Committee on the Covenant on Economic, Social and Cultural Rights

(CESCR)
Session: November-December 2000
During the last two weeks in November, the UN Committee on the Covenant on Economic, Social and Cultural Rights, to which Israel is a signatory met in Geneva to consider the reports of the countries scheduled for review regarding implementation of the Covenant. Numerous local and international NGOs, including BADIL, submitted briefs to the Committee relative to the social, economic and cultural rights of the Palestinian people. Israel issued a note verbale on 3 November stating that it's second periodic report, including issues referred to and information requested by the Committee in its Concluding Observations date 4 December 1998, would be ready for submission no later than March 2001. The report was scheduled for submission to the November-December session, including material on the occupied territories not included in the first report. While Israel did not BADIL's report to the Committtee focused exclusively on the rights of Palestinian refugees, 1967 displaced Palestinians and internally displaced Palestinians. The submission is part of BADIL's new legal project related to refugee rights.

For more see In Our Own Affairs (backcover). submit the required report as scheduled, the Committee noted a list of concerns to be addressed in March 2001 These included:
interference by Israeli military and security forces with medical aid and personnel in the occupied territories and inside Israel; closure of schools and attacks on children; destruction of Palestinian agricultural land; unemployment due to the Israeli military closure; house demolition and land confiscation, and; restrictions on freedom of movement.

BADIL Submission to the CESCR: Executive Summary, 13 November 2000 As noted by the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the"Committee") in Paragraphs 13, 11 and 25 of its 1998 "Concluding Observations," Israel continues to fall far short of complying with its treaty obligations under the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the "ICESCR").

As the Committee's 1998 Concluding Observations noted with clarity, Israel continues to practice widespread institutionalized, state-sanctioned and state-enforced discrimination based on racial, ethnic, religious or political criteria which negatively affects millions of Palestinians (i.e.,Palestinians resident within Israel, including the "internally displaced," as well as externally displaced Palestinians currently in forcibly maintained exile outside Israel, whether resident in the occupied territories or in exile even beyond those areas) with regard to fundamental official Israeli state policies and laws governing citizenship (and in the occupied territories,residency) rights and private property ownership rights.

Such nstitutionalized, statesanctioned discrimination based on racial, ethnic, religious or political criteria is patently illegal under customary international law and is, accordingly, expressly prohibited by the ICESCR.Israel, as a party to the ICESCR, is thereby fully obligated to bring its laws and policies into compliance with its treaty obligations thereunder.

It will be rea dily apparent that the right to hold citizenship in the state of one's origin and the right to own private property free from illegal governmental interference constitute what may be conceived of as "core" foundational rights which the ICESCR categorically prohibits governments from interfering with on racial, ethnic, religious or political discriminatory grounds. These rights may be termed core, foundational rights because their realization is absolutely necessary in order to make possible, in turn, the enjoyment of all the other rights enumerated in the ICESCR (which rights might conceptually be referred to as "second-level" rights). Similarly, the right of peoples to selfdetermination is another such core, foundational right, expressly enumerated in the ICESCR.

Since none of the second-level rights enumerated in the ICESCR can be enjoyed by Palestinians - and especially by displaced Palestinians (otherwise known as Palestinian "refugees") - unless their core, foundational rights of citizenship and private property ownership are fully respected by the state of Israel, the Committee is urged to censure, in the clearest possible terms the massive scale and grave severity of Israel's patently illegal violation of the core, foundational rights of citizenship, private property ownership and self-determination of the Palestinian people, and in particular the displaced Palestinians (who represent the group whose rights are being violated on the most massive scale).

While the Committee has already made some observations leading in this direction in its 1998 Concluding Observations, it is possible thatthe Committee has not yet taken note of the massive scope or the fundamental gravity of the illegality of Israel's violations of the individuallyheld citizenship rights and private property ownership rights of individual Palestinians - and in particular the displaced Palestinians - as well as the collective self-determination right of the Palestinian people.

We therefore draw the Committee's attention to our quantification of the scope of Israel's violation of the individually-held citizenship and private property rights of displaced Palestinians, as well as our survey of the international law principles upon which these two respective rights are grounded, in order to highlight the urgency of the Committee's clearest possible formulation of the fundamental illegality, under the ICESCR, of Israel's actions with respect to these two rights as well as the need for clear and unambiguous recommendations for immediate implementation of appropriate legal remedies designed to protect fully these two core, foundational sets of individually-held rights from any further violation by Israel, which thus far has continued unabated for 52 years.

