HRC53: “Israel transformed the OPT into a constantly surveilled open-air prison.”
The 53rd Session of the Human Rights Council
19 June–14 July 2023
Agenda Item 7: Human rights situation in Palestine and other occupied Arab territories
10th July 2023
By Farah Caïdi / GICJ
Executive Summary
For her first report as Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese chose to focus on Palestinian’s arbitrary deprivation of liberty.
Ms. Albanese emphasised that Israel created a “pervasive system of discipline, control and punishment to anyone who objects to this system”. She recalled that this large-scale system established by Israel is actually a feature of settler-colonial regimes, which throughout history have destroyed native populations while seizing their lands. Arbitrary detention is a key component of this strategy, and this was the focus of the Special Rapporteur’s first report since the beginning of her mandate.
Her intervention at the 53rd session of the Human Rights Council, on the 10th of July 2023, marked the appalling gravity of the human rights situation in the Occupied Palestinian Territory (OPT). More than 1 million Palestinians have been detained since 1967. Currently, there are around 5,000 Palestinians in Israeli prisons, including 160 children. 1,100 are detained without charges and with no pending trial, contrary to international law.
She highlighted that Palestinians’ detentions come with a series of other violations of international law, such as discrimination, ill-treatment, torture and breaches of due process.
In addition, walls, checkpoints, segregated roads and bureaucratic barriers restrict Palestinians in their decision to travel, choose a residence, visit relatives, work, study and farm their lands.
Geneva International Centre for Justice (GICJ) expresses its full support to Ms. Albanese and would like to praise her for her tireless work throughout her mandate.
More than ever, the pressures faced by the Special Rapporteur show how the work to highlight, counter, and remedy human rights violations in Palestine is critical. GICJ continues to call for accountability of Israel’s violations of international law. We maintain that accountability and ending the occupation are the only sustainable means to bring peace to Palestine.
We join the strong call of the Special Rapporteur to States to finally, firmly, and properly intervene on the matter and uphold the international human rights system whose efficiency is challenged by double-standards and privileging one group of people over another.
Background
The mandate of Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 was established in 1993, from a resolution of the Commission on Human Rights (previous Human Rights Council).
Its main objective is the investigation of Israel's violations of the principles of International law and humanitarian law, including the Geneva Convention relative to the Protection of Civilians Persons in Time of War (12 August 1949).
This mandate specifically focuses on the Palestinian Territories occupied by Israel since 1967.
The Special Rapporteur is required to report annually to the Human Rights Council. The end of this mandate is fixed as being the end of the Israeli occupation of the relevant territories.
Summary of the Report
For her first report as Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Alabanese chose to focus on Palestinian’s arbitrary deprivation of liberty.
As Ms. Albanese could not visit the Occupied Palestinian Territory following Israel’s refusal to grant her authorisation to enter alongside broader attacks on the legitimacy of her mandate, nevertheless the report contained primary and secondary sources of significant violations.
The Special Rapporteur particularly recalled that arbitrary deprivation of liberty has been widespread and systematic for generations of Palestinians until this day.
Specifically, she came to the conclusion that in addition to unlawful practices in detention, Israeli authorities also use techniques of large-scale confinement that go beyond detention, including physical, bureaucratic and digital methods to constrain the population.
In addition, the increasing presence of settlers’ outposts only exacerbate an already tense situation, and thereby contribute to intensifying Palestinians’ arbitrary detention. It is against this background that she identified the trend that within structures imposed by the Israeli occupation, “Palestinians are often presumed guilty without evidence, arrested without warrants, and detained without charge or trial.”
Deprivation of liberty in the international legal framework:
International Humanitarian Law
The West Bank, including East-Jerusalem, and the Gaza Strip are considered occupied territory by Israel under international law.
As such, deprivation of liberty is governed by the Hague Regulations, the Third and Fourth Geneva Conventions, Additional Protocol I, and customary international humanitarian law.
Individuals living under an occupying power are considered protected persons, and have specific rights enforced in the texts mentioned above.
The Fourth Geneva Convention establishes that deprivation of liberty of a protected individual can only be performed if “absolutely necessary”, for “imperative reasons of security”. It must comply as well with the other provisions guaranteeing a fair trial, respect of the presumption of innocence and the right to a legal defence. Naturally, the rights in detention must be respected such as protection from corporal punishment, hygiene, medical care and nutrition.
The report highlights that Israel does not recognise the Palestinian Territory as occupied but rather as disputed. This entails Israel’s disregard of its responsibilities as an occupying power and is the source of fundamental principles’ violations, including the non-acquisition of sovereignty, duties to administer the occupied territory for the benefit of the protected population, and temporariness.
International Human Rights Law
International Human Rights Law offers an array of provisions guaranteeing protection from arbitrariness through different texts. Individuals are protected against arbitrary arrest and detention, ill-treatment, and torture through the International Covenant on Civil and Political Rights. The latter also guarantees individuals the rights to humane treatment, fair trial, effective legal defence, privacy, and reputation.
The protection is further completed with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child.
