(03 Nov. 2015) Report of the Special Rapporteur on the Occupied Palestinian Territory Highlights Israeli Practices Consistent with Colonialism and Apartheid

The BADIL Resource Center for Palestinian Residency and Refugee Rights (BADIL) welcomes the recent release of the report[1] of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, and commends the mandate-holder for highlighting a wide range of grievous rights abuses perpetrated by Israel throughout the occupied Palestinian territory (oPt), and the devastating impact that Israel’s ongoing occupation has had on the Palestinian populace. BADIL also welcomes the recognition by the mandate-holder that the continued refusal by the government of Israel to permit the mandate-holder (as well as a host of other independent investigative bodies) access to the oPt is both unacceptable and untenable.

BADIL therefore takes this opportunity to congratulate the mandate-holder on an important report, whilst also emphasizing the need to follow legal analyses through to their full, logical conclusion. To this end, BADIL pledges its continued, full support and assistance to the mandate.

BADIL particularly welcomes the extensive consideration given by the mandate-holder both to Israel’s continued policy settlement construction, and to the host of crimes and rights abuses which accompany this policy, not least that of the forcible transfer of Palestinians which necessarily precedes settlement construction. Indeed, as noted by the mandate-holder, “Israeli policies and practices related to settlements continue to be central to most violations of the human rights of Palestinians in the West Bank, including East Jerusalem, and put immense pressure on Palestinians to leave their homes and lands”.[2] The report also notes the issuing in 2014 by the Israeli government of tenders for almost 4,500 housing units in the oPt, highlighting Israel’s commitment to continue to perpetrate grave breaches of the Fourth Geneva Convention.[3]

As noted in the report, the forced displacement of Palestinians is pursued through a variety of means, including extensive demolitions (made possible by an entirely discriminatory planning policy, and including demolition or confiscation of emergency structures provided by donors[4]), devastation of livelihoods;[5] restricted access to basic amenities including water and electricity; and violence and harassment from settlers and the Israeli armed forces.

To this end, BADIL particularly commends the mandate-holder for identifying the causal link between policies of the Israeli government and abhorrent attacks by settlers on Palestinian inhabitants of the oPt,[6] such as that on the Dawabsheh family in the village of Duma on 31 July 2015, in which Ali Dawabsheh, aged 18 months, was burned to death, whilst his father, Saad, and mother, Reham, both later died in hospital. Such a link was explicitly raised by BADIL in a written statement submitted during the 30th regular session of the United Nations Human Rights Council.[7]

Though the mandate-holder is right to raise Israel’s intended forcible transfer of some 46 Palestinian Bedouin communities resident in the central West Bank as being entirely unlawful and demanding immediate attention,[8] as well as Israel’s continued efforts to implement these plans despite unequivocal calls from the international community to cease them, it should be noted that Palestinians have historically suffered forcible transfer at the hands of the Israeli state.[9] Indeed, this devastating crime is being perpetrated throughout the oPt on a daily basis, and the issue was specifically addressed in a position paper issued by the Palestinian Human Rights Organizations Council on 20 August 2015.[10] It is crucial to note that is not a prerequisite for a finding of forcible transfer that the displacement in question be part of an officially-stated plan, or that a formal ‘relocation’ site be identified. To this end, an objective consideration of the regular displacements suffered by Palestinians on account of the aforementioned acts – and the resulting coercive environment – would appear entirely compatible with a finding a forcible transfer, strictly prohibited under Article 49 of the Fourth Geneva Convention.

The report also highlights a consistent failure on behalf of the Israeli government to afford to Palestinians adequate domestic legal protection or remedies for injury suffered. Areas in which Palestinians are denied such protection or redress include in relation to demolition orders,[11] forced evictions,[12] the proceedings of Israeli military courts,[13] attacks by settlers[14] or excessive use of force by members of the Israeli armed forces.[15] Similarly, accountability for Israelis who plan or perpetrate unlawful acts against Palestinians inside the oPt is conspicuous in its absence, and the report correctly observes that little confidence is placed by Palestinian non-governmental organizations in internal Israeli investigative processes,[16] whilst there exists a “distinct risk that relative inaction by the international community will facilitate a continuation of the destructive cycle of human rights violations and violence.”[17] This failure to hold Israel accountable for its actions has “convinced” the mandate-holder that the situation across the Occupied Palestinian Territory is indeed worsening and that violations of the human rights of Palestinians living under Israeli occupation are being further entrenched.[18]
Whilst BADIL fully supports this and other assessments , there still remains in the report an analytical ‘gap’ whereby various grievous rights violations are considered as disparate, rather than as representing the component parts of broader systems of discrimination. As previous mandate-holder, Professor John Dugard, has observed,[19] in the case of Israel there exists a need to ‘connect the dots’; widening the angle of review so as to advance “the legal analysis of the situation in the West Bank and Gaza beyond the ‘habitual focus on specific actions undertaken within the occupation, as distinct from the nature of the occupation as a normative regime’, and [facilitate] an assessment of the cumulative effect of almost half a century of belligerent occupation where patterns of domination have proliferated.[20]