With regard to the occupied territories(including East Jerusalem), we also review the international law principles governing military occupation, which reveal that a military occupier can never attain de jure sovereignty over occupied territory. Consequently, the de jure sovereignty over the occupied territories which vested in the Palestinian people with the 1919 League of Nations Covenant - which is the fundamental legal basis of the Palestinian people's collectively-held right of self-determination in those areas - can never be overridden by the lesser order of de facto sovereignty currently exercised there by the Israeli military occupation forces.

Accordingly, Israel's entire military presence in the occupied territories must be completely withdrawn, and all actions purported to have been based upon the authority of the military occupation - for example including Israel's massive violation of the residency and private property rights of millions of Palestinians in the occupied territories, and including, in particular the roughly one million1967 displaced Palestinians (who constitute the most vulnerable group) - must be overturned, to restore the situation to the status quo ante. We urge the Committee to clarify the fundamental illegality, under the ICESCR, of Israel's military occupation presence in the occupied territories (including East Jerusalem), which conclusively violates the Palestinians' prior and legally superior collectively-held right to self-determination in that area, which right is enshrined in the ICESCR.

We similarly urge the Committee to censure in the clearest possible terms Israel's concomitant violations, under the ICESCR, of the core, foundational individually-held rights of residency and private property ownership of Palestinians in the occupied territories, and inparticular of the 1967 displaced Palestinians, which constitute the must vulnerable group. These violations have flowed from Israel's massscale abuse of its de facto sovereign authority as a military occupier in these areas during the past thirty-three years, which, as already noted, has illegally infringed upon the prior and legally superior vested de jure sovereignty rights of the Palestinian people, upon which their ICESCRprotected collectively-held right of selfdetermination is irrevocably grounded.

BADIL therefore requests that the Committee build upon its 1998 Concluding Observations in two ways. First, we urge the Committee to renew its condemnation of Israel's massive violations of three core foundational rights of the Palestinian people - and the displaced Palestinians in particular, who represent the most vulnerable groups - which are enumerated in and protected by the ICESCR, as noted above. Second, we urge the Committee to call clearly for the immediate implementation of three specific legal remedies, which are required under international law and which have alreadybeen clearly articulated by the United Nations.

The three remedies include implementation of two individually-held rights - the "right of return" and the "right of restitution" - which rights are held independently by each Palestinian whose citizenship or property rights have been illegally violated by Israel. The third remedy - implementation of the Palestinian people's collectively-held "right of self-determination" - is held by the Palestinian people as a group. The individually-held rights complement the collectively-held right, and neither cancels the other out. Because these three "core" rights identified are specifically protected by the ICESCR, in particular, and are protected by customary international law in general, their immediate and complete remediation by Israel should be called for by all UN bodies - including the Committee - in the clearest possible terms.

Concluding Observations of the CESCR 1998 (excerpts)
11. The Committee notes with grave concern that the Status Law of 1952 authorizes the World Zionist Organization/ Jewish Agency and its subsidiaries including the Jewish National Fund to control most of the land in Israel, since these institutions are chartered to benefit Jews exclusively. Despite the fact that the institutions are chartered under private law, the State of Israel nevertheless has a decisive influence on their policies and thus remains responsible for their activities.

A State Party cannot divest itself of its bligations under the Covenant by privatizing governmental functions. The Committee takes the view that large-scale and systematic confiscation of Palestinian land and property by the State and the transfer of that property to these agencies, constitute an institutionalized form of discrimination because these agencies by definition would deny the use of these properties by non-Jews. Thus, these practices constitute a breach of Israel's obligations under the Covenant.

13. The Committee notes with concern that the Law of Return, which permits any Jew from anywhere in the World to immigrate and thereby virtually automatically enjoy residence and obtain citizenship in Israel, discriminates against Palestinians in the diaspora upon whom the Government of Israel hasimposed restrictive requirements that make it almost impossible to return to their land of birth. 25. The Committee expresses its concern over the plight of an estimated 200,000 uprooted "present absentees" who are Palestinian Arab citizens of Israel, most of whom were forced to leave their villagesduring the 1948 war on the understanding that they would be all owed to return after the war by the Government of Israel. Although a few have been given back their property, the vast majority continue to be displaced and dispossessed within the State because their lands were confiscated and not returned to them.

35. The Committee urges the State Party to review the status of its relationship with the World Zionist Organization/ Jewish Agency and its subsidiaries including the Jewish National Fund with a view to remedy problems identified in para 11 above. 36. In order to ensure the respect for article 1(2) of the Covenant and to ensure the equality of treatment and non-discrimination, the Committee strongly recommends a review of re-entry policies for Palestinians who wish to re-establish domicile in their homeland, with a view to bring such policies to a level comparable to the Law of Return as applied to Jews.

