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By John Dugard
Summary
The situation in the Occupied Palestinian Territory (OPT) continues
to be a matter of grave concern. Although the road map promoted by
the Quartet offers some prospect of peace in the region, it is
important to record that the past six months have seen continued
violations of human rights and international humanitarian law.
The Government of Israel has justified its actions in the OPT on the
grounds of self defence and portrayed them as anti-terrorism
measures. That Israel has legitimate security concerns cannot be
denied. On the other hand, some limit must be placed on the
violation of human rights in the name of counter-terrorism. A
balance must be struck between respect for human rights and the
interests of security.
During the past few months the construction of the Wall, separating
Israel from the West Bank, has been frenetically pursued. The Wall
does not follow the Green Line, which marks the de facto boundary
between Israel and Palestine. Instead, it incorporates substantial
areas of the West Bank into Israel. Over 210,000 Palestinians will
be seriously affected by the Wall. Palestinians living between the
Wall and the Green Line will be effectively cut off from their
farmlands and workplaces, schools, health clinics and other social
services. This is likely to lead to a new generation of refugees or
internally displaced persons.
The Wall has all the features of a permanent structure. The fact
that it will incorporate half of the settler population in the West
Bank and East Jerusalem suggests that it is designed to further
entrench the position of the settlers. The evidence strongly
suggests that Israel is determined to create facts on the ground
amounting to de facto annexation. Annexation of this kind, known as
conquest in international law, is prohibited by the Charter of the
United Nations and the Fourth Geneva Convention. The Special
Rapporteur submits that the time has come to condemn the Wall as an
unlawful act of annexation in the same way that Israel’s annexation
of East Jerusalem and the Golan Heights has been condemned as
unlawful. Similarly, no recognition should be given by the
international community to Israel’s control over Palestinian
territory enclosed by the Wall.
QUESTION OF THE VIOLATION OF HUMAN RIGHTS IN THE
OCCUPIED ARAB TERRITORIES, INCLUDING PALESTINE
Report of the Special Rapporteur of the Commission on Human
Rights, John Dugard, on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, submitted
in accordance with Commission resolution 1993/2 A
Summary
The situation in the Occupied Palestinian Territory (OPT) continues
to be a matter of
grave concern. Although the road map promoted by the Quartet offers
some prospect of peace in the region, it is important to record that
the past six months have seen continued violations of human rights
and international humanitarian law.
The Government of Israel has justified its actions in the OPT on the
grounds of
self-defence and portrayed them as anti-terrorism measures. That
Israel has legitimate security concerns cannot be denied. On the
other hand, some limit must be placed on the violation of human
rights in the name of counter-terrorism. A balance must be struck
between respect for human rights and the interests of security.
During the past few months the construction of the Wall, separating
Israel from the
West Bank, has been frenetically pursued. The Wall does not follow
the Green Line, which marks the de facto boundary between Israel and
Palestine. Instead, it incorporates substantial areas of the West
Bank into Israel. Over 210,000 Palestinians will be seriously
affected by the Wall. Palestinians living between the Wall and the
Green Line will be effectively cut off from their farmlands and
workplaces, schools, health clinics and other social services. This
is likely to lead to a new generation of refugees or internally
displaced persons.
The Wall has all the features of a permanent structure. The fact
that it will incorporate
half of the settler population in the West Bank and East Jerusalem
suggests that it is designed to further entrench the position of the
settlers. The evidence strongly suggests that Israel is determined
to create facts on the ground amounting to de facto annexation.
Annexation of this kind, known as conquest in international law, is
prohibited by the Charter of the United Nations and the Fourth
Geneva Convention. The Special Rapporteur submits that the time has
come to condemn the Wall as an unlawful act of annexation in the
same way that Israel’s annexation of East Jerusalem and the Golan
Heights has been condemned as unlawful. Similarly, no recognition
should be given by the international community to Israel’s control
over Palestinian
territory enclosed by the Wall.
The restrictions on freedom of movement continue to create a
humanitarian crisis in
the OPT. Although curfews have not affected as many people in 2003
as in the previous year, they still disrupt Palestinian life on a
broad scale. The number of checkpoints has increased during the past
six months. These restraints on the movement of goods and persons
give rise to unemployment, poverty, poor health care and interrupted
education and, in addition, they result in the humiliation of the
Palestinian people.
The death toll in the conflict continues to rise as a result of
suicide bombings and military incursions. The Israeli practice of
assassinating suspected terrorists has inflicted death and injury
not only on those targeted but on a substantial number of innocent
civilians in the vicinity of such actions. The legality of such
measures is highly questionable.
