In July 2012, the Government-appointed committee to examine the state of construction in the West Bank, chaired by Supreme Court Justice (Ret.) Edmund Levy (the Levy Committee), issued its report on the legal status of Israeli settlements in the West Bank and, in particular, set forth recommended steps to regularize the construction of “illegal settlements” (outposts) in the West Bank (currently numbering over 100).It concluded that the international laws of occupation, including the Fourth Geneva Convention, did not apply to Israel’s unique situation in Judea and Samaria (the name given the West Bank in internal Israeli discourse and signalling a claimed biblical attachment), and that Israelis had the legal right to settle in the West Bank despite the international consensus.
The conclusions of the Levy Committee not only reflected disregard of international law but also set forth a quasi-legal retroactive endorsement of outposts, formally unauthorized under Israeli law. In fact, the Committee determined that existing outposts were “carried out with the knowledge, encouragement and tacit agreement of the most senior political level, government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement”.32 A previous report of 2005 by Talia Sasson, a former Chief State Prosecutor, concerning the illegal outposts had not gone so far as to implicate the senior-most political echelon of the country, but had found the World Zionist Organization (fully funded from the State Treasury), the Ministry of Construction and Housing, the Civil Administration in Judea and Samaria, and the Assistant to the Defense Minister complicit in the establishment of new unauthorized outposts, and exposed an unelected bureaucracy in charge of creating new outposts without political authorization or oversight.33
The Special Rapporteur notes that while Sasson’s report labelled the outposts as illegal under Israeli law and recommended their dismantlement, developments on the ground since then have shown that successive Israeli Governments preferred to follow the approach endorsed post facto by the Levy Committee. Of 1,708 units constructed in West Bank settlements in the first half of 2013, 180 units were located in outposts (see A/HRC/25/38). In May 2013, Israel announced plans to legalize four outposts in the West Bank (in other words to recognize them as official settlements).34 While the Netanyahu Government never adopted the Levy report, the Knesset Constitution, Law and Justice Committee is expected to debate the report early in December 2013, indicating that it is being taken seriously at the highest levels in Israel.35
“Demographic balance” in East Jerusalem
The status of East Jerusalem remains one of the most contentious issues to be resolved in the Israeli-Palestinian conflict. It is worth recalling that in its resolution 478 (1980), the Security Council affirmed that the Basic Law of Israel proclaiming Jerusalem, including the annexed area, as the capital of Israel constitutes a violation of international law and does not affect the application of the Fourth Geneva Convention in Palestine, including East Jerusalem.
For Palestinians living in East Jerusalem, their situation would not be as precarious if, despite the illegality of annexation, they were treated equally and afforded access to quality education, health care and housing. Instead, Palestinians living in East Jerusalem are regarded as “permanent residents” and subject to a gradual and bureaucratic process of ethnic cleansing.36 This has consisted of revocation of residency permits, demolitions of residential structures built without Israeli permits (often virtually impossible to obtain),37 and forced evictions of Palestinian families, in violation of the basic right to adequate housing, enshrined in the International Covenant on Economic, Social and Cultural Rights.
A 2013 report by the United Nations Conference on Trade and Development on the Palestinian economy in East Jerusalem detailed Israeli policies that have impeded the natural growth of the Palestinian economy. It also noted that Palestinians are made to pay high municipal taxes in return for poor services and disproportionately low public expenditure in East Jerusalem.38 This has been particularly evident with respect to education, characterized by a shortage of classrooms, a high overall dropout rate of 13 per cent among Palestinian schools in East Jerusalem, and a general neglect of the Arab schooling system in comparison to their Jewish counterparts literally metres away in West Jerusalem.39
The situation in East Jerusalem today is a microcosm of the fragmentation of territory taking place across the West Bank. Israel actively seeks to undermine the Palestinian presence to serve its goal of preserving a Jewish majority in East Jerusalem. This has been a policy of Israel for decades, acknowledged by the Jerusalem Municipality, to maintain a demographic balance of approximately 70 per cent Jewish to 30 per cent Palestinian in Jerusalem.40
Since 1996, an estimated 11,023 Jerusalem Palestinians have lost their resident status and right to live in occupied East Jerusalem.41 During the period 2004–2013, 492 housing units were demolished in East Jerusalem, displacing 1,943 Palestinians. These figures account only for officially demolished housing units and do not include homes demolished by some owners after receiving a demolition order to avoid perverse heavy municipal penalties and demolition costs associated with the destruction of their own homes.42
The most problematic plan advanced in East Jerusalem in recent years has been the expansion of settlements and infrastructure around Har Homa, Gilo and Givat Hamatos, as well as the E1 settlement bloc to the east, which threatens to cut off East Jerusalem from the rest of the West Bank.43 Eventual peace depends crucially on ensuring that Palestinian rights in East Jerusalem are not further jeopardized.
