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1. On 19 October 2000, the Commission on Human Rights adopted resolution S-5/1 establishing a commission of inquiry to investigate violations of human rights and humanitarian law in the occupied Palestinian territories after 28 September 2000 and to provide the Commission on Human Rights with its conclusions and recommendations (see annex I). In pursuance of this resolution, a human rights inquiry commission was established on 2 January 2001, comprising Professor John Dugard, (South Africa), Dr. Kamal Hossain (Bangladesh) and Professor Richard Falk (United States of America). Initially Professor Dugard and Dr. Hossain acted as Co-Chairpersons but, during the course of the visit to the occupied Palestinian territories (OPT), Professor Dugard was appointed as Chairman.
2. The Human Rights Inquiry Commission (“the Commission”) held its first meeting in Geneva from 14 to 16 January 2001 to discuss its mandate, methodology and programme of action. It then visited the occupied Palestinian territories (OPT) and Israel from 10 to 18 February 2001. The full programme of the Commission appears in annex II.
3. On the evening of its arrival in Gaza on 10 February 2001, the Commission met with the Palestinian Authority President, Yasser Arafat, who gave the Commission an account of the situation from the perspective of the Palestinian Authority. From the programme contained in annex II, it will be seen that, while in Gaza, the Commission held meetings and discussions with members of the Palestinian Authority, non-governmental (NGOs), the Palestinian Red Crescent, the International Committee of the Red Cross (ICRC), international agencies (notably the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations Special Coordinator in the Occupied Territories (UNSCO) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)), journalists, lawyers and members of the Palestinian Legislative Council. It also interviewed several young men who had been seriously wounded during demonstrations by gunfire from the Israeli Defence Force (IDF) and visited a hospital in Khan Yunis where it saw persons hospitalized as a result of gas inhalation. En route to Khan Yunis, the Commission visited the Qarara area, near the Kusufim road leading to settlements, where it saw agricultural land that had been bulldozed and houses that had been demolished by the IDF and it spoke with the occupants of these houses, who are now living in tents. At Khan Yunis the Commission visited the Tufar checkpoint adjacent to the Neve Dekalim Jewish settlement. While the Commission members were speaking to journalists at this point, two shots were fired from a nearby building at the settlement. This evoked a heavy response from the IDF base attached to the settlement, resulting in three casualties, two of which were serious. Thereafter, the Commission interviewed persons who had suffered as a result of gunfire or the destruction of property.
4. The Commission spent Wednesday, 14 February interviewing Israeli NGOs and Israeli interlocutors who provided the Commission with a broader understanding of the context of the conflict and the legal position adopted by the Government of Israel. On 15 and 16 February the Commission visited Ramallah, where it met with members of the Palestinian Authority, the Palestinian Legislative Council, the Palestinian Peace Negotiation Affairs Department, and Palestinian NGOs, lawyers and academicians. On the morning of 16 February, before leaving for Ramallah, the Commission met with the representatives of member States of the European Union, whose views confirmed many of the opinions expressed by other interlocutors interviewed by the Commission. Later in the morning of 16 February the Commission spoke with Christian and Muslim leaders (including those responsible for the management of the Al Aqsa mosque) and met with Mr. Faisal El-Husseini at Orient House. On Saturday, 17 February the Commission travelled to Hebron, where it met with the Temporary International Presence in Hebron (TIPH) and the Mayor of Hebron. Owing to the tense security situation arising from the funeral of a person killed by IDF gunfire on the previous night, it was unable to visit “H2”, the area of Hebron under Israeli military control. After leaving Hebron, it visited the Aida Refugee Camp near Bethlehem and inspected an UNRWA school and houses which had been heavily damaged by IDF shelling. Thereafter, it met with a wide range of interlocutors and journalists in Jerusalem.
5. While in Jerusalem, the Commission held evening meetings with widely respected Israeli academic and intellectual figures, who were able to inform the Commission about the legal context of the conflict and the Jewish settlements in the West Bank and Gaza and provide Israeli perspectives of the intifada. On the afternoon of 16 February, the Commission visited the East Jerusalem neighbourhood of Gilo, which had come under gunfire from the Palestinian town of Beit Jala. On the last day of its visit, the Commission met with an Israeli political scientist and a former Israeli IDF General.
6. At the request of the Commission, the staff of the United Nations Secretariat accompanying the Commission conducted a number of confidential interviews with victims in Gaza, Ramallah, Hebron and Jerusalem. The texts of these interviews were shared with members of the Commission.