There are some 6,000 Palestinians in Israeli prisons and detention
centres. Although
Israel has agreed to release 540 of them, its refusal to release
more prisoners constitutes a major obstacle in the way of peace in
the region. Sadly, allegations of torture and inhuman and degrading
treatment continue to be made. The Special Rapporteur therefore
calls for an independent inquiry into such allegations.
The destruction of property in the OPT continues unabated. During
the past eight
months, Gaza has been particularly affected by military action that
has caused large-scale devastation to houses and agricultural land.
Israel’ s undertaking to curb the growth of settlements has not been
implemented. On the contrary, settlements have continued to grow at
an unacceptable pace. This phenomenon, together with the
construction of the Wall, suggests that territorial expansion
remains an essential feature of Israel’ s policies and practices in
the OPT.
I. Introduction
...................................................................................................
5
II. Human rights and terrorism
...........................................................................
6
III. Annexation and the Wall
...............................................................................
6
IV. Restrictions on freedom of movement and the humanitarian crisis
................. 9
V. Loss of life and the killing of civilians
........................................................... 10
VI. Prisoners
........................................................................................................
12
VII. Destruction of property
..................................................................................
13
VIII. Settlements
....................................................................................................
14
IX. Conclusion
.....................................................................................................
15
I. INTRODUCTION
1. The Special Rapporteur visited the Occupied Palestinian Territory
(OPT) and Israel
from 22 to 29 June 2003. In the course of this mission he visited
Gaza, Ramallah, Nablus, Bethlehem, Jericho and Jerusalem. He met
with President Arafat, ministers of the Palestinian Authority (PA),
members of the Palestinian Legislative Council (PLC) and the
Governor of Nablus, who briefed him fully on the situation. He also
met with prominent Palestinian and Israeli interlocutors and
Palestinian and Israeli non-governmental organizations (NGOs) who
informed him about the human rights situation in the OPT.
Accompanied by the Commissioner-General of the United Nations Relief
and Works Agency for Palestine Refugees in the Near East (UNRWA),
Peter Hansen, he visited Beit Hanoun in the Gaza Strip, the scene of
massive destruction of homes and agricultural lands. In Ramallah he
visited the Surda and
Kalandiya checkpoints, where he observed the restrictions on freedom
of movement imposed on Palestinians. The Wall/Fence/Barrier
(hereinafter “the Wall”) separating Israel from the West Bank
featured prominently in the Special Rapporteur’ s mission. He
observed the construction of the Wall near Jayyous village and
Bethlehem.
2. Unfortunately, the Government of Israel continues to withhold its
cooperation from the Special Rapporteur. In part, the Special
Rapporteur’ s failure to hear the Government’ s response to the
issues described in this report was overcome by attendance at the
presentation of Israel’ s second periodic report (CCPR/C/ISR/2001/2)
on its compliance with the International Covenant
on Civil and Political Rights (ICCPR) before the Human Rights
Committee on 24 and
25 July 2003. This two-day dialogue between representatives of the
Government and the Human Rights Committee covered many of the issues
considered in the present report and provided the Special Rapporteur
with a clear understanding of the Israeli position. In the course of
its presentation, the Government reiterated its argument that its
actions in the OPT are to be measured against the rules of
international humanitarian law and not those of international human
rights law, contained in ICCPR. The Human Rights Committee confirmed
that it was unable to accept this argument and reaffirmed its
determination to judge Israel’ s actions in terms
of both these legal regimes. This remains the approach of the
Special Rapporteur.
3. The Special Rapporteur left the region shortly before the
declaration of a ceasefire by militant groups in the OPT. At the
time of writing this report there is relative calm and there is some
ground for hoping that the road map, leading to peace between
Palestine and Israel and the ultimate creation of a Palestinian
State, will succeed. Serious obstacles remain, however, in the way
of the successful implementation of the road map. Most of these
obstacles have a human rights dimension and are discussed in this
report. Peace in the region cannot succeed without a return to the
rule of law and respect for human rights and international
humanitarian law. It is unfortunate that the road map, like the Oslo
Accords, fails to give sufficient weight to this factor.
4. Previous reports have followed an all-too-familiar pattern,
describing deaths, detentions, the humanitarian crisis, destruction
of property, the suffering of children and settlements. This report
will follow a different sequence. After the necessary disclaimer of
sympathy for terrorism, the report will focus on two issues that, in
the opinion of the Special Rapporteur, most seriously demand the
attention of the international community - the unlawful annexation
of Palestinian territory and the restrictions on freedom of
movement. Thereafter, the report will turn to deaths, detentions,
the demolition of property and settlements which, unhappily,
continue
to characterize the situation.