Corporate complicity in international crimes
Over the past two years, the Special Rapporteur focused attention on companies involved in business and financial activities related to the Israeli settlement enterprise as well as the possibility of corporate complicity in international crimes related to Israeli settlements in the West Bank, including East Jerusalem.44
The effort to focus on business activities in the settlements was made, in part, to bring a measure of accountability with respect to the emergent human rights obligations of companies in conformity with international law and the Guiding Principles on Business and Human Rights. The Special Rapporteur’s intention was not only to provide a sound legal basis upon which to assess the complicity of businesses in international crimes related to the settlements, but also to clearly set out the risks and associated costs in terms of reputation, as well as the potential legal consequences of doing business in the settlements.
The responses received from some of the 13 companies analysed in an earlier report (A/67/379) were mixed. Nonetheless, there have been a number of recent developments in relation to the involvement of other businesses involved in the settlements to indicate that public pressure and media attention does bring some ethical dividends, and has encouraged Governments to be more vigilant.
Some positive developments in this regard include Royal HaskoningDHV, a Dutch company, which announced in September 2013 its decision to terminate a contract with the Jerusalem Municipality to build a wastewater treatment plant in East Jerusalem.45 In December, Vitens, a Dutch water utility company, decided to cut its ties with Mekorot, the Israeli national water company, citing concerns in relation to the adherence of international laws.46 Earlier, in August 2013, the Swedish-Norwegian bank Nordea excluded Cemex, one of the companies taken up in the Special Rapporteur’s earlier report, from its investment portfolio, due to its extraction of non-renewable natural resources from occupied Palestine.47 Such examples should lead the way for more countries and companies to follow suit, as well as alerting Governments to their responsibility to urge companies subject to their authority to act in accordance with international law.
While due diligence on the part of businesses is an inherent aspect of corporate responsibility, Governments also have the obligation, as noted by the fact-finding mission on settlements, to take measures to ensure that they do not recognize an unlawful situation arising from the illegal activities of Israel.48 In this regard, the European Union guidelines which establish that all agreements between Israel and the European Union for grants, prizes and financial instruments funded by the European Union must now unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967 represents a step in the right direction.
The Special Rapporteur is also encouraged by the recent issuance by the Government of the United Kingdom of Great Britain and Northern Ireland of guidelines for businesses, which for the first time outline the risks of trading with Israeli settlements, and specifically warn of the legal and economic risks stemming from the fact that the Israeli settlements, according to international law, are built on occupied land and are not recognized as a legitimate part of the territory of Israel.49
Trade with the settlements
The diligence shown by the European Union and some of its Member States regarding the responsibility of businesses operating in occupied Palestine naturally leads to the following question: Are the same human rights standards applied by countries when it comes to trade relations with the settlements? If the statements issued by the European Union and the United States protesting the expansion of settlements reiterate their illegality and illegitimacy, then steps should be taken to ensure that related actions also reflect a genuine commitment to human rights and respect for international law, for example by ceasing trade with the settlements starting with a ban on imports of settlement produce.
