Legal Analysis of Palestinian Civil Society: the Growing Complicity of the International Community in Human Rights Violations and Israeli Apartheid
by Melissa O’Donnell
The shrinking space for Palestinian civil society is nothing new.[1] It is inextricably linked to the way in which Israel systematically and cynically manipulates international law to achieve its own ends. In recent decades, Israel has been engaged in a delegitimization, smear and defamation campaign against Palestinian civil society that erroneously exploits necessary ambiguities and exceptions in international human rights law (IHRL) to erode the right of Palestinians to freedom of association on one hand, and the right to freedom of expression on the other. In simultaneously tarnishing an increasing number of Palestinian political and civil society organizations as terrorists, while systematically condemning Palestinian narratives as antisemitic, Israel is targeting the very foundations which international law recognizes as necessary for a vibrant civic space, and thus crucial for the realization of self-determination and liberation. Moreover, in so doing, Israel is successfully entangling and soliciting the international community, particularly a willing donor community, in direct service of the establishment and sustainment of its colonial-apartheid regime. That Israel is in violation of its legal obligations is beyond question.[2] This article will focus more on what this means for the international community’s responsibilities under international law.
Law Is Not an Objective Arbiter of Justice but a Mechanism of Power and Accountability
There are two points to be made at the outset that aide in illuminating the manipulation of international law by Israel and which can offer the international community a path for course correction that is in service of Palestinian self-determination. First, we must consider the political context in which the current state of IHRL came to be. For much of the early 20th Century, international law was crafted principally by Western colonial states who saw a narrower version of human rights as a mechanism to justify their colonial subjugations.[3] It is therefore hardly surprising that the unashamedly colonial project that is Zionist Israel is facilitated by international law. Yet, it was also in the decolonization wave of the 1960s that the bedrock of IHRL[4] was laid, fashioned in large part by the struggles of the Global South.[5] With greater pluralism arising from decolonization, human rights law came to reflect the needs and mechanisms by which the struggles for freedom of ordinary people against abusive power could be made manifest. Therefore, it is in service of this objective that a consideration of the ambiguities of IHRL should be analyzed and applied by the international community and all human rights lawyers.
Second and for this reason, law should properly be understood as a tool of power, deployed by those with the capacity to wield it to achieve their outcomes. Israel consistently couches its actions in the language of international law. That is a strategy, not evidence of an objective right. Understood as a tool, we also see how international law can be and is wielded by Palestinians, particularly Palestinian civil society organizations (CSOs), to further their struggle for liberation.[6] This is evident in the recent successes of Palestinians in the International Criminal Court and with the recent avalanche of international organizations finally labelling Israel an apartheid regime, after years of work by Palestinian CSOs. While these successes underscore the vital importance of civil society to the liberation struggle, it must be said that they have also precipitated a commensurate and renewed assault on Palestinian civil society that requires the urgent attention of the international community to how law is used and manipulated by Israel.
International Human Rights Law and the Status of Palestinian Civil Society
The legal framework by which Palestinian civil society – as human rights defenders – is protected, is set out in the Declaration on Human Rights Defenders adopted by consensus of the UN General Assembly, and notably co-sponsored by Israel in 1998.[7] In recognition of the crucial role CSOs play in contributing to the elimination of apartheid, colonialism, and foreign domination,[8] the Declaration reaffirms rights enshrined in legally binding human rights instruments and specifies how those rights apply to human rights defenders.[9]
The Declaration codifies these protections for individuals, groups and organs of society engaged in the promotion of human rights. This collective protection is derived from the collective dimension of the right to freedom of association that is well-established in international law.[10] Pursuant to this, the law on freedom of association protects associations in the performance of activities and in the pursuit of the common interests of their founders.[11] This means the law protects the right of the association to choose their members,[12] and those people and organizations with whom it associates. Relevantly, it also entails the right to access funding and resources, and recognizes that restrictions on funding can unduly hinder an organization in a violation of international law.[13] Fundamentally, the law recognizes that the right to freedom of association sits at the heart of an active civil society and a functioning democracy.[14]
The other foundational right for civil society is the right to freedom of expression and opinion,[15] as this right is recognized as essential to the ability to meaningfully claim and enjoy all other rights.[16] It includes expression and opinions that are unpopular, critical and cause discomfort. The right to freedom of expression is protected whether practiced collectively or individually.[17] As such, when considering civil society, it is impossible to separate the right to freedom of association from freedom of expression, as evidenced below.