II. HUMAN RIGHTS AND TERRORISM
5. At the outset, it is necessary for the Special Rapporteur to
reaffirm his opposition to
terrorism and his commitment to human rights. Many of the rights
contained in the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and
Cultural Rights have been violated by the Israel Defence Forces (IDF)
in their actions against the Palestinian people. Many of the
obligations of international humanitarian law have likewise been
violated. These violations are, however, justified by Israel as
action taken in self-defence and legitimate anti-terrorism action.
That Israel has legitimate security concerns cannot be denied. That
it is entitled to take strong action to prevent suicide bombings and
other acts of
terror is not disputed. On the other hand, there must be some limit
to the extent to which human rights may be violated in the name of
counter-terrorism. Even in the present international environment, in
which anti-terrorism measures challenge old liberties and freedoms,
it is not denied that a balance must be struck between respect for
basic human rights and the interests of security. Here the principle
of proportionality recognized by international humanitarian law has
a key role to play. It is not possible to adopt an armchair attitude
in assessing Israel’ s response
to suicide bombings and Palestinian violence. Israel is entitled to
a wide margin of appreciation in its response. But, even allowing
for this, it is suggested, on the basis of the evidence provided in
this report, that Israel’ s response to terror is disproportionate.
On occasion, Israel’ s action in the OPT is so remote from the
interests of security that it assumes the character of punishment,
humiliation and conquest.
III. ANNEXATION AND THE WALL
6. Language is a powerful instrument. This explains why words that
accurately describe a particular situation are often avoided out of
fear that they will too vividly portray the situation which they
seek to depict. In politics euphemism is often preferred to accuracy
in language. So it is with the Wall that Israel is presently
constructing within the territory of the West Bank. It goes by the
name of “Seam Zone”, “Security Fence” or “Separation Wall”1. The
word “annexation” is avoided as it is too accurate a description and
too unconcerned about the need to obfuscate the truth in the
interests of anti-terrorism measures. However, the fact must be
faced
that what we are presently witnessing in the West Bank is a visible
and clear act of territorial
annexation under the guise of security. There may have been no
official act of annexation of the Palestinian territory in effect
transferred to Israel by the construction of the Wall, but it is
impossible to avoid the conclusion that we are here faced with
annexation of Palestinian territory.
7. Israel is presently building a wall between Israel and the West
Bank that, when
completed, will be some 450 (possibly 650) kilometres in length. At
the time of writing some 150 kilometres have already been completed
and building constructors are working frenetically to finish it as
soon as possible. At times this barrier takes the form of an eight-metre-high
wall (near Qalqiliya). Mostly it takes the form of a barrier some 60
to 100 metres wide, which includes buffer zones with trenches and
barbed wire, trace paths to register footprints, an electric fence
with sensors to warn of any incursion, a two-lane patrol road and
fortified guard towers at regular intervals. No-go areas of over 100
metres wide on each side of the barrier will be policed by IDF.
Israel has undertaken to install some 27 agricultural crossings and
5 general crossings
for traffic and persons through the barrier but as yet little
progress has been made on these crossings.
8. Possibly, the Wall will assist in the achievement of the
Government’ s publicly declared goal - to prevent suicide bombers
from reaching Israeli territory. Even this, however, is doubted by
some who point to the fact that most suicide bombers have passed
through checkpoints and that the Wall will not deter persons
determined to cross into Israel to commit acts of terrorism.
That this is a valid complaint is borne out by the comment of the
Israeli State Comptroller in his report of July 2002 that “ IDF
documents indicate that most of the suicide terrorists and car bombs
crossed the seam area into Israel through the checkpoints, where
they underwent faulty and even shoddy checks” .
9. The Wall does not follow the Green Line, that is the 1967
boundary between Israel and Palestine which is generally accepted as
the border between the two entities. Instead, it follows a route
that incorporates substantial parts of Palestine within Israel. At
present the Wall intrudes six to seven kilometres within Palestine,
but there are proposals to penetrate still deeper into Palestinian
territory in order to include the settlements of Ariel, Immanuel and
Kedumim. In some places the winding route creates a barrier that
completely encircles Palestinian villages while at many points it
separates Palestinian villages from the rest of the West Bank and
converts them into isolated enclaves. Qalqiliya, a city with a
population of 40,000, is completely
surrounded by the Wall and residents can only enter or leave through
a single military
checkpoint open from 7 a.m. to 7 p.m. Palestinians between the Wall
and the Green Line will effectively be cut off from their land and
workplaces, schools, health clinics and other social services. Much
of the Palestinian land on the Israeli side of the Wall consists of
fertile agricultural land and some of the most important water wells
in the region. The Wall is constructed on Palestinian lands
expropriated by Israeli military order, justified on grounds of
military necessity. Many fruit and olive trees had been destroyed in
the course of building the barrier. B’Tselem, a leading Israeli
human rights NGO, estimates that the barrier will cause direct harm
to at least 210,000 Palestinians living in 67 villages, towns and
cities.