In particular, BADIL makes the followingspecific Recommendations to the Committee:
The "Right of Restitution"
1. The Committee should conclude that Israel's land confiscation laws as implemented - i.e., as selectively applied against Palestinian landowners only to deprive them of their land without beig equally applied to deprive similarly situated Jewish landowners of their land, in addition to the complete failure to provide due process guarantees for the Palestinian landowners or fair market value rates of compensation for property so confiscated - inside the 1949 "Green Line," and in particular the Absentees' Property laws, are illegal under international law because they are framed and implemented in a way that discriminates on the basis of racial, ethnic, religious or political criteria (to work exclusively in favor of Jews and exclusively against the interests of Palestinian Arabs), which prima facie violates the ICESCR.

2. According to the foregoing principle, the Committee should conclude that all of Israel's illegal land confiscation laws based on racial,ethnic, religious or political criteria must be repealed or amended (to allow full restitution, as required by international law, of all private property of the 1948 displaced Palestinians which was illegally confiscated from them).

3. Regarding the preceding recommendation, the Committee should specifically recommend that the official land records and archives of both the government of Israel and the United Nations Conciliation Commission for Palestine (which was empowered in G.A. Resolution 194 to record, tabulate, monitor and preserve the private property rights of the 1948 group of Palestinians) (hereinafter referred to as the "UNCCP") should be opened up to the public - and in particular to potential Palestinian claimants seeking to reclaim their property - for inspection and duplication. Israel's Military Orders Applied in the 1967 Occupied Territories Israel's Temporary Status as Belligerent Occupant Must Immediately Come to an End

1. With regard to the 1967 occupied territories, the Committee should conclude that as Israel can never obtain de jure sovereignty in the 1967 occupied territories under international law, it must accordingly relinquish de facto sovereignty(i.e., its military occupation) there to the group ofpersons with the priority legal right to that area under international law, i.e., the Palestinian people, who hol d the prior legal right by virtue of their collective right of self-determination in the land covenanted to them in the League of Nations Covenant, which right of selfdetermination is enshrined in Articles 1(1), 1(2) and 1(3) of the ICESCR. Accordingly, the Committee should conclude that Israel's military
presence in the occupied territories violates international law, as codified in Articles 1(1), 1(2) and 1(3) of the ICESCR.
Residency 1. According to the foregoing, the Committee should conclude that with cessation of the military occupation and the annulling of Israel's military orders (including those regulating residency), the 1967 group of externally displaced Palestinians would rightfully be allowed to return to their land of birth (and Israel's illegal violation of their "right to return" would cease).

Land Confiscation 1. Similarly, the Committee should conclude that with cessation of the military occupation and the annulling of Israel's military orders (including those under which land and roperty was illegally confiscated), any and all property illegally confiscated under military orders in the occupied territories should be fully restituted and restored to the rightful, original Palestinian owners (and Israel's violation of their "right to own property free from illegal governmental interference" would cease).

The "Right of Restitution"
1. The Committee should conclude that Israel'sland confiscation laws as implemented - i.e., as selectively applied against Palestinian landowners only to deprive them of their land without being equally applied to deprive similarly situated Jewish landowners of their land, in addition to the complete failure to provide due process guarantees for the Palestinian landowners or fair market value rates of compensation for property so confiscated - inside the 1949 "Green Line," and in particular the Absentees' Property laws, are illegal under international law because they are framed and implemented in a way that discriminates on the basis of racial, ethnic, religious or political criteria (to work exclusively in favor of Jews and exclusively against the interests of Palestinian Arabs), which prima facie violates the ICESCR.

2. According to the foregoing principle, the Committee should conclude that all of Israel's illegal land confiscation laws based on racial, ethnic, religious or political criteria must be repealed or amended (to allow full restitution, as required by international law, of all private property of the 1948 displaced Palestinians which was illegally confiscated from them).

Israel's Military Orders Applied in the1967 Occupied Territories Israel's Temporary Status as Belligerent Occupant Must Immediately Come to an End 1. With regard to the 1967 occupied territories, the Committee should conclude that as Israel can never obtain de jure sovereignty in the 1967 occupied territories under international law, it must accordingly relinquish de facto sovereignty (i.e., its military occupation) there to the group of Right of Return Opinion Poll - United States Nearly three-fourths of Americans believe that Palestinian refugees should be able to return to their homes in Israel according to recent opinion poll.

74% said they believe that Palestinians should be allowed to return to their old homes if they choose; 9.2% said they thought it would be better for the Palestinians to stay where they have relocated; 16.7% are unsure. (National telephone survey of 890 adults by Zogby America. Margin of error of +/- 3.4%)