Most importantly for the purposes of this article, international law recognizes these obligations as binding not just on Israel as the occupying power, but that they confer extraterritorial obligations on all states with jurisdiction over the recognition and protection of the rights of an individual or organization.[18] This is reinforced by the recognition in law that states have a heightened duty to respect and to protect the rights of human rights defenders.[19] In other words, all states, especially donor states, directly owe these legally binding protections and obligations to Palestinians, especially Palestinian CSOs, when exercising control and jurisdiction over them, including when the actions of these states have a foreseeable impact on the enjoyment of these rights.
This is all the more important to consider given that international law also recognizes that in their absence these rights are significant to the establishment of apartheid systems.[20] The Apartheid Convention enshrines as among the defining characteristics of the crime of apartheid, both the systematic, deliberate denial of rights such as freedom of association and of expression to individuals and organizations, as well as the persecution of organizations for speaking out against apartheid, when committed for the purpose of establishing and maintaining a system of racial domination and oppression.[21] Ultimately, denial of these rights violates the right to self-determination, a peremptory norm that underpins international law, particularly the architecture of IHRL.[22]
This illuminates clearly the fact that this iteration of Israel’s strategy to shrink space for Palestinian civil society is aimed at eroding the foundation of civil society laid out in the Declaration. Subject to the discussion below, this is in clear violation of fundamental principles of IHRL. Furthermore, these particular practices are pivotal to sustaining Israel’s colonial-apartheid regime.
Silencing Palestinian CSOs Through Exploitation of Gray Areas Of Human Rights Law
There are permissible restrictions to freedom of association and freedom of expression scaffolded into the international human rights framework. The highest level of derogation set out in Article 4 of the International Covenant on Civil and Political Rights (ICCPR) applies “in a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”; clearly inapplicable in the context of third state obligations directly owed to Palestinian CSOs.[23] There are further rights-specific limitations on the extent of freedom of association found in Article 22(2) of the ICCPR that enable restrictions, inter alia, in the interests of national security, and to freedom of expression found in Articles 19(3) and 20 that enable restrictions to protect the rights and reputation of others, for the protection of national security, and to prohibit incitement to hatred. It is these that Israel is exploiting in service of soliciting third states in its violations against Palestinian civil society.
“In the interests of national security”: tarnishing Palestinian resistance as terrorism
In light of a global proliferation of counter-terrorism measures, these exemptions have provided fertile ground to enable the shrinking of global civil space.[24] The adoption by the UN Security Council of Resolution 1373, in 2001, conferred on states binding obligations to, inter alia, criminalize acts of terrorism, acts in support of and of financing terrorism, and triggered a plethora of counter-terrorism legal instruments.[25] However, the absence of a clear definition for terrorism has allowed states to systematically misappropriate the term to prohibit a wide gamut of associations, activities, and political expression questioning the legitimacy of the state; this has been particularly apparent with social movements of indigenous people, legitimate political dissent, and resistance.[26] Israel’s terrorist designation of six Palestinian CSOs unquestionably falls into this category of misuse in violation of its international law obligations.[27] It serves the strategic purpose of smearing all actions of Palestinian CSOs, silencing their vital role in exposing Israeli violations, and attempting to activate the broader global counter-terrorism regime in order to engage other states in the shrinking of legitimate Palestinian civic discourse.