While produce originating in the Israeli settlements is not entitled to benefit from preferential tariff treatment under the European Union-Israel Association Agreement, fresh agricultural produce exported from the settlements — but falsely labelled as “made in Israel” — can still be found on many supermarket shelves across the European Union due to the voluntary nature of labelling requirements. Considering the fact that the European Union remains one of the most important trading partners for the settlements, with annual exports worth $300 million, a ban on settlement produce would have a significant impact. It should also not be forgotten that trade with settlements is linked to the violation of human rights with respect to Palestinian communities denied access to fertile agricultural land, water and other natural resources.
So long as illegal settlements are supported through trade, statements protesting the expansion of settlements from the main trading partners of Israel will have little resonance on the ground, and third party States will continue to be associated with the violation of human rights in occupied Palestine.
IV. The Gaza Strip
In the space of six years since this Special Rapporteur assumed this mandate, the population of the Gaza Strip has lived through two major Israeli military operations (Cast Lead from December 2008 to January 2009 and Pillar of Defence in November 2012), and endured Israel’s illegal blockade (in place since June 2007). Both conflicts inflicted disproportionate casualties and devastation on the Palestinian civilian population. This has been well documented by the United Nations.50
Since June 2013, the humanitarian situation in Gaza has worsened. In recent months, the destruction by the Egyptian authorities of most underground tunnels, which although problematic had been a lifeline to the residents, has had a particularly serious impact on the availability of fuel at affordable prices in Gaza. This has led to severe power shortages, resulting in shutdowns of sewage treatment facilities, and disruptions to specialized health services, such as kidney dialysis, operating theatres, blood banks, intensive care units and incubators, putting the lives of vulnerable patients in Gaza at risk.51 The frequent closures of the Rafah crossing in recent months have generally prevented access to affordable health care in Egypt, which remains essential given the limitations of the Gaza health system.
The most egregious violations of human rights committed by Israel have been in its enforcement, using excessive force, of arbitrary access to restricted areas at sea and on land, profoundly affecting the lives of Palestinian fishermen and agricultural farmers and households dependent upon them. The more pervasive forms of human rights violations also linked to the blockade have been well documented by the Secretary-General (A/68/502), and include inter alia, severe restrictions on movement into and out of Gaza from Israel and adverse impacts on the rights of Palestinians in Gaza to education, health and work. In addition, severe export restrictions (and limitations on imports) undermine the potential of the Gaza economy, and accentuate the impoverished conditions that prevail in Gaza.52 The recent refusal of Israel to allow exports from Gaza to the West Bank, despite a Dutch donation of a container security scanner, is emblematic of the denial of the right to development in Gaza, and undercuts claims by Israel that its actions are taken to serve genuine security concerns.53
V. The question of apartheid and segregation
In 2011, the Special Rapporteur reiterated the call made by his predecessor in 2007, for a referral to the International Court of Justice for an advisory opinion on the question of whether “elements of the [Israeli] occupation constitute forms of colonialism and apartheid”.54 More precisely, he recommended that the Court be asked to assess the allegations that the prolonged occupation of the West Bank and East Jerusalem possess elements of “colonialism”, “apartheid” and “ethnic cleansing” inconsistent with international humanitarian law in circumstances of belligerent occupation and unlawful abridgement of the right to self-determination of the Palestinian people.55 Since no advisory opinion has been sought following the aforementioned reports of successive Special Rapporteurs, in the present report the Special Rapporteur assumes part of the task of analysing whether allegations of apartheid in occupied Palestine are well founded. He discusses Israeli policies and practices through the lens of the international prohibition of ethnic discrimination, segregation and apartheid.
Apartheid is prohibited under international law, and Israel, as a State and an occupying Power, is bound by this prohibition. Under Protocol I additional to the Geneva Conventions, which is declaratory of international law and therefore widely regarded as universally binding, “practices of ‘apartheid’ and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” are included as grave breaches.56 Further, the International Law Commission has noted that Governments at the United Nations Conference on the Law of Treaties (1968) generally agreed that the prohibitions constituting peremptory norms included apartheid.57 In addition, article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”.58 At the second universal periodic review of Israel in October 2013, South Africa recommended that Israel “prohibit policies and practices of racial segregation that disproportionately affect the Palestinian population in the OPT” (A/HRC/25/15, para. 136.202).