10. Palestinians, unconvinced by Israel’ s assurances that they will
be allowed to pass through the crossings to be erected in the Wall,
are moving from their homes in the affected areas to the security of
what remains of Palestine. It is reported that already some 600
shops and enterprises have closed in Qalqiliya as a result of the
construction of the Wall. The Wall will therefore create a new
generation of refugees or internally displaced persons.
11. It is impossible to give complete facts about the Wall as its
final trajectory is still
surrounded in secrecy and uncertainty. The path of the Wall changes
regularly in response to demands from settlers and other political
interest groups within Israel. There is no transparency surrounding
the construction of the Wall and its final course seems to be known
only to an inner circle of the military and political establishment
within Israel. It is, however, widely expected that, following the
completion of the Wall separating Israel from the West Bank on the
western side, an eastern wall will be constructed, along the
mountain ridge west of the Jordan Valley, which will separate
Palestine from the Jordan Valley.
12. The Wall must be seen in the context of settlement activity
(discussed later) and the unlawful annexation of East Jerusalem.
Settlements in East Jerusalem and the West Bank are the principal
beneficiaries of the Wall and it is estimated that approximately
half of the 400,000 settler population will be incorporated on the
Israeli side of the Wall. Needless to say, it is extraordinary that
such action should be taken to incorporate illegal settlements that
form the subject of negotiations between Israel and Palestine. The
Wall will be built at great cost to Israel: it is projected that US$
1.4 billion will be spent on its construction. This simply confirms
the permanent nature of the Wall.
13. The Wall has serious implications for human rights. It further
restricts the freedom of movement of Palestinians, restricts access
to health and education facilities and results in the unlawful
taking of Palestinian property. However, the Wall has more serious
implications as it violates two of the most fundamental principles
of contemporary international law: the prohibition on the forcible
acquisition of territory and the right to self-determination.
14. Like the settlements it seeks to protect, the Wall is manifestly
intended to create facts on the ground. It may lack an act of
annexation, as occurred in the case of East Jerusalem and the Golan
Heights. But its effect is the same: annexation. Annexation of this
kind goes by another name in international law - conquest. Conquest,
or the acquisition of territory by the use of force, has been
outlawed by the prohibition on the use of force contained in the
Kellogg-Briand Pact of 1928 and Article 2, paragraph 4, of the
Charter of the United Nations. The prohibition on the acquisition of
territory by force applies irrespective of whether the territory is
acquired as a result of an act of aggression or in self-defence. The
Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations (General Assembly
resolution 2625 (XXV) of 24 October 1970, annex) declares that “ the
territory of a State shall not be the object of acquisition by
another State resulting from the threat or use of force. No
territorial acquisition resulting from the threat or use of force
shall be recognized as legal” . This prohibition is confirmed by
Security Council resolution 242 (1967) and the Oslo Accords, which
provide that the status of the West Bank and Gaza shall not be
changed pending the outcome of the permanent status negotiations.3
The Geneva Convention relative to the Protection of Civilian Persons
in Time of War (the Fourth
Geneva Convention) provides that protected persons in an occupied
territory shall not be deprived of the benefits of the Convention “
by any annexation … of the occupied territory” (art. 47).
15. The right to self-determination is closely linked to the notion
of territorial sovereignty. A people can only exercise the right of
self-determination within a territory. The amputation of Palestinian
territory by the Wall seriously interferes with the right of
self-determination of the Palestinian people as it substantially
reduces the size of the self-determination unit (already small)
within which that right is to be exercised.
16. The Special Rapporteur submits that the time has come to condemn
the Wall as an act of unlawful annexation in the language of
Security Council resolutions 478 (1980) and 497 (1981) which declare
that Israel’ s actions aimed at the annexation of East Jerusalem and
the Golan Heights are “ null and void” and should not be recognized
by States. Israel’ s claim that the Wall is designed entirely as a
security measure with no intention to alter political boundaries is
simply not supported by the facts.
IV. RESTRICTIONS ON FREEDOM OF MOVEMENT AND
THE HUMANITARIAN CRISIS
17. Previous reports have described the serious restrictions on
freedom of movement
imposed on the Palestinian people by the Occupying Power.
Checkpoints, closures and curfews are words that fail to capture the
full enormity of what is happening today in the West Bank and Gaza.
A checkpoint is not simply a military outpost on a highway that
checks the documents of pedestrians and traffic that seek to proceed
along the road. Every day thousands of Palestinians must pass
through these checkpoints in order to travel from home to work, to
reach schools and
hospitals and to visit friends and family. Every day Palestinians
are compelled to waste hours passing through these checkpoints.
