Palais des Nations - 03 July, 2018
Geneva International Centre for Justice (GICJ) with International Organisation for the Elimination of All Forms of Racial Discrimination (EAFORD), International-Lawyers.Org, and Euro-Med Monitor for Human Rights organised and participated in a side-event at the Thirty-Eighth Regular Session of the Human Rights Council. The event took place from 12h00 to 13h30 on 3rd July, 2018 in Room XXIII at the Palais des Nations.
Concept note of the side-event:
|Israel’s prolonged occupation of the Palestinian territory involves systematic human rights abuses, including collective punishment, routine use of excessive lethal force, and prolonged administrative detention without charge or trial for hundreds. It builds and supports illegal settlements in the occupied West Bank, expropriating Palestinian land and imposing burdens on Palestinians but not on settlers, restricting their access to basic services and making it nearly impossible for them to build in much of the West Bank without risking demolition. Israel’s decade-long closure of Gaza have made the lives of 1,9 million Palestinians living there unbearable. For that Gaza is described as the world’s largest open-air prison.
This side event aims to bring to light the atrocities of the occupation, characterised by horrendous and unending human rights violations resulting in the continuous and systematic suffering of the Palestinian people. Through its constant non-cooperation with the United Nations System in general and international human rights mechanisms in particular, Israel has not only robbed the Palestinian people of their right to self-determination, but also repeatedly implements new and improved measures to deepen the suffering of the Palestinians. Our organisations thus call upon the international community to take a stand against this blatant and long-standing human rights catastrophe through this side event.
Mr. Michael Lynk: Special Rapporteur on the situation of Human Rights Situation in the Palestinian Territory Occupied since 1967. Via Skype.
Ms. Aroub Soubh: TV program presenter, she is the official Media Spokesperson for the Jordanian coalition, My Nationality is the Right of My Family, and Consultant at the Euro-Mid Human Rights Monitor.
Ms. Daniela Donges: Civil peace worker for Palestine, a former member of GICJ. She follows on the ground information concerning the situation in Palestine.
Ms. Eman Zuiter: A Human Rights researcher who works with Geneva International Centre for Justice since 2016 as well as with the Euro-Med Monitor since 2015.
Mr. Mutua Kobia: Senior Human Rights Officer at Geneva International Centre for Justice, additional representative of EAFORD at the United Nations.
Ms. Aroub Soubh: “The Blockade of Gaza as a form of Apartheid”
Ms. Soubh was the first speaker to start the discussion and began by enumerating that Apartheid is both territorial segregation as well as a ‘matrix of control’ imposed on a group of people for who they are.
She went on to explain that since the occupation began in 1967, the Palestinian people have lived in four so-called ‘domains’:
- Civil law with special restrictions, governing Palestinians who live as citizens of Israel;
- Permanent residency law governing Palestinians living in the city of Jerusalem;
- Military law governing Palestinians living under conditions of belligerent occupation in the West Bank and Gaza Strip since 1967, including those in refugee camps;
- Policy to preclude the return of Palestinians, whether refugees or exiles, living outside the territory under Israel’s control.
Following this, Ms. Soubh rightly termed the blockade of Gaza a humanitarian crisis, asserting that the State of Israel's restrictions on entry to buildings prevent the repairing of Gaza's sole power plant as well as of houses destroyed during Israeli offensives in the area. Israel continues to control entry to and exit from Gaza by land, sea and air, and has been subjecting Palestinians to a suffocating blockade, which constitutes an unprecedented form of collective punishment in stark violation of international humanitarian law.
Speaking about the economic collapse, she cited that Gaza’s economy has effectively been in recession since the beginning of the blockade, with the private sector receiving the largest share of losses due to the restrictions imposed by the Israeli authorities on the movement of businessmen and traders, as well as many companies and private enterprises – which make up the only source of income for a large portion of Gaza population – being targeted.
Before providing some final recommendations, Ms. Soubh touched upon the electricity crisis and its ramifications, in that the water and sanitation, sewage, healthcare, and education are severely and adversely affected. For hospitals in Gaza, constant instability of power supply only deteriorated the quality of the healthcare services available, with the high cost of running a generator forcing small businesses, especially startups, to close within a short period of time.
To conclude her comprehensive assessment of the blockade of the Gaza strip, she proposed the following recommendations:
- First, to the State of Israel, to put end to all forms of apartheid practices against the Palestinian civilian population and an unconditional end to the blockade on the Gaza Strip, as well as compensation to all those who were affected.
- To the Israeli government, to work in right earnest to end its long-term occupation of the Palestinian territories as stipulated in UN General Assembly Resolution 194.