Legally, Israel’s strategy should fail for two reasons. First, the broad characterization of Palestinian resistance as terrorism is inconsistent with international law. It is widely recognized that the occupied Palestinian territory is under a state of belligerent and prolonged occupation and as such the principles of international humanitarian law (IHL) apply to govern the use of armed violence by Palestinian political resistance groups.[28] It is also by now well recognized in customary international law that, on account of suffering colonization, armed repression, and the denial of their right to self-determination,[29] the Palestinian people possess the right to resist Israel by all available means, including through armed struggle.[30] Palestinian actions may in specific circumstances constitute violations of IHL,[31] but to label all Palestinian actions in legitimate resistance to Israel as terrorism is to unlawfully criminalize a broad swathe of conduct in contradiction to the weight of legal evidence and state practice that considers such actions lawful – as exemplified most recently vis-à-vis Ukrainians’ right to resist Russia. It follows that it is particularly erroneous to associate with terrorism the actions, associations, and messaging of Palestinian civil society, whether this activity is in defense of the right to engage in lawful political resistance, and especially when in defense of human rights broadly.[32] Their goals, activities and political expression in documenting and exposing Israel’s violations are inevitably contrary to Israel’s interests, but this does not constitute terrorism; it is unlawful to criminalize the defense of human rights.[33]
Second, restricting the actions and activities of Palestinian civil society constitutes a breach of IHRL obligations that other states hold vis-à-vis Palestinian CSOs. Even if enlivened, international counter-terrorism obligations are not mutually exclusive of human rights obligations,[34] and to consider these bodies of law separate is actually at odds with the broader doctrine of counter-terrorism law.[35] The law does not allow national security restrictions on the freedoms of association and of expression unless in accordance with the procedural requirements set out in Articles 19(3) and 22(2), consistent with the doctrines of necessity and proportionality, and in compliance with all other areas of international law.[36] For third states, the Special Rapporteur on Freedom of Association has said that foreign and international donors have responsibilities and must pay due attention to the local political, social and economic context in which associations operate to determine their obligations, and to respect the autonomy of the association.[37] Directly implicit in this is the obligation to seek out and listen to local perspectives to understand the applicable context, since the failure to consider the context or to reframe the context in accordance with more convenient or dominant narratives compounds any violations of the right to freedom of association and unduly infringes on other obligations with respect to freedom of expression.
Yet states are failing to apply a human rights-based approach to their obligations under international law by accepting Israel’s misuse of international law. The mere implication of terrorism is in and of itself a mechanism of silencing, and it does not withstand scrutiny in the Palestinian context, where CSOs play a vital role exposing violations and advancing Palestinian self-determination and protecting the right to legitimate resistance to colonial domination. Instead, overly restrictive donor frameworks derived from this misapplication of law, actually impair the ability of Palestinian CSOs to self-determine their associations and their advocacy in violation of IHRL.[38]
“Incitement to hatred”: erasing Palestinian narratives as anti-Semitism
This strategy is in part foreshadowed by the longstanding smearing of all Palestinian narratives as anti-Semitic and therefore in the realm of hate speech, thus allowing them to be more readily recast as incitement to terrorism. This too, is an exploitation by Israel aligned with a global trend in which ‘real’ incitement is increasingly prevalent, and genuine critique of the state increasingly silenced and persecuted.[39]
International law endeavors to strike a careful balance between the importance of scrutiny, open debate, and criticism of belief systems, opinions, and institutions enshrined in Article 19; and not allowing the advocating of hatred that incites violence, hostility, or discrimination against an individual or group of individuals by reason of their nationality, racial, or religious background at Article 20.[40] The law sets a high bar for what will constitute speech requiring restriction. It does this both in the language of “incitement” which connotates “statements about national, racial or religious groups that create an imminent risk of discrimination, hostility or violence against persons belonging to those groups”,[41] and in the six-part threshold test adopted in the Rabat Plan of Action.[42] Then, if such speech meets that level, restrictions must nevertheless be in accordance with clearly stated laws, necessary in the circumstances, and proportional to the harm.
The increasing restrictions placed by other states on Palestinian narratives that criticize, scrutinize, and otherwise endeavor to hold the Israel accountable, based on spurious assessments of such views being anti-Semitic, is an abuse of international law directed to silence effective and legitimate discourse. It ignores the socio-political context of colonization, apartheid, and belligerent occupation in which Palestinian CSOs operate,[43] and the severely asymmetrical standpoint of Palestinians in relation to Israel.[44] It is also relevant to consider that the Jewish identity of their oppressors and the State are not materially relevant to Palestinian narratives but invoked by Israel in its claiming to represent all Jewish people and systematic citing of (Europe’s history of) rampant anti-Semitism. In the face of a heightened obligation to protect human rights defenders, any appeal to countervailing international legal obligations on bigotry to justify such restrictions or deny obligations to Palestinian CSOs is indicative of complicity with Israel’s agenda.