Frequently, Palestinians are obliged to leave their vehicles at one
checkpoint and to walk along dusty roads to another checkpoint to
take a taxi to their destination. Accounts of rudeness, humiliation
and brutality at the checkpoints are legion.
Ambulances are often delayed and women give birth to children at
checkpoints. Checkpoints are not so much a security measure for
ensuring that would-be suicide bombers do not enter Israel, but
rather the institutionalization of the humiliation of the
Palestinian people. Similarly, a curfew is not simply a restriction
on leaving one’ s home. It is the imprisonment of the people within
their own homes. Unable to go to work, to buy food, to go to school,
to visit hospitals or to bury their dead, they are confined within
the walls of their own homes while the IDF patrols their streets.
Statistics of checkpoints and curfews cannot accurately portray the
obscenity of the
situation. Unfortunately, Israelis are protected from seeing what
their army is doing to their subjugated neighbour by laws that
restrict Israelis from seeing what is happening. The acclaimed
Palestinian author, Raja Shehadeh, described the situation in his
recent book When the Bulbul Stops Singing: A Diary of Ramallah Under
Siege:4 “ During the first intifada, the movement of both people
into the land of the other continued to be possible. … All sorts of
relations developed between the people on the two sides of the
divide. None of this has been possible this time. With the exception
of a few determined Israeli journalists, it was left to the
army to present to the Israeli people the reality of the Occupied
Territories. The prohibition against travel by both sides to each
other’ s territories meant that the demonization could continue
unchallenged.”
18. The task of the Special Rapporteur is to report on facts.
Curfews continue, but without the severity of 2002. From November
2002 to April 2003, an average of 390,000 civilians were under
curfew compared with 520,000 in the second half of 2002. However,
people under curfew in Hebron, Jenin and parts of Gaza were
frequently under tighter and more continuous curfew in 2003.
19. There are some 300 checkpoints or roadblocks, including about
140 checkpoints manned by the military. However, in late July 2003 a
number of roadblocks were removed within the context of the
implementation of the road map. Checkpoints vary in nature and
include permanent checkpoints, mobile checkpoints, unmanned
roadblocks, dirt walls, earth mounds, concrete blocks, iron gates
and trenches dug around villages and towns. Sometimes tanks or
military vehicles are used as roadblocks. These checkpoints or
roadblocks, around every town and major road junction, divide the
OPT internally. Eight commercial checkpoints divide the
West Bank into the separate cantons of Hebron, Bethlehem, Jericho,
Ramallah, Nablus, Tulkarem, Qalqiliya and Jenin. Each district has
one official commercial entrance. Commercial goods must be unloaded
and transferred to another vehicle on the other side of the
checkpoint (“ back-to-back transport” ). Checkpoints for ordinary
people likewise sometimes require back-to-back transfer. These
checkpoints divide the West Bank into a patchwork of cantons. Since
March 2002, permits have been required to travel from one district
to another.
Gaza is totally isolated from the rest of Palestine. It too,
however, is partitioned into three separate cantons by checkpoints.
These measures have not prevented the movement of militants between
different towns or regions or between Palestine and Israel. They do
not protect settlements which are already well protected by the IDF.
Instead, internal checkpoints restrict internal trade within the OPT
and restrict the entire population from travelling from village to
village or town to town. They must therefore be seen as a form of
collective punishment.
Writing in Ha’aretz on 27 July 2003, the columnist Gideon Levy wrote
that the purpose of checkpoints is “ to make the lives of the local
residents as miserable as possible” .
Unfortunately, the Israeli representatives appearing before the
Human Rights Committee on 24 and 25 July 2003 made no serious
attempt to address the issue of checkpoints. Indeed, there seemed to
be no appreciation on their part of the hardships and humiliation
caused by checkpoints. 20. Checkpoints, closures and curfews have
had a major impact on the Palestinian economy.According to a World
Bank report of May 2003, “ The bulk of Palestinian economic losses
stem from closure and curfew.” 5 This has resulted in unemployment
(which now stands at 40 per cent in the West Bank and Gaza) and
poverty (60 per cent of the people live on less than US$ 2 per day;
2 million live in poverty, dependent on food from international
donor agencies). Checkpoints and curfews have also led to a drop in
health standards resulting from inability to access hospitals and
clinics, the impossibility of carrying out health-care programmes
(for example, vaccinations) and the psychological trauma arising
from the physical, economic and social consequences of occupation.
Checkpoints have also resulted in the failure to acquire
nutritious food and sufficient clean water. The obstruction of
ambulances at checkpoints remains a serious problem. In the past
year, about 60 ambulances per month were held up at checkpoints of
which a quarter were denied passage. In March 2003, 15 ambulances
were fired upon. Children have suffered dramatically. Schools are
closed by curfew and checkpoints make it difficult for both teachers
and children to reach schools. Twenty-two per cent of children under
the age of 5 suffer from acute or chronic malnutrition while the
breakdown of family life has had a severe impact on children.