- Finally, to the international community, urging it to exert effective pressure on Israel to immediately end its blockade of the Gaza Strip and its ongoing occupation of the Palestinian territory, as all it does is further fuel conflict and lead to unnecessary violence and escalation of tensions in the region.
Ms. Daniela Donges: “Observations of Human Rights situation on the Ground and Laws that Entrench the Occupation”
Ms. Daniela Donges was the second speaker to take the floor and she started her presentation by saying that since 1946, she notes that Palestine is losing slowly and illegally its territory. Palestine is becoming more and more invisible on the map, because of the illegal, brutal, violent and shameful occupation of Israel in the region. Israel is creating settlements in Palestine to fully control the region.
For example, Israel constructed a wall with a military checkpoint in Al Walaja to isolate the village. A lot of residents became refugees. The creation of that wall is a violation of the international Law.
● Khan Al Ahmar is a village in the Jerusalem Governorate of the West Bank where people live in tents and huts. There are a lot of Bedouin and children. The village is located between the Kfar Adumimm and the Israeli settlements of Ma’ale Adumim. There is a huge difficulty to access the school. The Palestinian ministry of education constructed a school in that area, but the Israeli Civil Administration ordered to demolish the school. Buildings were demolished in 2010 by Israel, because the said that these buildings were illegal so, in September 2012 the Israeli government had a plan to relocate residence to the Jordanian valley, but the residence strongly refused that plan.
Furthermore, there are laws that entrench the occupation:
1. Demolition orders against unauthorized structures 1539-2003
2. Law for the Regulation of Settlement 5777-2017
3. Order concerning the Removal of New Structures 1797-2018
4. Administrative Affaires Courts Law 5768-2018
Regulations concerning the transfer of goods:
● During a discussion at the Knesset on 27 June 2017 the director of the Civil Administration supervision unit said that there are 500 movable structures in the administration’s warehouses that were confiscated from Palestinians. He stated that all it requires to dismantle and confiscate a movable structure is a formal statement by one of the supervision unit’s employees. There is no other administrative or legal procedure needed.
● The Law for the regulation of settlement in Judea and Samaria, 5777-2017: February 6, 2017, the Knesset passed a law for the on which Israeli settlements were built. This law gives the opportunity to settlers to remain in their homes.
● Order concerning the removal of New Structures: May 9, 2018: The Israeli military published military order 1797 The new order gives the Israeli army’s “civil administration” to target and demolish Palestinian structures in area C within 96 hours, whatever may be the status of the land or the issuing of building permits. The new order is aimed at preventing International aid from any legal action against future Israeli orders, which has proven quite successful in preventing or delaying illegal demolitions in the past.
● Administrative affairs courts Law 5768 – 2018: The human rights organizations must flood the Israeli court system with a lot of petitions against the demolition of buildings.
Palestinians in the West Bank are banned from attending and organizing a procession, assembly or vigil of 10 or more people for a political purpose. Anyone breaching the order faces imprisonment for up to 10 years and/or a hefty fine. Israel attack with threats and intimidation against Palestinian activists. They also force NGO by a new law to reveal foreign funding. Israel put in Jail anyone who tries to speak against their acts in the West Bank or people who protest against the creation of the wall.
Ms. Eman Zuiter: “Excessive Use of Force against Peaceful Protestors”
Ms. Eman was the third speaker to take the floor and began her presentation by the great march return of the peaceful civilian protests on the 30th of March that continued every Friday. It is formed to demand the end of 12 years of blockade and to enforce the resolution 194 (the right of return). Israel was using live bullets, explosive bullets and toxic Gas against these protesters.
• Israel targeted the medical personnel on Gaza border fence. For example, they targeted Razan Al-Najjar who was Paramedic. She was killed at the age of 21 with a bullet in the Chest, while she was helping people who were injured.
• Israeli soldiers were targeting the Press, which is totally illegal, and we saw a video on journalists who were killed by Israel. Especially Yassir Murtaja who was 30 years old and was killed with a bullet in the abdomen.
• Targeting of Children is the most terrifying and shameful act that Israel did. The story of the child Mohammad Ayoub who was in the seventh grade was a real shock, because while he was in the eastern border wall of Jabalia town in northern Gaza he was killed with a bullet in the head. He didn’t have any weapon, not even a knife.
She also mentioned two essential Articles from the Geneva convention:
• the Article 32, 4th Geneva convention that was about the fact that a person who wasn’t protected may be punished for an offence he or she has not personally committed. So, Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
• Article 147, 4th Geneva convention: the Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Mr. Michael Lynk: “Can an Occupying Power become an Illegal Occupant if it abuses the Fundamental Principles that underly the modern Laws on Occupation?”
