None of the human rights violations discussed in the context of possibly constituting “inhuman acts” for the purpose of the International Convention on the Suppression and Punishment of the Crime of Apartheid or the Rome Statute can be said to be isolated events. Rather, their commission reflects systematic and discriminatory Israeli policies, laws and practices, which determine where in the occupied land Palestinians may or may not travel, live and work. Laws and policies have also institutionalized just how lightly a civilian Palestinian life may be weighed, when placed on the scales against claims of overarching security concerns, contrasting with the legal protection of the Israeli constitutional system given to unlawful Israeli settlers. The combined effect of the measures designed to ensure security for Israeli citizens, to facilitate and expand settlements, and, it would appear, to annex land, is hafrada, discrimination and systematic oppression of, and domination over, the Palestinian people.
VI. Concluding remarks
Through prolonged occupation, with practices and policies which appear to constitute apartheid and segregation, ongoing expansion of settlements, and continual construction of the wall arguably amounting to de facto annexation of parts of the occupied Palestinian territory, the denial by Israel of the right to self-determination of the Palestinian people is evident. The Draft Articles on Responsibility of States for Internationally Wrongful Acts provide guidance as to the consequences of serious breaches of peremptory norms under international law. In this respect there is authority89 to suggest that the following prohibitions have attained the status of peremptory norms: aggression through military occupation and imposition of military blockades on ports and coasts,90 racial discrimination and apartheid, and torture. In addition, the right to self-determination itself has been recognized as a peremptory norm which applies erga omnes.91
Under article 40, paragraph 2, of the Draft Articles, for breaches of peremptory norms to be “serious” they must “involve a gross or systematic failure of the responsible State to fulfil the obligation”. Without prejudice to an authoritative determination of whether the breaches of the discussed peremptory norms qualify as “serious”, it is noted that the violations discussed in the context of the prolonged occupation appear deliberate, organized, institutionalized and longstanding. In the commentary, the International Law Commission considers it likely that competent international organizations, including the Security Council and the General Assembly will address such serious breaches. The implications for Member States for serious breaches of this nature include an obligation to cooperate to bring an end to breaches, and an obligation not to recognize or maintain the illegal situation.92
Finally, from the point of view of international criminal law, with the General Assembly’s recognition of Palestinian statehood, the opportunity for Palestine to accept the jurisdiction of the International Criminal Court is now clear. While a declaration was lodged by the Palestinian Minister of Justice in 2009 purporting to accept its jurisdiction “for acts committed on the territory of Palestine since 1 July 2002”,93 it seems the Court’s decision of 3 April 2012 on the question of jurisdiction94 had the effect of closing the preliminary examination.95 An acceptance of jurisdiction would potentially bring a measure of accountability for key individuals, and address violations related to the crime of apartheid and other issues flowing from the more than 400 communications on crimes allegedly committed in Palestine, received by the Office of the Prosecutor of the International Criminal Court since 2009.96
In this, his final report, the Special Rapporteur takes the opportunity to reiterate some past recommendations and add several new ones, namely that:
(a) Palestinian legal rights, including the right of self-determination, be fully respected and implemented in attempts to reach a peaceful and just resolution of the conflict between these two peoples;
(b) The General Assembly request the International Court of Justice to issue an advisory opinion on the legal status of the prolonged occupation of Palestine, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and the imposition of a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem, and further assess allegations that the prolonged occupation possesses legally unacceptable characteristics of “colonialism”, “apartheid” and “ethnic cleansing”;
(c) The Human Rights Council appoint an expert group to propose a special protocol to the Fourth Geneva Convention with the specific purpose of proposing a legal regime for any occupation that lasts for more than five years;
(d) The international community comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from the settlements of Israel and other unlawful Israeli activities, and take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians. Member States should consider imposing a ban on imports of settlement produce;
(e) Future investigations consider whether other foreign corporate connections with unlawful occupation policies additional to settlements (e.g. separation wall, Gaza blockade, house demolitions, excessive use of force) should not be also deemed “problematic” under international law, and treated in a manner analogous to the recommendations pertaining to settlements;
(f) The Government of Israel cease expanding and creating settlements in occupied Palestine, start dismantling existing settlements and returning its citizens to the Israeli side of the Green Line, provide appropriate reparations for the damage due to settlement and related activity since 1967, and act diligently to protect Palestinians living under Israeli occupation from settler violence;
(g) The Government of Israel forthwith lift the unlawful blockade of Gaza, cease military incursions, allow Gazans to benefit fully from their natural resources situated within their borders or off the coast of Gaza, and take account of a deepening emergency in Gaza;
(h) The Human Rights Council pay increased attention to the failure by Israel to cooperate with the normal functioning of the United Nations by way of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967,97 and to the protection of Special Rapporteurs from defamatory attacks diverting attention from substantive issues integral to the mandate.