21. There is a humanitarian crisis in the West Bank and Gaza. It is
not the result of a natural disaster. Instead, it is a crisis
imposed by a powerful State on its neighbour.
V. LOSS OF LIFE AND THE KILLING OF CIVILIANS
22. For both human rights law and international humanitarian law the
protection of human life is a primary goal. Article 6 (1) of the
International Covenant on Civil and Political Rights states that “
Every human being has the inherent right to life. This right shall
be protected by law. No one shall be arbitrarily deprived of his
life.” While accepting that combatants engaged in armed conflict
would be exposed to life-threatening situations, international
humanitarian law seeks to limit harm to civilians by requiring that
all parties to a conflict respect the principles of distinction and
proportionality. The principle of distinction, codified in article
48 of Protocol I
Additional to the Geneva Conventions of 12 August 1949, requires
that “ the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their
operations only against military objectives” . Acts or threats of
violence the primary purpose of which is to spread terror among the
civilian population, are prohibited (art. 51 (2)). The principle of
proportionality, codified in article 51 (5) (b), prohibits an attack
on a military target “which may be expected to cause incidental loss
of civilian life, injury to civilians, [or] damage to civilian
objects … which would be excessive in relation to the concrete and
direct military advantage anticipated” . That these principles apply
to both Israelis and Palestinians was confirmed by the High
Contracting Parties to the Fourth Geneva Convention when, in a
declaration issued on 5 December 2001, they called upon both parties
to the conflict to:
“… ensure respect for and protection of the civilian population and
civilian objects and to distinguish at all times between the
civilian population and combatants and between civilian objects and
military objectives.”
23. Sadly, neither party to the conflict in the region has paid
proper respect to these
principles as the death toll has continued to rise. Since the start
of the second intifada in September 2000, over 2,755 Palestinians
and over 830 Israelis have been killed
and 28,000 Palestinians and 5,600 Israelis have been injured. Most
have been civilians.
Five hundred and fifty children have been killed, of whom 460 were
Palestinians and 90 Israelis. The number of Palestinian children
killed, mainly in air and ground attacks, has increased in 2003.
Within Israel, most deaths have been caused by suicide bombers.
24. The assassination of Palestinian militants has intensified. From
October 2000
to April 2003, the IDF has killed more than 230 Palestinians,
including 80 children, women and innocent bystanders, in
assassination actions. Over 300 persons have been injured in these
actions. In the period 10-14 June 2003, the IDF killed 27
Palestinians and wounded dozens of others in a series of
extrajudicial killings carried out by helicopter gunships in the
Gaza Strip.
These attacks included an unsuccessful assassination attempt on Dr.
Abdel Aziz Al-Rantisi, a senior political leader of Hamas. Four
people were killed and 35 injured while 29 nearby apartments were
damaged. On 12 June 2003, IDF helicopters bombarded the car of
Yasser Taha. He was immediately killed, together with his wife and
young daughter. In addition, five other civilians were killed in the
attack and 36 were wounded, including 10 children.
25. In June 2003, a number of NGOs commenced legal proceedings to
stop assassinations. This matter is still before the Israeli High
Court of Justice, which has refused a request for a temporary
injunction against further assassinations. Judge Antonio Cassese,
former President of the International Criminal Tribunal for the
Former Yugoslavia, has submitted an expert opinion to the Court in
which he asserts that assassinations of this kind could be
considered as war crimes. In his opinion, he maintains that the
killing of civilians suspected of terror activity, when no direct
belligerent operation in which they are involved is taking place,
substantively infringes the basic principle that armed forces must
distinguish between combatants and civilians. He further argues that
suspects should be arrested and tried, which is often possible in
the light of Israel’ s control of the OPT.
26. Israel justifies its policy and practice of assassinations on
grounds of self-defence and claims that it is not possible to arrest
and try suspects, particularly where they are in areas controlled by
the Palestinian Authority. The evidence on this point is
inconclusive as there are certainly some instances in which arrests
could have been made in the light of Israel’ s capacity to exercise
its jurisdictional power within the areas controlled in theory by
the Palestinian Authority. The failure to attempt such arrests
inevitably gives rise to suspicions that Israel lacks evidence to
place such persons on trial and therefore prefers to dispose of them
arbitrarily.
27. The indiscriminate use of violence is further illustrated by the
use of flechette shells in Gaza. The use of such anti-personnel
weapons in such a densely populated area as Gaza exposes civilians
to great risk and fails to take account of the need to distinguish
between civilians and military objectives. On 27 April 2003, the
Israeli High Court of Justice refused to intervene in the army’ s
choice of weapons because flechettes are not banned outright under
international law.