In Collusion With a Colonial-Apartheid Regime
In criminalizing and delegitimizing Palestinian CSOs, their associations, and their narratives exposing Israel’s crimes to the international community and protecting Palestinian victims of these crimes, Israel is effectively creating a coercive environment in which the Palestinian people are isolated from the global community, deprived of any protection or recourse, and forced into silence.[45] By suppressing any form of resistance, the Israel is able to entrench its settler-colonial and apartheid regime, and its erasure of the indigenous Palestinian people. The international community has clear obligations of non-recognition and cooperation to bring an end to this apartheid situation under Article 41 of the Draft Articles on State Responsibility.[46] The international community is not only failing to enact these obligations, but is also engaged in direct violation of their own human rights obligations vis-à-vis the Palestinian people, and donor states are increasingly complicit in the commission of an internationally wrongful act, a higher violation of the Draft Articles on State Responsibility.[47] Accordingly, the international community must urgently recognize its responsibility, and instead adopt a genuine human rights-based approach that is in partnership with and in service of the Palestinian people’s right to self-determination and liberation from colonial oppression.
* Melissa O’Donnell is an Australian social justice advocate, researcher and human rights lawyer, focused on sovereignty, self-determination, structural accountability and social change.
[1] Since its creation in 1948, Israel has continuously renewed its “state of emergency” exploiting Article 4 of the ICCPR and arbitrarily derogating from its obligations under international law in order to justify its silencing of Palestinian organizations and stifling of dissent; see BADIL, Written Submission to the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association to Inform Thematic Report on Trends, Developments, and Challenges to the Ability of Civil Society Organizations to Access Resources, Including Foreign Funding, to be Presented to the HRC at its 50th Session, 18 February 2022, available at written-submission-badil-sr-feb2022-1645613684.pdf (hereinafter, BADIL, 2022).
[2] See detailed explanation of Israel’s violations, ibid.
[3] Amnesty International, “Decolonising human rights”, Speech delivered by Salil Shetty, Secretary General of Amnesty International, at the London School of Economics on 22 May 2018, available at https://www.amnesty.org/en/latest/news/2018/05/decolonizing-human-rights-salil-shetty/
[4] The core of international human rights law is found in the International Convention on Civil and Political Rights (ICCPR) and the International Convention of Economic, Social and Cultural Rights (ICESCR), both of which were adopted in 1966, preceded by the International Convention on the Elimination of All Forms of Racial Discrimination adopted in 1965.
[5] Amnesty International, supra n 3.
[6] See Noura Erakat, Justice for Some: Law and the Question of Palestine, (Stanford University Press, 200).
[7] Universal Rights Group, “The history of the UN Declaration on Human Rights Defenders: its genesis, drafting and adoption”, website, 11 March 2019, available at: https://www.universal-rights.org/blog/the-un-declaration-on-human-rights-defenders-its-history-and-drafting-process/
[8] G.A. Res. 53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (9 December 1998), preamble, available at: undocs.org/en/A/RES/53/144 (accessed 18 April 2022) (hereinafter “Declaration on Human Rights Defenders”).
[9] While the Declaration is not strictly legally binding itself, it reflects binding principles found in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), among others, and its adoption by consensus after 14 years of negotiations represents a very strong commitment by States to its implementation: see Michel Forst (Special Rapporteur on human rights defenders), Report of the Special Rapporteur on the situation of human rights defenders: Human rights defenders operating in conflict and post-conflict situations, UN Doc. A/HRC/43/51 (30 December 2019), para [21]; and Special Rapporteur on human rights defenders, Commentary to the Declaration on human rights defenders: an essential guide to the right to defend human rights, (July 2011), p. 5, available at: https://tinyurl.com/5n6t64d7.
[10] Special Rapporteur on human rights defenders, Commentary to the Declaration on human rights defenders: an essential guide to the right to defend human rights, (July 2011), p. 36, available at: https://tinyurl.com/5n6t64d7; and for example, ECtHR, Refah Partisi (the Welfare Party) and others v. Turkey [GC] (Application nos. 41340/98, 41342/98, 41343/98 and 41344/98, judgement of 13 February 2003), paras. 87-88. See also ECtHR, National Union of Belgian Police v. Belgium, Application no. 4464/70, 27 October 1975, paras. 39-40; and Council of Europe, Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe, 10 October 2007, para. 5 which states that “NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them.” See also Inter-American Court of Human Rights, Huilca-Tesce v. Peru, 3 March 2005, Series C no. 121, paras. 69-71, < http://www.corteidh.or.cr/docs/casos/articulos/seriec_121_ing.pdf>, cited in Council of Europe, European Commission for Democracy through Law (Venice Commission), Joint Guidelines on Freedom of Association (2014), p. 15, available at: https://tinyurl.com/5cbfp8ft.
