The High Commissioner’s report to the Human Rights Council on the issue of accountability for serious violations of international law in the Occupied Palestinian Territory
46th session of the Human Rights Council
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By: Alejandro Fernández/GICJ
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On 24 February 2021, the United Nations High Commissioner for Human Rights submitted to the 46th session of the Human Rights Council her latest report pertaining to items 2 and 7 of the Council’s agenda, entitled “Ensuring accountability and justice for all violations of international law in the Occupied Palestinian Territory, including East Jerusalem”.
The report, which covers the period between 1 November 2019 and 31 October 2020, addresses the issue of accountability for violations of human rights and international humanitarian law by all duty bearers in the West Bank, including East Jerusalem, and Gaza. It further provides an update on the investigations undertaken after the 2008 escalation of hostilities in Gaza. The State of Palestine responded to the High Commissioner’s request of information on 9 November 2020, whereas Israel did not respond.
The OHCHR accounted for 67 Palestinians killed by Israeli security forces during the reporting period, including 47 civilians and 16 children, and 3,678 injured. On the other hand, 1 Israeli soldier was killed and 90 were injured. The OHCHR observed that many incidents occurred outside the context of hostilities and involved excessive use of force by law enforcement agencies. Meanwhile, impunity remained pervasive.
Since the 2014 escalation of hostilities in Gaza, concerns persist with regards to the lack accountability for serious violations of humanitarian law, including war crimes, by all parties. The High Commissioner reported on the progress (or lack thereof) in the investigations for several violations in the Occupied Palestinian Territory (OPT), and found little to no improvements.
Enquiries undertaken by Israeli judicial bodies on the killing of numerous Palestinian civilians during the 2008, 2009 and 2014 escalation of hostilities had been closed, while no information had been submitted about action taken to ensure accountability for possible violations of international humanitarian law committed by the Palestinian authorities and armed groups.
Moreover, during the reporting period new Israeli military strikes killed civilians, raising serious doubts on the precautions taken by Israel to prevent civilian casualties in the course of hostilities. The High Commissioner also expressed her preoccupation for the indiscriminate launching of rockets and mortar shells towards Israel by Palestinian armed groups in Gaza.
The OHCHR also noted that impunity for killings and injuries caused by excessive use of force was generalized. She observed that, between 1 January 2017 and 31 October 2020, 354 Palestinians (including 74 children) were killed by Israeli security forces in the OPT during policing operations. Most investigations opened after these incidents were either closed or resulted in lenient convictions or no conviction at all.
Both lethal and non-lethal force were used intensively by Israeli security agents to enforce access restrictions to fishing areas around Gaza, many times without necessity or provocation. Likewise, numerous incidents of excessive and unnecessary use of force against civilians, including killings, were reported in the West Bank. Accountability for these episodes normally does not go beyond administrative sanctions or lenient criminal punishments, all of which are grossly disproportionate with the gravity of the crimes.
The High Commissioner further expressed her concern for the decision of the Israeli High Court of Justice equating certain law enforcement operations with a “war-like situation”, thus allowing for a much wider latitude in the use of lethal force than that regulated by the law enforcement framework.
By the same token, no progress had been reported in investigations concerning allegations of ill-treatment in detention facilities by Israeli agents.
The OHCHR also commented on the lack of advancement in the investigations of allegations of excessive use of force, torture and ill-treatment by Palestinian security agencies. Even though Palestine had informed it meant to adopt legislation for the establishment of a national preventive mechanisms to investigate instances of torture, as mandated by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the implementation of that mechanism remained pending.
Notwithstanding the steps taken to address incidents of killings by Palestinian security forces, such as the creation of ad hoc inquiries, pledges to compensate the victims’ families, and announcements regarding the opening of criminal investigations and the adoption of disciplinary measures, the High Commissioner noted with concern that no criminal charges had been filed so far.