Apartheid involves the domination of one racial group over another, and some may argue that neither Israeli Jews nor Palestinians constitute racial groups per se. However, article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, in its definition of racial discrimination, makes it clear that race is in fact not the sole factor, but that racial discrimination may be based on “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”. The Committee on the Elimination of Racial Discrimination has stressed that under the definition in article 1 “the Convention relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples”.59
The International Convention on the Suppression and Punishment of the Crime of Apartheid, in article 2, provides a detailed definition of the crime of apartheid, providing that it “shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa”, and applies to “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”. The Rome Statute of the International Criminal Court echoes these core elements (art. 7, para. 2(h)) and further specifies that for such acts to constitute “crimes against humanity” they must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7, para. 1). Without prejudice to any possible differences in the elements of apartheid as an international crime and an internationally wrongful act, apartheid will be treated as a single concept for the purpose of the present report, which will be framed around the inhuman acts laid out in article 2(a)–(f) of the International Convention on the Suppression and Punishment of the Crime of Apartheid.60
Acts potentially amounting to segregation and apartheid
Article 2(a) concerns denial of the right to life and liberty of person, including by (i) murder; (ii) serious bodily and mental harm, infringement of freedom, and torture, and (iii) arbitrary arrest and illegal imprisonment. With respect to article 2(a)(i), continuing excessive use of force by Israeli security forces (ISF) and a lack of accountability for violations of international humanitarian law and international human rights law is well-documented by successive United Nations resolutions and reports.61 Palestinians are killed as a result of regular Israeli military incursions into occupied Palestine; lethal use of force against demonstrators; official endorsement of targeted killings; and large-scale military operations.62
According to B’Tselem, between 1987 and 2000 just under 1,400 Palestinians were killed by ISF.63 After the year 2000, deaths of Palestinians caused by ISF accelerated, with more than 6,700 deaths, as at October 2013.64 Of this number, over 3,100 were civilians not involved in hostilities. B’Tselem’s statistics show that during Israel’s “Cast Lead” operation in Gaza, of the 344 children reportedly killed, 318 did not take part in hostilities. During the same operation, of the 110 Palestinian women recorded as killed, two were police officers and the remaining 108 did not take part in the hostilities. During operation “Pillar of Defence”, approximately 100 Palestinian civilians, a third of whom were children, were reportedly killed as a result of ISF actions (A/HRC/22/35/Add.1, para. 6).
Additional deaths were caused by the ISF policy of targeted killing, which resulted in the killing of 369 Palestinians during the period September 2000–December 2013. Moreover, on average, for every person killed as a target of ISF, one or two other persons have been killed in any given operation. Thus, during the same period, 453 Palestinians who were not targets were also killed.65
Individual accounts by former soldiers of the Israel Defense Forces (IDF), published by the Israeli NGO Breaking the Silence, bear witness to Israeli policy in respect to the occupied people: “ ‘Prevention of terror’ is the stamp of approval granted to any offensive IDF action in the Territories, obscuring the distinction between the use of force against terrorists and the use of force against civilians. In this way, the IDF is able to justify actions that intimidate and oppress the Palestinian population overall.”66
Under a simple interpretation, the term murder, as referred to in the International Convention on the Suppression and Punishment of the Crime of Apartheid, signifies the unlawful taking of life. Therefore, the taking of lives — outside the limited circumstances in which international humanitarian law and international human rights law do not absolutely prohibit this — potentially constitutes an element of apartheid, in the context of a systematic and institutional regime in which these unlawful killings form part of acts carried out in order to maintain dominance over Palestinians. The relatively high proportion of civilian casualties caused by ISF in occupied Palestine is notable in this respect.