[11] Council of Europe, European Commission for Democracy through Law (Venice Commission) and OSCE Office for Democratic Institutions and Human Rights, Joint Guidelines on Freedom of Association, Principle 4, available at: https://tinyurl.com/5cbfp8ft; Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted on 31 October 2006, para. 7.2, cited in Maina Kiai (Special Rapporteur on freedom of peaceful assembly and of association), Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association: Ability of associations to access financial resources: a vital part of the right to freedom of association, UN Doc. A/HRC/23/39 (24 April 2013), para [16].
[12] See Council of Europe, European Commission for Democracy through Law (Venice Commission), Joint Guidelines on Freedom of Association (2014), Principle 3, available at: https://tinyurl.com/5cbfp8ft.
[13] See G.A. Res. 53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (9 December 1998), Article 13, available at: undocs.org/en/A/RES/53/144 (accessed 18 April 2022); Council of Europe, European Commission for Democracy through Law (Venice Commission), Joint Guidelines on Freedom of Association (2014), Principle 7, available at: https://tinyurl.com/5cbfp8ft; Maina Kiai (Special Rapporteur on freedom of peaceful assembly and of association), Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association: Ability of associations to access financial resources: a vital part of the right to freedom of association, UN Doc. A/HRC/23/39 (24 April 2013), para [8]-[18]; Margaret Sekaggya (Special Rapporteur on Human Rights Defenders), Report of UN Special Rapporteur on the situation of human rights defenders: Human rights defenders and the right to freedom of association: interventions and positions of the Special Rapporteur”, UN Doc A/64/226 (4 August 2009), para [91]-[100]; and Maina Kiai (Special Rapporteur on freedom of peaceful assembly and of association), Best practices related to the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/20/27 (21 May 2012), para [51]-[76], available at: https://tinyurl.com/25zn4sb6.
[14] Hina Jilani (Special Rapporteur on Human Rights Defenders), Report of the Special Representative of the Secretary-General on human rights defenders: Applying the Declaration on human rights defenders. Meeting the standards of the right to association, UN Doc. A/59/401 (1 October 2004), para [47], available at www.undocs.org/en/a/59/401; see also Ben Emmerson (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Impact of counter-terrorism measures on civil society, UN Doc. A/70/371 (18 September 2015), para [12]; Maina Kiai (Special Rapporteur on freedom of peaceful assembly and of association), Best practices related to the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/20/27 (21 May 2012), para [12]-[21], available at: https://tinyurl.com/25zn4sb6; and Margaret Sekaggya (Special Rapporteur on Human Rights Defenders), Report of UN Special Rapporteur on the situation of human rights defenders: Human rights defenders and the right to freedom of association: interventions and positions of the Special Rapporteur”, UN Doc A/64/226 (4 August 2009), para [7]-[30].
[15] G.A. Res. 53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (9 December 1998), Articles 5 and 6, available at: undocs.org/en/A/RES/53/144 (accessed 18 April 2022).
[16] Frank La Rue (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/67/357 (7 September 2012), para [36].
[17] Council of Europe, European Commission for Democracy through Law (Venice Commission), Joint Guidelines on Freedom of Association (2014), p.15, available at: https://tinyurl.com/5cbfp8ft.
[18] Article 2(1) of the International Covenant on Civil and Political Rights, Dec 16, 1966, 999 U.N.T.S. 171 (entry into force: 23 March 1976); UN Human Rights Committee (HRC), CCPR General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, available at: https://www.refworld.org/docid/478b26ae2.html; see legal decisions in López Burgos v. Uruguay, UN Doc. A/36/40, 6 June 1979, para. 12.3; International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No.131 paras. [109]-[111]. See also useful discussion in John Cerone, “The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US Activities in Iraq”, ASIL, Vol. 9(32), available at https://tinyurl.com/65m57hrk [accessed 15 June 2022].Also clarifying as to the scope of jurisdiction, although only tangentially applicable, is Principle 9 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, Jan 2013, available at https://tinyurl.com/ys82wm6u [accessed 15 June 2022].