Mr. Michael Lynk was the final speaker to take the floor and began by announcing that his presentation would be addressing the question “Can an occupying power become an illegal occupant if it abuses the fundamental principles that underly the modern laws on occupation?”; his conclusion is that it can become illegal and his presentation would demonstrate this case under international law.
To begin with, he underlined the concept of prolonged occupation, which has in numerous instances been used to describe the illegal occupation. However, he noted that this concept could become a legal guise masking a de facto colonial exercise, annexation, conquest or other form of permanent rule. In light of this he went on to describe the state of Israel as an occupying power under international law and the role and obligations it is obliged to follow under leading principles and the Geneva Conventions. Referring to his October 2017 report as Special Rapporteur to the United Nations General Assembly he argued that a four-part test could be administered to determine whether the status of an occupying power is illegal. A country that seeks to transform occupation into a claim of sovereignty is in violation of its obligations under international humanitarian law and hence acquires the status of illegal occupant. The four elements of the test he proposes are as follows:
i. An Occupying Power cannot annex any of the Occupied Territory
International law scholars have noted the ‘no-annexation’ principle as a legally binding doctrine and under UNSC Resolution 242 (November 1967) the Security Council endorsed the principle of “the inadmissibility of the acquisition of territory” on several occasions either by war or force. Thus, Israel’s de jure annexation of East Jerusalem in 1967 (by Cabinet decision) and 1980 (by a Knesset vote) is ipso facto, a grave breach of the laws of occupation, which the Security Council in August of 1980 censured in the strongest of terms and affirmed that these actions were in breach of international law and the annexation of Jerusalem was “null and void” and “must be rescinded forthwith”. However, Israel has remained non-compliant with all United Nations’ resolutions on the annexation of Jerusalem.
Furthermore, the ICJ in its 2004 Advisory Opinion cautioned that the Wall and settlement regime constitutes a fait accompli and de facto annexation. In the West Bank Area C is under Israel’s complete control and settlers live under Israeli law in Jewish-only settlements, which are expanding. This continued occupation over part or all of Palestinian territory can only be explained as colonial ambition par excellence.
ii. An Occupation is inherently temporary, and the Occupying Power must seek to end the occupations as soon as reasonably possible.
By definition, Occupation is a temporary and exceptional situation where the Occupying Power assumes the role of de facto administrator of the territory until conditions allow for the return of territory to the sovereign. Due to prohibition against acquisition of territory by force the occupying power is prohibited from permanent rule or rule on an indefinite basis.
The 51-year-old Israeli occupation is without precedent or parallel in today’s world as instances of modern occupation that have adhered to strict principles of temporariness, non-annexation, trusteeship, and good faith have not exceeded 10 years. Israel itself cannot offer a compelling reason for this extraordinary length of occupation consistent with its obligation to end its rule as soon as reasonably possible and this intentionally forestalls any meaningful exercise of self-determination by the Palestinians.
iii. During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation.
Mr. Lynk noted the principle under international law that the occupying power is required, through its duration of occupation, to govern and act in the best interests of the people under occupation. This principle is observed in the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and international human rights instruments that provide further provisions that protect the lives, property, natural resources, institutions, civil life, fundamental human rights, and latent sovereignty of the people under occupation.
However, barriers and restrictions have resulted to mounting impoverishment and according the World Bank and the United Nations, Palestinians in the West Bank endure inferior civil, legal and social conditions compared to Israeli settlers and suffer significant restrictions to their freedom of movement, denial to access to water and natural resources among other fundamental freedoms. These restrictions adversely affect daily life where over 60 percent of the population in Gaza is reliant on humanitarian aid and more than 40 percent are unable to secure electrical power. The Wall and occupation in East Jerusalem has led to increased detachment from traditional national, economic, cultural and family connections with the West Bank and depleted economy.
These instances lead to the conclusion that Israel is ruling Palestinian territory as an internal colony and is committed to exploiting its land and resources and is profoundly indifferent to the rights and best interests of the protected people under occupation, which is contrary to its obligations.
iv. The Occupying Power must act in good faith
This principle is the “cardinal rule of treaty interpretation” in the international legal system and is an integral part of all legal relationships in modern international law. It requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the principle of good faith prohibits states from engaging in acts that would defeat the objective and purpose of the obligation.
An occupying power is required to govern the territory in good faith and this can be measured by its compliance with two obligations:
i) Its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation;
ii) Its conformity with any specific directions issued by the United nations or other authoritative bodies pertaining to the occupation.
It has been deemed that Israel has breached many of the leading precepts of international humanitarian and human rights law throughout the occupation. Additionally, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches and extended closures of Palestinian communities. Freedom of movement is impaired and above all the entrenched and unaccountable occupation violates if not undermines the right of the Palestinians to self-determination.