Furthermore, the High Commissioner recalled her 2017 report (A/HRC/35/19), pertaining to accountability for violations in the OPT, and regretted that the human rights situation in the area had not substantially changed, and therefore the recommendations formulated in the report remained valid. The recommendations approached seven different topics: accountability and access to justice; international engagement; arrest and detention; settlements; freedom of movement; other civil and political rights; and economic, social and cultural rights. She exhorted both Israel and Palestine to make full use of OHCHR technical assistance to implement these measures. She made special reference in this regard to Israel, which had suspended cooperation with OHCHR, including the issuance of visas for international staff.
The High Commissioner also reiterated her call to the Human Rights Council to recommend to the General Assembly that it made use of its powers under Article 96 (a) of the Charter of the United Nations in order to specify how all parties could fulfil their obligations in implementing the recommendations reviewed in the report. In addition, she urged States to take all measures necessary to ensure respect for the resolutions of the Human Rights Council, the General Assembly, and the Security Council, including Security Council resolution 2334 (2016), in which it reaffirmed that the establishment by Israel of settlements in the West Bank had no legal validity and constituted a flagrant violation under international law.
She specially exhorted States to take steps to ensure compliance with the provisions of the Geneva Conventions on protection of civilians in times of war, by supporting ongoing international legal procedures and exercising universal jurisdiction through their domestic courts over war crimes committed in the OPT.
She concluded her report with the following recommendations:
“(a) Calls upon Israel to fully comply with its obligations under international human rights law and international humanitarian law in the Occupied Palestinian Territory; urges it to conduct prompt, independent, impartial, thorough, effective and transparent investigations into all alleged violations and abuses of international human rights law and international humanitarian law, in particular into allegations of international crimes; and also calls upon Israel to ensure that all victims and their families have access to effective remedies, reparation and truth;
(b) Calls upon Israel to resume its cooperation with OHCHR and make full use of OHCHR technical assistance;
(c) Urges the State of Palestine to conduct prompt, independent, impartial, thorough, effective and transparent investigations into all alleged violations and abuses of international human rights law and international humanitarian law, in particular into allegations of international crimes; and calls upon the State of Palestine to ensure that all victims and their families have access to effective remedies, reparation and truth;
(d) Recommends that all parties ensure full respect for international law, including international humanitarian law, in particular the principles of distinction, proportionality and precaution, and that they ensure accountability for grave violations;
(e) Calls upon all States to take all necessary measures to effectively ensure respect for the Geneva Conventions by all parties to the conflict, taking into account the means reasonably available to them and their level of influence on the parties; and, in particular, reminds States with close ties to the parties that they must exert their influence to ensure respect for the law;
(f) Reiterates the calls upon all States and relevant United Nations bodies to take all necessary measures to ensure full respect and compliance with the relevant resolutions of the Security Council, the General Assembly and the Human Rights Council.”
Geneva International Centre for Justice (GICJ) has been continuously engaging with United Nations human rights mechanisms, including the Human Rights Council, to draw attention towards the multiple human rights violations that take place in the OPT. We have submitted written and oral statements to the Council on ill-treatment, including sexual violence, of Palestinian women in places of detention; arbitrary detentions and breaches of the right to a fair trial for Palestinians; the rise of hate speech against Palestinians among Israeli political representatives in social media; excessive force against protesters; criminalization and vilification of human rights defenders; as well as denial of access to the West Bank.
We have further reported on Israel’s Universal Periodic Review and on the examination of Israel by the Committee on the Elimination of Racial Discrimination, where exclusion of Palestinians from civic space, attacks on civilian infrastructure, targeting of human rights organizations and racial and religious discrimination against Arab minorities were extensively brought up by UN experts and subject to debate with the participation of State delegations and civil society. We continue to monitor the implementation of the recommendations made by these bodies.
GICJ fully endorses the High Commissioner’s report and stresses the importance of accountability to prevent the recurrence of serious violations of international law and bring satisfaction to victims and their families. We further welcome the International Criminal Court’s decision to extend its territorial jurisdiction over international crimes committed in the OPT and encourage all States to exercise universal jurisdiction over these crimes through their domestic courts.
Likewise, we call on UN mechanisms to keep monitoring the human rights situation in the OPT and maintain pressure on Israel to comply with its international obligations and resume cooperation with the OHCHR.