In the present report such ‘dots’ are clearly identified. For instance, the mandate-holder states his grave concern at the impact of Israel’s ongoing settlement project upon the Palestinian right to self-determination, and that such impact may now be irreversible.[21] The report also highlights the ‘strategic implications’[22] of Israeli settlement projects, and notes Israeli “aims to achieve a particular demographic balance in Jerusalem.”[23] Such observations are, again, entirely accurate, and align neatly with definitions of colonialism as laid out in international legal instruments, specifically the Declaration on the Granting of Independence to Colonial Countries and Peoples.[24] The Declaration asserts that asserts that “the right to self-determination is the right of all peoples to freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”, and defines the practice of colonialism as “the subjection of peoples to alien subjugation, domination and exploitation, [which] constitutes a denial of fundamental human rights”. Previous mandate-holders have highlighted the Israeli policies identified in the present report as contravening the prohibition of colonialism.

Similarly, the present report outlines Israel’s systematic oppression of Palestinians in Area C. Such oppression stands in stark contrast to the treatment of illegal Jewish-Israeli settlers residing in the same territory, with the report noting the grave disparity in the polices applied to the two groups in relation to – inter alia - allocation of water;[25] planning and zoning,[26] and access to legal protection.[27] Indeed, the report goes so far as to identify “a pervasive sense of injustice in a system which appears inevitably pitted against the protected population.”[28] Such clear and systemic discrimination on grounds of race would appear entirely compatible with a finding of apartheid – defined in the Rome Statute as “inhuman acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime”.[29] Again, previous mandate-holders have reached the same conclusion in earlier reports.[30]

The significance of adopting appropriate and legally-rooted terminology cannot be overstated. To borrow rationale from the field of medicine, to devise a cure we must first identify the illness and, to this end, the language used by bodies committed to the protection of human rights inside the oPt is of great importance. In failing to ‘connect the dots’, and in diluting the terminology employed to describe and identify Israeli practices, we mislead and misinform key target audiences. Such language is not, therefore, ‘neutral’, but is instead actively damaging to the rights of Palestinians residing in the oPt. It encourages apathy and acquiescence among members of the international community who are best-placed to protect Palestinians, simultaneously fostering and maintaining an environment of Israeli impunity.

The present report is, therefore, a thoroughly-researched document which arrives at a number of highly significant conclusions, and does well to highlight the sheer breadth and systematic nature of rights abuses suffered by Palestinians at the hands of the Israeli occupying power. However, the analysis applied to these abuses stops just short of its natural conclusion. To this end, the report constitutes an important step towards delivering justice to Palestinians and holding to account perpetrators of rights abuses, yet, if the demonstrably discriminatory and punitive apparatus of a near half century-long belligerent military occupation is to be dismantled, it is essential that the language fits the crime.
[1]   Wibisono 25/09/15. A/70/392. Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
[2] Para.33
[3] Para.33
[4] Para.38
[5]    Para.37
[6]    Para.47
[7]    BADIL, 28/08/15. Settler Attacks on Palestinians are a Natural Result of Official Israeli Policy. Available at: http://www.badil.org/publication/press-releases/60-2015/4502-pr-en-280815-33.html
[8]    Para.41
[9]    Para.44
[10]   Palestinian Human Rights Organizations Council, 20/08/15. Joint Statement on Israeli Demolitions of Palestinian Structures inside Area C, and the Perpetration of Forcible Transfer of Palestinian Civilians. Available at:  http://www.badil.org/publication/press-releases/60-2015/4501-pr-en-200815-32.html
[11]   Para.39
[12]   Para.66
[13]   Para.85
[14]   Para.85
[15]   Para.85
[16]   Para.77
[17]   Para.14
[18]   Para.14
[19]   Dugard., Reynolds,. 2013. Apartheid, International Law and the Occupied Palestinian Territory (hereafter ‘Dugard & Reynolds’). The European Journal of International Law Vol.24, no.3, pg.911. Author writing not in capacity as mandate-holder
[20]   ibid. Pg.912
[21]   Para.13
[22]   Para.42
[23]   Para.68
[24]   UN General Assembly Resolution 1514 of 1960
[25]   Para.40
[26]   Para.39
[27]   Para.85
[28]   Para.85
[29]   Rome Statute. Art.7(2)(h)
[30]   For full consideration of Israeli practices in the oPt through the respective lenses of apartheid and colonization, see BADIL, July 2015. Israel’s Forcible Transfer of Palestinian Bedouin: Forced Displacement as a Pillar of Colonialism and Apartheid. Submission for the Special Rapporteur on the Situation of Human Rights in the Palestinian Territory occupied since 1967. Available at: http://www.badil.org/publication/press-releases/60-2015/4439-pr-en-1307155-25.html