creating a fait accompli amounting to de facto annexation, is a grave concern raised by the Human Rights Council, which has demanded that Israel comply with the advisory opinion (Council resolution 22/26).

  8. For Palestinian residents isolated from the rest of the West Bank by the wall, and living under the permit regime and other restrictions, the issue is not only about status, but also about how life is made untenable, inducing more and more Palestinians to abandon their land and leave. By way of illustration, for years, the village of Nabi Samuel reportedly attempted to improve the village school. The village’s location in the seam zone complicates access to outside education. The United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator stated on her 2011 visit to the village: “I am horrified by the way the Barrier affects Palestinians. It divides communities and inhibits the provision of services. I visited a one-room school with no windows and very few facilities, which can’t be improved because the planning rules don’t allow it. This is unacceptable.”9 In September 2013, the village succeeded in installing a container on the school ground to serve as an additional classroom. However, the school is now in danger of losing one of its two rooms for lack of a building permit.10 These acutely burdensome living conditions lead to the displacement of long-term residents. In 2012, the Village Council noted that over the past decade at least 10 families have left the village, which counts some 260 residents.11

  9. Another case in point is the approximately 25 houses making up the village of Al Numan. It is also encircled by the wall, with its only access through an Israeli checkpoint, and restricted from unlicensed building activity, effectively preventing families and the population of the village from growing, as housing needs cannot be met.12 Consequently, the villagers have seen their own number fall while observing the neighbouring illegal Har Homa settlement’s steady growth in occupied territory. In 2006 Al Haq published a case study on the indirect forcible transfer taking place in Al Numan.13 These are but two concrete examples of the obstacles communities face daily. In 2012, the Office for the Coordination of Humanitarian Affairs estimated that approximately 7,500 Palestinians still lived in the seam zone,14 down from an estimated 10,000 people in 2003.15 Upon completion of the wall, an estimated 25,000 Palestinians would be located in the seam zone, a figure which does not include the Palestinian population in East Jerusalem.16

  10. Regular demonstrations against the wall and its associated regime staged in affected villages are often violently suppressed.17 A website for the village of Bil’in, a farming community, describes its struggle thus: “[Bil’in] is fighting to safeguard its land, its olive trees, its resources … its liberty… Supported by Israeli and international activists, Bil’in residents peacefully demonstrate every Friday in front of the work-site of shame’. And every Friday the Israeli army responds with both physical and psychological violence.”18

  11. The impact of the wall on people’s lives is reflected in the progress report of the Board of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory (see A/ES-10/599). As at June 2013, 36,803 claim forms for registration of damage had been received and, of the almost 9,000 claims decided, all but 576 claims were found to meet the eligibility criteria for inclusion in the register. Claimants may submit claims under categories of losses including: agriculture; commercial; residential; employment; access to services; and public resources.19

  12. In his first report to the General Assembly, the Special Rapporteur recommended seeking the assistance of the Security Council for the implementation of the advisory opinion (A/63/326, para. 51(b)). In the face of the unequivocal opinion of the International Court of Justice, and of General Assembly resolution ES-10/15, in which the Assembly called on Israel to comply with the advisory opinion, Israel has defiantly acted as if international law and international judicial authority has no bearing on its policies and behaviour. With the tenth anniversary of the advisory opinion approaching, it is time again to examine what legitimate action by the international community can be taken to achieve compliance with international law, as set out by the International Court of Justice. It is often supposed that because the legal findings of the Court were embedded in an “advisory opinion” it has no bearing on the status of the legal obligations of Israel. This is incorrect. An advisory opinion of the International Court of Justice is as determinative with respect to the authority of international law as a judgement in a dispute between two or more States, but unlike such a judgement between States that can be directly enforced by reliance on Article 94 of the Charter of the United Nations, an advisory opinion cannot be so implemented. However, this difference does not weaken the obligation of Israel to act in accordance with this authoritative determination of international legal obligations, and its failure to do so puts it in breach of international law and responsible for the cumulative harm inflicted on the Palestinian people. It is past time for the United Nations to take action that seeks to protect the rights of the Palestinian people bearing on the sanctity of their territory and its relation to the underlying right of self-determination.