Mr. Lynk pointed out that since 1967 the Security Council has adopted more than 40 resolutions critical of israel’s occupation of the Palestininan territory and which deals with the settlements, annexation of Jerusalem, denial of Palestinian human rights and Israel’s refusal to abide by the Fourth Geneva Convention. The UN General Assembly and the Human Rights Council have also adopted several hundred similar resolutions.
He then brought to attention important legal precedent in international law; namely, the influential Advisory Opinion on Namibia by the International Court of Justice in 1971 to which he pointed out striking similarities. The one difference he noted was that South Africa’s rule of Namibia arose from a League of Nations Mandate whereas Israel’s occupation is governed by the laws of occupation found in the Fourth Geneva Convention.
In this consideration, Mr. Lynk layed out five significant features to bear with the 1971 ICJ ruling upon our situation in the OPT.
1) The ICJ stated three core principles that all Mandatory holders must comply with:
a. The Mandatory power has no right of annexation of any of the mandate territory,
b. It must act as a trustee for the well-being and development of the people in the mandate territory, and
c. The Mandatory power cannot introduce discriminatory laws and practices that disadvantage the peoples of the mandate.
2) The principle of self-determination, which is the ultimate purpose of the Mandate.
3) Deliberate and persistent violation these core principles of the Mandate would amount to a fundamental breach of an international undertaking.
4) Strict compliance with the protections of the Mandate for the benefit of the peoples of Namibia as long as it is governed by South Africa.
5) The use of the “good faith” test to judge whether South Africa was in compliance with the governing principles of the Mandate.
Mr. Lynk acclaimed that scholars consider this is a touchstone precedent for understanding the legal status of Israel’s continued occupation.
In conclusion, Mr. Lynk said that international law is athe promise states make to one another, and to their people, that rights will be respected, protections will be enforced, agreements and obligations will be upheld, and peace with justice will be pursued. While noting earlier that the international community at large has completely failed in ending the occupation it nonetheless still has a crucial role to play in realising the rights and self-determination of the Palestinian people, which can only be achieved with an end to the occupation. He noted that international law, along with the peoples of Palestine and Israel, have all suffered in the process.
To answer the fundamental question asked at the beginning of his presentation, he said that an occupier or mandatory power will cross the red line into illegality if they breach fundamental obligations as alien rulers and he then submitted as Special Rapporteur that Israel has crossed this red line. The international community now faces the challenge of assessing this analysis and if accepted will have to devise and employ appropriate diplomatic and legal steps that would completely and finally end the occupation.
In addition, as recommended in his October 2017 report the United Nations General Assembly should commission a comprehensive study on the legality of Israel’s continued occupation of the Palestinian territory and should then consider the advantages of seeking an advisory opinion form the International Court of Justice on this very question.
At the end of the side-event there were 2 rounds of questions to the panelists after which they each gave their concluding remarks.
Previous co-sponsored side-events on Palestine at the UN Human Rights Council:
GICJ Activities on the Human Rights situation in Palestine and other occupied Arab territories
GICJ Urgent Appeals on Palestine:
- GICJ - Punishing people for the misdeeds of others clearly violates international law - July 2014
- A match in the powder keg: The occupying force continues to contravene international law - April 2014
- GICJ – Urgent Appeal on the Forcible eviction of Ein Hijleh - February 2014
- UN press release on behalf of Issa Amro - September 2013
- GICJ –Urgent appeal following arbitrary arrest of Sireen Khudiri - June 2013
- GICJ – Follow-up appeal on behalf of HR defender - June 2013
- GICJ - Follow-up appeal on the case of Mr. Issa Amro - April 2013
- GICJ - Urgent Appeal to the Special Rapporteur on the situation of human rights defenders - March 2013
- GICJ – Urgent Appeal to the UN Special Rapporteur on the situation of human rights in Palestinian territories occupied since 1967 - February 2013
GICJ Side-Events and oral statements on Palestine:
Human Rights Council - 30th regular session (14 September - 2 October 2015)
Human Rights Council - 29th regular session (15 June - 3 July 2015)
Human Rights Council - 21st special session on the human rights situation in the Occupied Palestinian Territory, including East Jerusalem (23 July 2014)
Human Rights Council - 26th regular session (10 - 27 June 2014):
Human Rights Council - 25th regular session (3 - 28 March 2014):
Human Rights Council - 24th regular session (9 - 27 September 2013):
- Side-event: Human Rights in Palestine - Palestinian Refugees in Diaspora and their Right of Return, Where to?
- Side-event: Human Rights in Middle East - Give Peace a chance
- Democracy and the Right to self-determination
- GICJ statements on Palestine
Human Rights Council - 23rd regular session (27 May - 14 June 2013):