28. The failure of the IDF to investigate crimes committed by its
members in the OPT has long been criticized. In June 2003, this
criticism was confirmed when the Judge Advocate General stated that
a mere 55 investigations into shooting incidents had been opened
since the beginning of the second intifada, resulting in only six
indictments.
VI. PRISONERS
29. At the time of writing this report, there are some 6,000
Palestinians in Israeli prisons and detention centres. Some have
been tried, some have not. The number of those detained includes 175
juveniles and 70 women. Approximately 800 persons are held in
administrative detention, that is detention by administrative order
rather than judicial procedure. The issue of prisoners has become a
major obstacle in the implementation of the road map. Israel is
reluctant to release more than 540 prisoners while the Palestinian
Authority demands that all prisoners be released.
30. There are serious complaints about the treatment of prisoners
that are supported in
varying degrees by respectable non-governmental organizations such
as the Public Committee Against Torture in Israel (PCATI), the World
Organization against Torture (OMCT), the Defence for Children
International - Palestine Section, LAW - The Palestinian Society for
the Protection of Human Rights and the Environment, Al-Haq and the
Mandela Institute For Human Rights. These complaints cover all
prisons and detention centres and include men, women and children
held in imprisonment as well as administrative detainees. On the one
hand, these complaints cover allegations of overcrowding, disgusting
prison conditions and lack of proper medical care. On the other
hand, they include serious allegations of inhuman and degrading
treatment, sometimes amounting to torture.
31. In 1999 the Israeli High Court of Justice ruled that various
methods of torture employed by the General Security Service (GSS),
such as violent shaking, covering the head with a sack, tying to a
small tilted chair or position abuse (shabeh), sleep deprivation and
painful shackling were, when applied cumulatively, illegal. Despite
this, there is considerable evidence that these methods are still
employed during the interrogation of adults and juveniles. In a
publication entitled Back to a Routine of Torture covering the
period September 2001 to April 2003, PCATI estimated that for the
first half of 2003, “ each month, hundreds of Palestinians have been
subjected to one degree or another of torture or other cruel,
inhuman or degrading treatment, at
the hands of the GSS and bodies working on its behalf. … The bodies
which are supposed to keep the GSS under scrutiny and ensure that
interrogations are conducted lawfully act, instead, as rubber stamps
for decisions by the GSS” . These allegations are difficult to
reconcile with the assurance given by the representatives of the
Israeli Government before the Human Rights Committee on 24 and 25
July 2003 that allegations of this kind had been properly
investigated and proved to be unfounded or justified on grounds of
necessity.
32. The Special Rapporteur finds himself in an awkward situation
when it comes to assessing evidence of this kind. Allegations of
torture and inhuman treatment are supported in varying degrees by
highly respected NGOs that have taken statements from former
prisoners and consulted with lawyers working within the system.
Moreover, there are serious doubts about the impartiality of the
investigations of these complaints carried out by the Israeli
authorities. The Special Rapporteur is denied access to Israeli
prisons and detention centres and to government officials who might
assist in the task of assessing the validity of allegations on this
subject. The Special Rapporteur therefore urgently calls upon the
Israeli authorities either to permit an
independent international committee to investigate such complaints
or to conduct a full-scale independent judicial inquiry into such
allegations itself. It has often been said that the degree of
civilization of a State can be measured by the way in which it
treats prisoners. At present Israel, which prides itself on a high
standard of criminal justice within its own borders, runs the risk
of forfeiting this reputation by its consistent refusal to respond
to criticisms of treatment of prisoners from the OPT.
VII. DESTRUCTION OF PROPERTY
33. The destruction of property in the OPT continues unabated. Three
principal reasons are advanced by Israel for the destruction of
homes and agricultural property. First, the interests of security or
military necessity may require houses to be destroyed and
agricultural land to be cleared (“ shaved” or “ swept” ) to prevent
such houses or trees from being used to provide cover for militants
bent on attacking settlements or IDF positions. This has resulted in
the creation of wide buffer zones adjacent to settlements and roads
used by settlers. Secondly, the homes of those who have committed
crimes against Israel are destroyed by way of punishment (although
the Israeli Government prefers to describe this as a form of
deterrence). Thirdly, houses built without administrative
permission, in a system in which permits are seldom granted, are
destroyed to assert respect for Israel’ s administrative regime.
These three reasons have been invoked by the Israeli authorities to
destroy thousands of homes and to lay bare vast areas of fertile
agricultural land.
34. The situation is particularly acute in Gaza. According to the
Commissioner-General of UNRWA, “At the end of May 2003, a total of
1,134 homes [had] been demolished by the Israeli military in the
Gaza Strip, making almost 10,000 individuals homeless.