7. The Government of Israel made it clear from the outset that it would not cooperate with the Commission. Two letters were addressed to the Government of Israel before the departure of the Commission for Israel requesting meetings with the Government; a final letter containing a similar request was sent while the Commission was visiting the area. Despite these efforts, the Government of Israel consistently maintained its policy of non-cooperation with the Commission. The Commission is, however, pleased to report that the Government did not in any way obstruct the work of the Commission and indeed facilitated its visit to Israel and the occupied territories by granting Dr. Hossain an entry visa. (The other two Commissioners did not require visas for their visit.)
8. Jewish settlements in the West Bank and Gaza feature prominently in this report. For this reason, the Commission approached the Council of Jewish Settlements of Judea, Samaria and Gaza (Yesha) in order to obtain their views at first hand. After consideration and consultation with the Government of Israel, the Council decided not to cooperate with the Commission.
9. The Commission made a concerted effort to obtain information and opinions about human rights violations and violations of international humanitarian law from both the Palestinian and the Israeli perspectives. The Commission regrets the refusal of the Government of Israel to cooperate with it. This meant that it could not obtain specific responses to allegations of human rights violations and violations of international humanitarian law or benefit from interaction on the concerns of the Commission. The Commission believes, however, that it was adequately informed as to the official Israeli position through its study of the Israeli submissions to the Mitchell Commission and the Government’s response to the report of the High Commissioner for Human Rights and by speaking to informed Israeli interlocutors. It also had the benefit of a discussion with former General Shlomo Gazit, the Chief Military Coordinator of West Bank and Gaza Policy in the period 1967-1974 and a keen student of military affairs and security doctrine.
10. The Commission has studied numerous reports on matters affecting human rights and humanitarian law in the occupied Palestinian territories since the start of the second intifada on 28 September 2000. During its visit to Israel and the occupied territories, it heard a considerable amount of evidence on such matters. In addition, it experienced violence at first hand, spoke to victims and inspected destroyed properties and the sites of some of the worst confrontations between demonstrators and the IDF. The impressions and interpolations of the Commission and the testimony received by the Commission confirm the views expressed by the most respected and reliable NGOs in the region. The Commission has, therefore, relied to varying degrees on the findings of respected NGOs where they were supported by reliable eyewitness accounts and where they coincide with other evidence received by the Commission. In other words, the Commission is guided in its report by the best available evidence. Most of this evidence is not disputed by either the Palestinian Authority (PA) or the Government of Israel, although they tend to place an interpretation different from that of the Commission upon it.
11. In its report the Commission refers to facts and figures that show the magnitude of the violations of human rights and international humanitarian law in the OPT. These facts and figures have been taken from a wide variety of sources. Every attempt has been made to confirm their accuracy by reference to reports on the same incidents from other sources. Where there is any doubt about the accuracy of a particular factual situation, no statistics are given about it.
12. The present report will show that the IDF, assisted by settlers on occasion, has been responsible for most of the human rights violations and violations of international humanitarian law in the OPT. This is not to overlook the fact that human rights violations have been committed by Palestinians, either under the authority of the PA or by individual Palestinians acting seemingly without authority. Where necessary, the present report draws attention to these violations.
13. The mandate of the Commission is to report on violations of human rights and international humanitarian law in the OPT. Both the Government of Israel and the PA allege that the other party has violated the Oslo Accords in fundamental respects during the present intifada. The Commission makes no attempt to pronounce on these allegations, except where they impinge upon matters falling within its mandate.
14. In the course of its investigation, the Commission met leaders of civil society in both Israel and the OPT. We were impressed with their understanding and vision. Leaders of this kind offer the best prospect for the future of Palestine and the normalization of relations between Jews and Arabs.
15. The Commission hopes that its report will serve to advance the peace process. The attitude of the Commission is that, while there can be no human rights without peace, a durable peace is not likely to be attained if it is not founded on respect for human rights and the rule of law.
III. CLARIFYING THE CONTEXT: ILLUSION AND REALITY
16. It was evident in all phases of our inquiry into the patterns of violations of human rights and international humanitarian law during the second intifada that an appreciation of the behaviour of the parties involved depended on having an understanding of the surrounding context. Each side has felt justified in taking the action that has accompanied recent moves, although each side gives its own self-serving interpretation of its legal, moral and political character. It is important to comprehend these differences in the process of seeking an objective assessment of the various allegations of violative conduct. It is just as important to avoid equating adversary positions as equally persuasive. In the setting of the Israeli-Palestinian relationship it is of pervasive significance that the Palestinian people are struggling to realize their right of self-determination, which by virtue of international law and morality provides the foundation for the exercise of other rights. Of comparable significance is the appreciation of the extent to which Israel’s continued occupation of Palestinian territories has remained the most formidable obstacle to Palestinian self-determination.