International Criminal Law
Ms Albanese’s report indicates that the unlawful deprivation of liberty and the denial of the right to a fair trial may be prosecutable by the International Criminal Court and universal jurisdiction as they may amount to international crimes under the Rome Statute.
The report recalls that “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” constitutes a crime against humanity when committed as part of a widespread or systematic attack against the civilian population.
The use of torture and ill-treatment against Palestinians has been widely documented. The report mentions the cases of Palestinians addressed to the UN Working Group on Arbitrary Detention since 1992. The experts have consistently concluded “that widespread and systematic arbitrary deprivation of liberty may amount to a crime against humanity”.
Systematic incarcerations
Palestinians in the Occupied Territory can be arrested for a wide range of criminal offences leading to long prison sentences.
For example, every gathering of ten or more people must be granted a permit from Israeli authorities to be lawful. Palestinians risk a ten year sentence if a speech on political subjects was made during a gathering or might be suspected as being political; thus severely restricting freedom of assembly and expression.
Palestinians can also be detained and sentenced to life imprisonment if they are affiliated with any group where other members are accused of specific offences. This provision is in opposition with the fundamental principle that criminal liability must be based on individual responsibility,
Mass incarceration procedures
Administrative detention is another key component of Israel's carceral policy. The UN recorded 2022 as the highest number of Palestinians in administrative detentions without charge or trial since 2008.
In administrative detention, a person is held without trial, without having committed an offence, on the grounds that he or she plans to break the law in the future. As this measure is supposed to be preventive, it has no time limit. The person is detained without legal proceedings, by order of the regional military commander, based on classified evidence that is not revealed to them. This leaves the detainees helpless – facing unknown allegations with no way to disprove them, not knowing when they will be released, and without being charged, tried or convicted.
In addition to being arrested based on military orders, Palestinian civilians' cases are deferred to Israeli military courts. These courts are composed of members of the military, thus, critically questioning the neutrality of the trials and decisions made by such courts.
Minors’ treatment in this systematic deprivation of liberty framework is particularly significant of the gravity of the situation. Their status as a vulnerable group is not respected and they are subjected to harsh and abusive treatments. Children are also tried before “juvenile military courts”, which constitute an oxymoron for the Special Rapporteur.
An open-air prison: confinement beyond the bars
The Special Rapporteur compared the OPT as a “panopticon” where Palestinains are constantly surveilled and disciplined by the Israeli authorities through physical, bureaucratic, and digital mechanisms. These mechanisms come along with collective punishment practices.
As mentioned in the report, Palestinians live under “a carceral continuum where different levels of captivity coexist”.
The Gaza Strip is the most significant example of the physical carcerality, where two million individuals are under severe blockade since 2007.
The bureaucratic carcerality expresses itself through the multiple barriers Palestinians have in their daily life, including the need of permits to cross certain areas, work, visit family, gather or enter sacred places. Palestinians can simply be banned from receiving a permit, and they have no real judicial recourse to the decision.
In addition, Palestinians are heavily policed through surveillance technologies, creating what the Special Rapporteur calls a “digital carcerality”. Whether they are monitored through advanced surveillance devices in public spaces, gatherings, checkpoints etc., or online through social media, calls and messages monitoring, Palestinians suffer grave breaches of their right to privacy.
Israeli authorities are disregarding Palestinians status of protected persons as well as their fundamental rights. The systematic treatment of Palestinians people as a “detainable threat” keeps them in a permanent state of vulnerability, which prevents them from uniting, self-governing and developing a polity.
The Special Rapporteur urgently called the international community to recognise the critical situation of Israel’s unlawfulness by taking their responsibilities as third States’ actors. She recalled that under the international law and the UN charter specifically, third States have the obligation to reject and oppose Israel’s settler-colonial apartheid. Israel has to stop criminalising Palestinians realising their rights, including their inalienable right to self-determination.
Recommendations:
The Special Rapporteur strongly recommends the abolishment of Israel’s system of arbitrary deprivation of liberty emanating from unlawful occupation.
Third States should:
(a) Use diplomatic, political and economic measures afforded by the Charter of the United Nations without discrimination.
(b) Not recognise as lawful, aid or assist Israel’s occupation given its commission of internationally wrongful acts and possible international crimes, and call for their cessation and reparations.
(c) Prosecute the commission of international crimes alleged in this report under universal jurisdiction.
The State of Israel should:
(a) Declare a moratorium on the detention of minors.
(b) Release all Palestinian detainees, especially children, detained for acts devoid of offensiveness under international law.
(c) Release all withheld bodies of deceased Palestinians and guarantee dignified burials.
The Palestinian authorities should fully comply with international norms on the deprivation of liberty. This includes:
(a) Ceasing any form of arbitrary detention, as well as torture and ill-treatment of detainees, ensuring both accountability and reparations to the victims. This includes the release of the bodies of deceased Israelis withheld in Gaza.
(b) Interrupting security arrangements that may lead to violating fundamental rights and freedoms under international law.