In regard to article 2(a)(ii) and (iii), detention by Israel of Palestinians is closely linked to the occurrence of torture and ill-treatment. According to the Prisoner Support and Human Rights Association, Addameer, in September 2013, there were some 5,000 Palestinian political prisoners, including 137 administrative detainees.67Many detainees are transferred to prisons in Israel, in violation of the Fourth Geneva Convention (art. 76).68
In 2012, the Committee on the Elimination of Racial Discrimination urged Israel to end administrative detention, which is discriminatory and constitutes arbitrary detention under international human rights law (CERD/C/ISR/CO/14-16, para. 27). Similar recommendations were made by a number of States during the most recent universal periodic review of Israel (A/HRC/25/15). The Committee further recommended that Israel ensure equal access to justice for all persons living in territories under its effective control, noting that Jewish settlers in occupied Palestine are subject to a civil law regime, while a military regime applies to Palestinians in the West Bank, including East Jerusalem.
Despite the absolute prohibition of torture,69 Palestinians detained by Israel continue to be subjected to torture and ill-treatment (A/68/379).70 Methods of torture and ill-treatment reportedly include: sleep deprivation; excessive use of handcuffs; beatings; verbal abuse; stress positions; solitary confinement; humiliation; and threats of killing, sexual assault and house demolitions, against the detainee or his or her family.71
In 1999 the Israeli High Court said that using certain methods of physical pressure for the purpose of “breaking” a detainee are unlawful and that interrogation methods must be fair and reasonable, and respectful of human dignity.72 While representing an important recognition of the illegality of certain methods of torture employed against Palestinian detainees, the decision failed to outlaw torture by allowing the “ticking bomb” or “necessity” defence. According to Addameer, “necessity” is used by interrogators as a blanket defence with little to no accountability.73 The Public Committee against Torture in Israel reported that of 701 formal complaints of torture submitted between 2001 and 2010, none resulted in a criminal investigation.74
Palestinian children are not exempt. In 2013, UNICEF concluded that “Ill treatment … appears to be widespread, systematic and institutionalized”75 in the case of Palestinian children held in the Israeli military detention system. Israeli authorities seem to have taken some limited steps towards meeting the UNICEF recommendations,76 including by piloting test summons in two West Bank areas instead of conducting frightening night arrests of children.77 While this is clearly a needed development, it also shows just how basic the denial and lack of protection of Palestinian children’s rights is under the Israeli military legal regime. By comparison, Israeli settler children in conflict with the law are subject to regular Israeli law. According to Defence for Children International, as at October 2013, 159 Palestinian children were in Israeli military detention.78On average, around 700 children are detained and prosecuted per year, most commonly on charges of throwing stones.79
The regular denial by Israel of the right to life and liberty of significant numbers of Palestinians is reflected in its policies, laws and practices in occupied Palestine.
Article 2(b) refers to the imposition of living conditions calculated to cause a group’s physical destruction in whole or in part. It seems unlikely that the policies, laws and practices of Israel can be said to have as their aim the physical destruction of the occupied people.80
Article 2(c) concerns measures calculated to prevent participation in the political, social, economic and cultural life of the country and the full development of a racial group, including and especially by denying them their rights to work, to education, to leave and to return to their country, to nationality, and to freedoms of movement and residence, opinion and expression, and peaceful assembly and association.
Violations of many of these rights have already been touched on in preceding sections. For instance the violations by Israel of the rights to work, education, freedom of movement and residence, and freedom of expression and assembly have been illustrated in the context of discussing the wall and its associated regime, and policies and laws related to the development of settlements, including in East Jerusalem. The rights to work, to freedom of movement, and to leave and return to one’s country, are particularly relevant to Gaza. In the West Bank, the denial of rights to Palestinians is made possible by the existence of parallel legal systems operating in the same territory: one set of civil and criminal laws for Israeli settlers and another for Palestinian Arabs, subject to Israeli military orders, as well as other laws. While the Israeli High Court of Justice formally exercises judicial oversight of the Israeli administration in occupied Palestine, according to NGOs, case law illustrates a trend whereby major policy decisions of government, e.g. relating to the wall and settlements, tend to be immune from judicial intervention, and that human rights and protection under international humanitarian law have not been adequately upheld by the High Court in its rulings.81 The creation of Israeli legal zones for settlers and the resulting segregation was noted in the 2013 report by the independent fact-finding mission on settlements (A/HRC/22/63). The Committee on the Elimination of Racial Discrimination in 2012 expressed that it was “extremely concerned” at policies and practices amounting to de facto segregation and that it was “particularly appalled at the hermetic character of the separation of the two groups” (CERD/C/ISR/CO/14-16, para. 24).