Unfortunately, this is not a policy on the wane. During the first
two years of the intifada, the average number of homes demolished in
Gaza - a statistical category both depressing and surreal - was 32
per month. Since the start of 2003, the average has risen to 72.
Disturbingly, the publication of the road map to peace has so far
had no impact.” 7 The Special Rapporteur had the opportunity to
observe the devastation caused in Beit Hanoun at first hand when he
visited on 24 June 2003. Parts of this town had been reduced to a
wasteland as a result of the destruction of homes and orchards. It
appears that this act of large-scale devastation was in part a
punitive measure taken against homes and orchards in the
neighbourhood of a roadside bomb
aimed at an Israeli military vehicle.
35. The collective punishment of Palestinians in the form of
destruction of property has had serious consequences for the
Palestinian people and the environment of Palestine. According to
Jeff Halper, the Director of the Israeli Committee against House
Demolitions, “ The bulldozer has become as much a symbol of Israeli
occupation as the rifle and the tank” .
VIII. SETTLEMENTS
36. The international community is united in its opposition to
Israeli settlements in the OPT. It has repeatedly described them as
being in violation of the sixth paragraph of article 49 of the
Fourth Geneva Convention which prohibits the Occupying Power from
transferring parts of its own civilian population into the territory
it occupies. The road map makes it clear that the dismantling of
settlements is an important issue in the resolution of the
Israeli-Palestinian conflict.
37. There are at present some 200 settlements in the OPT containing
a total population of over 400,000. In the West Bank there are more
than 120 settlements with over 230,000 settlers, while in the Gaza
Strip there are 16 settlements with some 7,000 settlers. About
180,000 settlers live in the neighbourhoods of East Jerusalem.
Settlements often comprise fully developed towns
and villages. For instance, Ma’ aleh Adumim has a population 28,000
settlers. Roads
constructed to link settlements with each other and to allow access
to Israel have also resulted in the taking of Palestinian land.
38. Israel has given an equivocal undertaking to restrict the growth
of settlements to “ natural growth” and to dismantle “ unauthorized
settlements” , that is outposts and extensions to existing
settlements not authorized under Israeli law. Despite this, new
settlements are being built, as the Special Rapporteur saw on
several occasions, and existing settlements continue to grow. The
population growth in the settlements is three times that of Israel
itself. In 2002, the population in the Israeli settlements in the
West Bank grew by 5.7 per cent compared with 1.9 per cent in
Israel.8 The Israeli Government continues to offer financial
inducements to Israelis to settle in the OPT and in 2003 Israel
budgeted 1.9 billion new Israeli shekels for settlements. Further
evidence of the determination of the Israeli Government to entrench
the settlements is provided by the erection of the Wall (discussed
in chap. III above), the continued clearing of Palestinian land
within the proximity of settlements for security purposes and the
allocation of heavy military resources to protect settlements. (For
example, the 532 settlers who live in the centre of Hebron are
protected by some 100 Israeli soldiers.)
39. Settlements fragment Palestinian territory and seriously
undermine the prospects for Palestinian self-determination within a
viable territorial unit. A recent study carried out by B’Tselem
estimates that 41.9 per cent of the total land area of the West Bank
is effectively under the control of settlements, including developed
areas, non-developed municipal areas and land reserves.
40. The harsh truth is that there is no “ freeze” on the
construction or growth of settlements. Moreover, the Israeli
Government is taking no steps to reverse this pattern of growth. A
poll conducted by the Israeli group “ Peace Now” in July 2003 has
shown that 74 per cent of the settlers in the OPT would leave their
homes in return for compensation. If the Israeli Government were
serious about its undertaking to halt the growth of settlements, it
might give serious attention to budgeting funds for the repatriation
of settlers and their compensation rather than allocating such
substantial funding to the settlements and to the building of the
Wall.
IX. CONCLUSION
41. The occupation of the OPT continues to result in widespread
violations of human rights, affecting both civil and socio-economic
rights, and of international humanitarian law. Israel’s
justification for these actions is that they are necessary in the
interests of its own national security. As indicated at the
beginning of this report, the lawfulness of Israel’ s response is to
be measured in accordance with the principle of proportionality. The
Special Rapporteur finds it difficult to accept that the excessive
use of force that disregards the distinction between civilians and
combatants, the creation of a humanitarian crisis by restrictions on
the mobility of goods and people, the killing and inhuman treatment
of children, the widespread destruction of property and, now,
territorial expansion can be justified as a proportionate response
to the violence and threats of violence to which Israel is
subjected. As stressed in this report, the construction of the Wall
within the West Bank and the continued expansion of settlements,
which, on the face of it,
have more to do with territorial expansion, de facto annexation or
conquest, raise serious doubts about the good faith of Israel’ s
justifications in the name of security.
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