[19] Michel Forst (Special Rapporteur on Human Rights Defenders), Report of the Special Rapporteur on the situation of human rights defenders: Impunity for human rights violations committed against human rights defenders, UN Doc. A/74/159 (15 July 2019).
[20] Israel has been found to be engaging in Apartheid by Michael Lynk (Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967), Report of the Special Rapporteur on the situation of Human Rights in the Palestinian territories occupied since 1967: Israel has imposed upon Palestine an apartheid reality in a post-apartheid world, UN Doc. A/HRC/49/87 (25 March 2022), available at https://tinyurl.com/mwve2xh4; Amnesty International, Israel’s Apartheid Against Palestinians: Cruel system of domination and crime against humanity, 1 February 2022, available at https://tinyurl.com/4z6ee2jx; and Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, 27 April 2021, available at https://tinyurl.com/yc2529rb.
[21] UN Convention on the Suppression and Punishment of the Crime of Apartheid, July 18, 1976, 1015 U.N.T.S. 243, art. 2(c),(f).
[22] Common Article 1 to International Covenant on Civil and Political Rights, Dec 16, 1966, 999 U.N.T.S. 171 (entry into force: 23 March 1976), and International Covenant on Economic, Social and Cultural Rights, Dec 16, 1966, 993 U.N.T.S. 3 (entry into force: 3 January 1976).
[23] As this article is focussed not on Israel violations but that of third states, full exploration of this issue is outside the scope of this paper. That said, with respect to Israel’s obligations owed, it regularly justifies its departure from these obligations on the state of emergency exemptions in international law. That it is relying on British Mandate laws from 1945, and a so-called state of continuous emergency that was first declared on 19 May 1948, has not inhibited Israel from building a whole legal apparatus underpinned by these two acts. This situation persists in clear violation of any reasonable interpretation of Article 4. For a useful discussion of the issue see: John Reynolds, “’Intent to regularise’: The Israeli Supreme Court and the Normalisation of Emergency”, Adalah’s Newsletter, Vol. 104, May 2013, available at https://tinyurl.com/3be5mc5f [accessed 15 June 2022]. See also UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, available at: https://www.refworld.org/docid/453883fd1f.html; American Association of the International Commission of Jurists, Siracusa Principles on the Derogation Provisions in the International Covenant on Civil and Political Rights, April 1985, available at: https://tinyurl.com/2p8tenms; and European Court of Human Rights, Factsheet: Derogation in Time of Emergency, Feb 2022, available at: https://tinyurl.com/3mvkjn69.
[24] Fionnuala Ní Aoláin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Impact of measures to address terrorism and violent extremism on civic space and the rights of civil society actors and human rights defenders, UN Doc. A/HRC/40/52 (1 March 2019).
[25] See full list available at Special Rapporteur on counter-terrorism and human rights, “International Standards on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism”, website, accessed 25 April 2022, available at https://tinyurl.com/46hp7wnw.
[26] Ben Emmerson (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Impact of counter-terrorism measures on civil society, UN Doc. A/70/371 (18 September 2015), para [14]; Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism: Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51 (22 December 2010), para. [26]; and Margaret Sekaggya (Special Rapporteur on Human Rights Defenders), Report of the Special Rapporteur on the situation of human rights defenders: The security and protection of human rights defenders, UN Doc. A/HRC/13/22 (30 December 2009), para [32].
[27] Seven UN Special Rapporteurs and two UN Working Groups condemned Israel’s most recent violations: see “UN experts condemn Israel’s designation of Palestinian human rights defenders as terrorist organisations”, Press Release, 25 October 2021, available at: https://www.ohchr.org/en/press-releases/2021/10/un-experts-condemn-israels-designation-palestinian-human-rights-defenders. See
[28] The UN has repeatedly adopted this position with respect to the actions of Palestinian armed groups and organisations, see for example the UN Human Rights Council, Report of the detailed findings of the Commission of Inquiry on the 2014 Gaza Conflict, UN Doc. A/HRC/29/CRP.4 (24 June 2015), para [23]-[37] and [93]-[103] and UN Human Rights Council, Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/CRP.2 (18 March 2019).