(c) Ensuring effective oversight and accountability measures including by strategically engaging local human rights organisations.
Independent and thorough investigation(s) into the possible commission of international crimes arising from the systematic arbitrary detention of Palestinians be opened, including through universal jurisdiction. In particular, the Prosecutor of the International Criminal Court should examine these issues thoroughly. The likelihood of these offences being cumulatively committed as part of a policy of ‘de-Palestinisation’ of the occupied territory and of a plan to incrementally annex, must be urgently investigated: such a plan would threaten the right of an entire people to exist as a national group, challenging the very foundations of the international legal order.
Interactive dialogue
It is noteworthy that although a country concerned by the report, Israel did not take the opportunity to comment on the report.
The representative of the State of Palestine expressed the State’s support to the Special Rapporteur’s work. He denounced the different attacks on her mandate.
He called the international community to work together to exert pressure on the Israeli government for it to implement the recommendations, such as the use of diplomatic, economic and political pressures and not to provide any aid or assistance to the occupying power. Finally he urged the prosecution of the perpetrators under universal jurisdiction.
The Commissioner General of the Independent Commission for Human Rights - Palestine (Mr. Issam Aruri) took to the floor to denounce the medical negligence of Palestinians in detention. He highlighted that more than 700 cases suffer from different medical issues without being properly taken care of. He reminded that this situation is in clear violation with Israel authority’s obligations as an occupying power.
The delegate speaking on behalf of the European Union shared the EU member States’ concerns regarding the lack of accountability and the reported high number of casualties due to violence. He recalled that the use of force against a population must be proportionate and used only as a last resort measure. The representative also expressed concerns about the tactic and tool of using administrative detentions to suppress individuals without formal legal trial.
Pakistan on behalf of the Organisation of Islamic Countries (OIC) reiterated the OIC’s support for the Special Rapporteur’s mandate. He called for the end of the illegal occupation and the release of all Palestinian detainees including Walid Daqqa, now 62, detained for more than 37 years and diagnosed with cancer. The OIC requested the release of all the bodies of deceased Palestinians in custody of Israeli authorities in order to ensure the guarantee of dignified burials.
The Venezuelan delegate on behalf of the Group of Friends in Defense of the UN Charter recalled the consistent support for the Palestinian people and condemnation of the systematic violations of human rights by Israel. He expressed the group’s concerns over the settlements’ expansion and expropriation of properties which change the geographical and demographical situation of the OPT.
The representative of Senegal encouraged Israel to fully cooperate with the UN mechanisms and experts. She shared her country’s support for the inalienable right of Palestinians to self-determination and to have their own independent state.
The South Africa delegation, in light of the 75th anniversary of the UDHR, the South African representative denounced the continued violations of Palestinians’ rights. He called the international community to put an end once and for all to the illegal occupation and hold Israel accountable. The delegate insisted that South Africa’s solidarity with Palestinians is embodied in one of Nelson Mandela’s quotes when he said “We, South Africans, cannot consider ourselves free until Palestinians are free”.
The Turkish representative denounced Israel’s disproportionate violence, support for settlements outposts and disregard for Jerusalem’s status quo as being in complete contradiction with international law and relevant UN resolutions. She emphasised that Türkiye supports a viable peace in Palestine, encompassed with a sovereign and contiguous Palestinian State based on the pre-1967 borders with East-Jerusalem as its capital.
Speaking as a collective, the League of Arab States noted that in light of the ongoing violence, it is necessary to keep item 7 concerning the situation of human rights in Palestine on the Human Rights Council agenda. The representative denounced the ongoing land confiscations, demolitions of properties, looting of wealth and natural resources, closure of roads in Palestinian zones and the blocking of the Gaza Strip. She condemned as well the forced deportation of Palestinians with the aim of perpetuating the settler-colonial expansion. The representative asked the Human Rights Council to take immediate action to ensure Palestinians’ protection.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) expresses its full support to Ms. Albanese and would like to praise her for her tireless work throughout her mandate.
More than ever, the pressures faced by the Special Rapporteur show how the work against human rights violations in Palestine is critical. The systematic treatment of Palestinian people as a “detainable threat” keeps them in a permanent state of vulnerability, which prevents them from uniting, self-governing and developing a polity.
GICJ continues to call for accountability of Israel’s violations of international law. We maintain that accountability and ending the occupation are the only and sustainable means to bring peace to Palestine.
We join the strong call of the Special Rapporteur toward the international community to recognise the critical situation of Israel’s unlawfulness by taking their responsibilities as third States’ actors. She recalled that under the international law and the UN charter specifically, third States have the obligation to reject and oppose Israel’s settler-colonial apartheid. Israel has to stop criminalising Palestinians realising their rights, including their inalienable right to self-determination.
We urge States to finally firmly and properly intervene on the matter to uphold the international human rights system whose efficiency is challenged by double-standards and privileges.
Human Rights Council 53, HRC53, Palestine, Israel, Deprivation of Liberty, Apartheid, Settlements, Colonialism, Geneva International Centre for Justice