1 General Assembly resolution ES-10/14.
2 See www.securityfence.mod.gov.il/Pages/ENG/route.htm.
3 Some decisions of the Israeli High Court have reconnected communities with the West Bank. Office for the Coordination of Humanitarian Affairs office in the occupied Palestinian territory (OCHA-oPt), Barrier Update (July 2011), p. 5.
4 See www.ochaopt.org/documents/ochaopt_atlas_barrier_affecting_palestinians_december2011.pdf.
5 A designated “closed military zone” between the wall and the Green Line.
6 See HaMoked: Center for the Defence of the Individual, “The permit regime: human rights violations in West Bank areas known as the ‘seam zone’ ” (2013). www.hamoked.org/files/2013/1157660_eng.pdf.
7 See www.securityfence.mod.gov.il/Pages/ENG/route.htm.
8 OCHA-oPt, Barrier Update, p. 8; HaMoked, “The permit regime”, pp. 14–15. See also Virginia Tilley (ed.), Beyond Occupation (2012), pp. 151 155.
9 OCHA, Barrier Update, p. 14.
10 Documentation collected by OHCHR.
11 See www.unrwa.org/galleries/photos/nabi-samuel-“we-are-living-inside-prison.
12 See www.alhaq.org/advocacy/topics/wall-and-jerusalem/594-visiting-a-ghost-town-drawing-attention-to-the-plight-of-al-numan-village.
13 Available from www.alhaq.org/10yrs/images/stories/PDF_Files/2%20Al-Numan%20Village%20-%20a%20case%20study%20of%20indirect%20forcible%20transfer%20-%20November%202006.pdf.
14 OCHA-oPt, “The humanitarian impact of the barrier” (July 2012), p. 1 (www.ochaopt.org/documents/ocha_opt_barrier_factsheet_july_2012_english.pdf).
15 The Special Rapporteur believes that both the re-routings of sections of the wall and Palestinians leaving due to the wall and its associated regime have contributed to the decrease in numbers.
16 OCHA-oPt, Barrier Update, p. 11.
17 See Palestinian Grassroots Anti-apartheid Wall Campaign, www.stopthewall.org/2013/04/07/further-suppression-demonstrations-occupation; B’Tselem, www.btselem.org/demonstrations; and the Russell Tribunal on Palestine, Findings of the South Africa Session (2011).
18 See www.bilin-ffj.org/index.php?option=com_content&task= blogcategory&id=15&Itemid=34.
19 Rules and Regulations Governing the Registration of Claims, art. 11, para. 1. Available from www.unrod.org/docs/UNRoD%20Rules%20and%20Regulations.pdf.
20 Outposts are settlements which, although often established with some kind of Government support, are not officially recognized under Israeli law.
22 See www.jpost.com/Opinion/Editorials/Settlements-arent-the-problem-330306.
23 A/HRC/25/38, A/HRC/25/40, A/68/502 and A/68/513.
24 See http://peacenow.org/Bibis%20Settlements%20Boom%20-%20March-November%202013%20-%20FINAL.pdf.
25 See http://peacenow.org.il/eng/sites/default/files/summary-of-4-years-of-netanyahu-government.pdf.
26 See www.haaretz.com/news/diplomacy-defense/1.556645; www.un.org/News/Press/docs/2013/ sgsm15427.doc.htm.
27 Among 136 West Bank settlements listed by Peace Now, 25 settlements fall under the type “quality of life”, 35 under the type “quality of life/ideological”, 70 under the type “ideological” and six under the type “ultra-orthodox” (see http://peacenow.org.il/ eng/content/settlements-and-outposts).
28 Palestinian Centre for Human Rights submission to Special Rapporteur, 22 November 2013.
29 See www.ochaopt.org/documents/ocha_opt_the_humanitarian_monitor_2013_11_25_english.pdf.
30 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13662&LangID=E and www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13786&LangID=E.
32 See http://unispal.un.org/UNISPAL.NSF/0/D9D07DCF58E781C585257A3A005956A6.
33 See www.mfa.gov.il/mfa/aboutisrael/state/law/pages/summary%20of%20opinion%20concerning%20 unauthorized%20outposts%20-%20talya%20sason%20adv.aspx.
34 See www.haaretz.com/news/diplomacy-defense/israel-to-legalize-four-west-bank-settlement-outposts-slated-for-demolition-1.524291.
35 See www.jpost.com/Diplomacy-and-Politics/Knesset-panel-to-debate-Levy-Report-333137.
36 A/65/331, para. 14, and A/HRC/20/32, para. 32.
37 A/68/513, paras. 30–33.
38 See http://unctad.org/en/PublicationsLibrary/gdsapp2012d1_en.pdf.
39 See www.acri.org.il/en/2013/09/02/ej-edu-report-13.
40 “EU Heads of Mission Jerusalem Report 2012”.