[29] Contrary to the principles enshrined in the G.A. Res. 1514 (XV), Declaration on the granting of independence to colonial countries and peoples (14 December 1960) which are widely accepted as having crystallized into customary international law.
[30] These include G.A. Res. 2787 (XXIV), (6 December 1971); G.A. Res. 3246 (XXIX), (29 November 1974); G.A. Res. 33/24 (29 November 1978); G.A. Res. 34/44 (23 November 1979); G.A. Res. 35/35 (14 November 1980); G.A. Res. 36/9 (28 October 1981); G.A. Res. 37/43 (3 December 1982), among others, see for example: https://tinyurl.com/5xjktbj4.
[31] See discussion at ICRC, “Challenges for IHL - terrorism: overview”, website, 29 October 2010, available at https://www.icrc.org/en/document/challenges-ihl-terrorism (accessed 25 April 2022).
[32] Michel Forst (Special Rapporteur on human rights defenders), Report of the Special Rapporteur on the situation of human rights defenders: Impunity for human rights violations committed against human rights defenders, UN Doc. A/74/159 (15 July 2019), para. [29].
[33] Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Freedom of association and peaceful assembly and counter-terrorism, UN Doc. A/61/267 (16 August 2006), para [24]-[25], available at https://undocs.org/en/a/61/267.
[34] Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Freedom of association and peaceful assembly and counter-terrorism, UN Doc. A/61/267 (16 August 2006), para [10], available at https://undocs.org/en/a/61/267.
[35] Such a position is also at odds with the broader obligations under counter-terrorism law recognising the importance of civil society to democracy which have subsequently been adopted by the UN through the Security Council’s adoption of the UN Global Counter Terrorism Strategy: see S.C. Res. 2178 (2014), which states “Recognizing also that terrorism will not be defeated by military force, law enforcement measures and intelligence operations alone, and underlining the need to address the conditions conducive to the spread of terrorism, as outlined in pillar I of the United Nations Global Counter Terrorism Strategy (General Assembly resolution 60/288)”, discussed in Ben Emmerson (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Impact of counter-terrorism measures on civil society, UN Doc. A/70/371 (18 September 2015), para [14].
[36] For further legal discussion see UN Human Rights Committee (HRC), CCPR General Comment No. 5: Article 4 (Derogations), 31 July 1981, available at: https://www.refworld.org/docid/453883ff1b.html; Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Freedom of association and peaceful assembly and counter-terrorism, UN Doc. A/61/267 (16 August 2006), para [12]-[14], available at https://undocs.org/en/a/61/267; and Michel Forst (Special Rapporteur on human rights defenders), Report of the Special Rapporteur on the situation of human rights defenders: Human rights defenders operating in conflict and post-conflict situations, UN Doc. A/HRC/43/51 (30 December 2019), para [21]-[23].
[37] Maina Kiai (Special Rapporteur on freedom of peaceful assembly and of association), Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association: Ability of associations to access financial resources: a vital part of the right to freedom of association, UN Doc. A/HRC/23/39 (24 April 2013), para [14].
[38] Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Freedom of association and peaceful assembly and counter-terrorism, UN Doc. A/61/267 (16 August 2006), para [18], available at https://undocs.org/en/a/61/267.
[39] Frank La Rue (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/67/357 (7 September 2012).
[40] Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, UN Doc. A/HRC/22/17/Add.4 (11 January 2013), para [9]-[11].
[41] Frank La Rue (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/67/357 (7 September 2012), para [44]; Article 19: Global Campaign for Free Expression, The Camden Principles on Freedom of Expression and Equality (April 2009), Principle 12.1, available at: https://tinyurl.com/wysar5xe.
[42] Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, UN Doc. A/HRC/22/17/Add.4, annex (11 January 2013), para [29].
[43] Ibid, para [29(a)].
[44] Ibid, para [29(b)].
[45] See detailed explanation of Israel’s violations in BADIL, Written Submission to the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association to Inform Thematic Report on Trends, Developments, and Challenges to the Ability of Civil Society Organizations to Access Resources, Including Foreign Funding, to be Presented to the HRC at its 50th Session, 18 February 2022, available at written-submission-badil-sr-feb2022-1645613684.pdf.
[46] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (November 2001), available at: https://www.refworld.org/docid/3ddb8f804.html (accessed 25 April 2022).
[47] Ibid, art. 16.