It is clear that Israeli measures, in the form of policies, laws and practices, have the effect of preventing Palestinians from full participation in the political, social, economic and cultural life of Palestine and arguably also prevent their full development in both the West Bank and the Gaza Strip.
Article 2(d) refers to measures designed to divide the population along racial lines including by the creation of separate reserves and ghettos for the members of a racial group or groups, and the expropriation of landed property. The expropriation of Palestinian land is an obvious part of the expansion of settlements and of the construction of the wall. The fragmentation of Palestinian land and creation of separate reserves and enclaves, including the plans threatening to cut off East Jerusalem from the rest of the West bank, is well documented (A/HRC/22/63). The final conclusions of the Russell Tribunal on Palestine state: “Israel has through its laws and practices divided the Israeli Jewish and Palestinian populations and allocated them different physical spaces, with varying levels and quality of infrastructure, services and access to resources. The end result is wholesale territorial fragmentation and a series of separate reserves and enclaves, with the two groups largely segregated. The Tribunal heard evidence to the effect that such a policy is formally described in Israel as hafrada, Hebrew for ‘separation’ ”.82 The Special Rapporteur has previously drawn attention to the dual system of roads in the West Bank, as a clear example of segregation, where Palestinians are largely relegated to alternative roads and forced to take long detours (A/HRC/16/72, paras. 20–22).
It seems incontestable that Israeli measures do divide the population of the Occupied Palestinian Territory along racial lines, create separate reserves for Palestinians and expropriate their land.
Article 2(e) refers to exploitation of labour. There exist historical reports83as well as current campaigns and reports84 which address poor working conditions of Palestinian citizens working in Israel or in settlements. However, it is noted that there has been a sharp drop in Israeli use of Palestinian workers since the 1990s, especially as it is now impossible for Gazans to work in Israel and since in the West Bank the construction of the wall has further diminished the number of Palestinians working in Israel or for Israeli employers.85
Article 2(f) concerns persecution of those who oppose apartheid. This provision potentially relates to a wide range of human rights violations against Palestinians in the Occupied Palestinian Territory, who as a people desire self-determination and oppose the segregation, restrictions and discriminatory regime imposed by Israel on them. In this sense, the punitive response often meted out to those who demonstrate against the wall and its associated regime, or more generally oppose Israeli violations of human rights, arguably fall under this provision.
An individual case in point concerns the Palestinian human rights defender Issa Amro, who is a founder of the NGOs Youth Against Settlements and Hebron Defenders. In 2012, Mr. Amro was arrested and detained 20 times without charge.86 At the time of writing, he had been detained multiple times in 2013 and had been hospitalized, allegedly following a beating by ISF while in detention. In August 2013, a number of special rapporteurs, including this Special Rapporteur, expressed deep concern at the alleged ongoing judicial harassment, intimidation and abusive treatment of him. According to the Special Rapporteur on the situation of human rights defenders: “This is an unacceptable campaign of harassment, intimidation and reprisals against Mr. Amro, and other human rights defenders who peacefully advocate for the rights of Palestinians in the West Bank, including by cooperating with [United Nations] human rights bodies.”87
An example of an Israeli citizen, belonging to the Druze minority, who has reportedly been imprisoned for his conscientious objection to serving in the Israeli army is Omar Saad. In an open letter to the Prime Minister and Minister of Defense he explained: “I couldn’t imagine myself wearing military uniform and participating in the suppression of my Palestinian people”. He asked: “How can I be a soldier standing at Qalandia checkpoint or any other checkpoint, after I experienced the injustices at these checkpoints? How can I prevent someone from Ramallah to visit his city, Jerusalem? How can I guard the apartheid wall? How can I be a jailer to my own people while I know that the majority of prisoners are freedom prisoners and seekers of rights and freedom?”88
It is strongly arguable that those who oppose Israeli measures amounting to apartheid risk persecution because of their opposition.