41 Submission to Special Rapporteur by the Civic Coalition for Palestinian Rights in Jerusalem (November 2013).
42 At 30 November 2013 (www.btselem.org/planning_and_building/east_jerusalem_statistics).
43 “EU Heads of Mission Jerusalem Report 2012”.
44 A/67/379, A/HRC/23/21, A/68/376.
45 See https://www.un.org/apps/news//story.asp?NewsID=45812&Cr=palestin&Cr1=.
46 See www.jpost.com/Diplomacy-and-Politics/Dutch-firm-severs-ties-with-Mekorot-over-West-Bank-policy-even-as-Israel-Jordan-PA-sign-major-water-deal-334597.
47 Palestinian BDS National Committee, submission to Special Rapporteur (November 2013).
48 A/HRC/22/63, paras. 116–117.
49 See www.theguardian.com/world/2013/dec/09/uk-government-warns-over-business-israeli-settlements.
50 A/HRC/12/48, A/HRC/22/35/Add.1 and A/HRC/23/21.
51 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14028&LangID=E.
52 See www.cogat.idf.il/Sip_Storage/FILES/0/4320.pdf.
53 See www.haaretz.com/news/diplomacy-defense/.premium-1.562465.
54A/HRC/16/72, para. 8, A/HRC/4/17, p. 3.
55 A/HRC/16/72, para. 32(b).
56 Art. 85(4)(c), A/HRC/16/72.
57 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), arts. 40–41 and commentaries.
58 Regardless of the possibility that the Convention’s inclusion of apartheid applies exclusively to South Africa, the Convention prohibits all forms of racial segregation. See Committee on the Elimination of Racial Discrimination, general recommendation No. 19 (1995).
59 General recommendation No. 24 (1999), para. 1.
60 Israel is not a party to the Convention and it is debated whether it was intended to apply exclusively to South Africa. Nonetheless, it continues to inform the prohibition of apartheid in international law.
61 E.g. A/68/502, A/67/372, A/66/356, A/65/366, A/HRC/22/35; General Assembly resolution 67/118; and Human Rights Council resolutions 22/28 and 19/16.
66 Israeli Soldier Testimonies2000 2010, p. 26 (www.breakingthesilence.org.il/testimonies/publications).
67 See www.addameer.org/einside.php?id=9.
68 See www.addameer.org/etemplate.php?id=302.
69 Draft Articles.
71 See www.addameer.org/etemplate.php?id=294 and www.stoptorture.org.il/en/skira1999-present.
72 See www.btselem.org/torture/hcj_ruling.
73 See www.addameer.org/etemplate.php?id=294.
74 Accountability Still Denied (2012), p. 4 (www.stoptorture.org.il/files/PCATI_eng_web.pdf). The formal complaints may not be representative of the actual number of victims.
75 Children in Israeli Military Detention, p. 1 (www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_ Military_Detention_Observations_and_Recommendations_-_6_March_2013.pdf).
76 See www.unicef.org/oPt/UNICEF_oPt_Children_in_Military_Detention_Bulletin_No_1_ October_2013.pdf.
77 See also A/68/379 and CRC/C/ISR/CO/2-4.
78 See www.dci-palestine.org/content/child-detainees.
79 See www.addameer.org/etemplate.php?id=296.
80 The United Nations has questioned whether Gaza will be a liveable place in 2020 (“Gaza in 2020: A Liveable Place?” 2012). Considering the situation in Gaza, the Russell Tribunal found that Israeli policies aimed at causing displacement of Palestinians, rather than their physical destruction.
81 Information from Diakonia.
82 Russell Tribunal, Findings, para. 5.39.
83 See http://unispal.un.org/UNISPAL.NSF/1ce874ab1832a53e852570bb006dfaf6/57c45a3dd0d46b 09802564740045cc0a?OpenDocument.
84 See www.business-humanrights.org/Links/Repository/1023856, http://www.dci-palestine.org/ documents/palestinian-children-invisible-workers-israeli-settlements.
85 Russell Tribunal, Findings, para. 5.40.
86 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13626&LangID=E.
88 See www.wri-irg.org/node/20565.
89 Draft Articles, chap. III.
90 General Assembly resolution 3314(XXIX).
91 Draft Articles, chap. III, commentary.
92 Ibid., art. 41.
93 See www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/ 20090122PalestinianDeclaration2.pdf.
94 See www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf.
95 See www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20 Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20 Activities%202013.PDF.
96 See www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20 prosecutor/comm%20and%20ref/pe-cdnp/palestine/Pages/palestine.aspx.
97 In 2013, the Special Rapporteur joined 71 other independent experts in an appeal to Member States to cooperate with their mandates (www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=14083&LangID=E).