III. Israeli settlements and the fragmentation of occupied Palestine

Facts on the ground

  1. The hallmark of Israel’s 46-year prolonged annexing occupation of Palestine has been the determined pursuit by Israel of settlement construction and expansion in the West Bank, including East Jerusalem, in defiance of its international law obligations (A/68/513, paras. 4–5). This was clearly reflected in the findings of the international fact-finding mission on the implications of Israeli settlements (A/HRC/22/63). Throughout the past six years, the Special Rapporteur has periodically reported on the expansion of settlements and outposts20 in the West Bank, including East Jerusalem (in breach of Israel’s own commitment to freeze settlement expansion, including natural growth under the 2003 Quartet road map), and the impact of associated policies and practices on the human rights of Palestinians living in the occupied territory.21 While the pro-settlement camp claims that “settlements aren’t the problem”,22 this view stands in sharp contrast to the facts on the ground.

  2. Increasing fragmentation of the West Bank, including East Jerusalem, by way of a combination of policies and practices including, but not limited to: the wall; the creation of seam zones; checkpoints; zoning and planning restrictions; demolition of homes and forced evictions (particularly of Bedouin communities in Area C); revocation of residency rights; the designation of vast tracts of land in the West Bank as closed military zones or natural reserves; and the expropriation of land for settler agriculture or industrial zones, may irreversibly disrupt the contiguity of the West Bank, undermining a just and sustainable two-State solution.23

  3. Peace Now, an Israeli NGO, called attention to “Bibi’s settlements boom” in 2013, reporting that tenders had been published for 3,472 new units in settlements, and that plans had been promoted for 8,943 new settlement units in the eight months since the Netanyahu Government took office in March 2013.24 Despite a brief and limited 10-month moratorium on settlement construction in 2010 during the last round of unsuccessful peace talks (which also demonstrated the ability of Israel to halt settlement activity if desired), Israel issued tenders for the construction of 5,302 housing units in the West Bank, including East Jerusalem, during the period from March 2009 to January 2013.25

  4. The timing of announcements regarding settlement expansion has also been provocative, with the two most recent announcements coinciding with the first and second round of Palestinian prisoner releases by Israel in the context of the renewed peace negotiations that began in August 2013. The passage of time under the status quo has not been a neutral factor for Palestinians, as more “facts on the ground” are created daily, strengthening the position of Israel in its preferred mode of power-based negotiations (as opposed to negotiations based on rights and international law). Despite protestations over settlement activity by the United Nations, and notably also by the United States of America26 and the European Union, Israel continues to use State power and resources to promote its defiant settlement policies. The Secretary-General has described Israel as playing a leading role in the construction and expansion of settlements (A/68/513, para. 3).

  5. This latter factor is important to note if the removal of existing settlements were to occur as part of a peace agreement. Approximately half of all settlements in the West Bank can be classified by type as either “quality of life”, or a mixture of “quality of life/ideological”, which tend to be inhabited by predominately secular or mixed settler populations.27 Israel might be able to re-incentivize economic settlers, who were persuaded to move to the West Bank settlements through various government benefits and incentives, to re-settle to the west of the pre-1967 borders of Israel. However, it would have a more difficult time removing the more religious settlers who live in approximately 70 settlements across the West Bank, all the more so as population growth in the settlements (approximately 2.8 per cent) continues to outstrip population growth in Israel.28 It also remains to be seen whether an emergent settler unity precludes implementing a future peace agreement based on inducing economic settlers to return to Israel. Certainly, it may be anticipated that ideological settlers would do their best to prevent such a division and the implementation of such an agreement.

  6. A small minority within the ideologically motivated settlers has been responsible for most of the violence committed against Palestinian men, women and children and against their homes and properties. In the first 10 months of 2013, 361 incidents of settler violence were reported, including 87 resulting in the injury of Palestinians (compared to a total of 366 incidents in 2012).29 Most of these incidents occurred in the Nablus, Ramallah and Hebron governorates. Settler violence is reinforced by a lack of accountability and the related failure of Israeli law enforcement forces to protect vulnerable Palestinian communities (A/68/513, paras. 42-52).

  7. Housing demolitions and displacement of Palestinian communities also kept up with the settlement boom in 2013. From January to October 2013, 533 Palestinian homes and livelihood structures were demolished, including 205 residential structures, displacing 969 people, including 441 children. International donor-funded structures, paid for by taxpayers around the world, were not spared from demolition, and 96 donor-funded structures, including residential, livestock-related and water and sanitation facilities in the West Bank were demolished by Israeli authorities.

  8. Herding communities living in small villages in Area C have been particularly vulnerable to these Israeli practices. In 2013, the United Nations High Commissioner for Human Rights twice spoke out against the demolition of at least three Bedouin and herder communities in the northern Jordan Valley.30 Violations by Israel of international law extend to actively preventing the provision of urgent humanitarian assistance from the international community to the affected Palestinian communities.31
  1   2   3


The database is protected by copyright ©dentisty.org 2016
send message

    Main page