17. The Commission came away from this inquiry with two overriding assessments that are at once discouraging and illuminating.
18. The first involves perceptions, and focuses on the extent to which the two sides perceive the central reality of their respective positions from diametrically opposed constructions of the meaning of recent events. In essence, the Government of Israel and most Israelis conceive of the breakdown of the Oslo process as creating for them a severe and novel security crisis. Most Israelis view the second intifada as an indication that Palestinians are unwilling to resolve their conflict by peaceful means, having rejected what is regarded as a generous offer by the Government of Israel at the Camp David II and Taba stages of the Final Status negotiations. The nature of this crisis is such that, according to this dominant Israeli perspective, the encounter with the Palestinians has moved from a relationship between an occupying Power and an occupied people to one between conflicting parties in a state of belligerency or war, implying a virtual absence of legal and moral constraints, at least on the Israeli side, provided only that a self-serving argument of military necessity is set forth.
19. In the starkest possible contrast, the Palestinian Authority and most Palestinians perceive the current phase of their relationship with Israel as brought about by a combination of the distortions associated with the implementation of the Oslo principles, the failure to implement a series of authoritative United Nations resolutions, most particularly Security Council resolutions 242 (1968) and 338 (1973), and grave breaches by Israel of the Fourth Geneva Convention. These aspects of the situation are further seen as responsible for the full harshness of Israeli occupation as it affects adversely the daily lives of the Palestinians. Such circumstances are regarded as profoundly aggravated by the continued expansion of Israeli settlements throughout the period of the Oslo process and by the IDF role in their protection. The combination of these elements is regarded by most Palestinians as the proximate cause of the escalating spiral of violence set off by the provocative events at Harem al-Sharif/Temple Mount on 28 September 2000. In this regard, the second intifada is viewed as a spontaneous series of moderate and proportional responses to an occupation that has been maintained and perpetuated in defiance of the authority of the United Nations since it was established in 1967. From this perspective, the Palestinians contend that they continue to seek a negotiated end to the conflict to attain a peaceful settlement that is fair to both sides and upholds the security of both peoples on the basis of mutuality.
20. Our second closely related conclusion is associated with the somewhat disguised link between the modality of Israeli occupation as a result of changes brought about by the Oslo process and the subsequent intifada, with its escalating spiral of violence. It is of critical importance to appreciate the interaction between the redeployment of the IDF since 1994 and the implementation of the Oslo Accords. In effect, the IDF withdrew by stages from most of the areas on the West Bank and Gaza inhabited by the bulk of the Palestinian population, and yet sustained, and even intensified, its control over the borders between the Palestinian territories and Israel and among the various districts internal to the OPT. Even more significantly, owing to the retention of the settlements situated throughout the Palestinian territories, as the accompanying map makes clear (annex IV), the West Bank and Gaza were divided into “A”, “B”, and “C” areas, with the Palestinian Authority exercising full administrative control over A, while Israel exercises security control over B and retains exclusive control over C. In effect, a series of internal boundaries were established by agreements implementing the Oslo Accords, so as to enable Israel to provide protection to the settlements while withdrawing from areas densely populated by Palestinians. The effect of such a redistricting of the Palestinian territories was to produce a situation of extreme fragmentation, making travel very burdensome for Palestinians who went, for work or otherwise, from one part of the territories to another: checkpoints were maintained where detailed searches were carried out that resulted in long waits and frequent humiliation, greatly burdening Palestinian rights of movement even under normal circumstances. In the course of the second intifada, this already difficult situation has been severely aggravated by frequent closures and blockades that have prevented the movement of goods and persons across both internal and external borders. Most Palestinians described the situation of recent months as living under “a state of siege”.
21. Such a pattern of control and security can only be understood in relation to the settlements and their need for safe access to and from Israel. The main IDF function in the occupied Palestinian territories is to guard the settlements and the access and bypass roads. The relationship is such that the settlers are given unconditional priority whenever their presence impinges upon that of the Palestinian indigenous population. For instance, all Palestinian traffic is stopped while a single settler vehicle passes on an access road, causing long delays and much resentment. While travelling, particularly in Gaza, the Commission had its own direct experience of this situation. When a violent incident occurs, Israeli closures further inhibit travel, often preventing or greatly detaining even emergency traffic, such as ambulances. The Commission verified several accounts of deaths due to an inability of Palestinians to receive timely medical attention. Israel has invested heavily in an elaborate system of bypass roads in the West Bank designed to provide most settlements and the IDF with the means to travel to and from Israel, and between settlements, without passing through Palestinian-controlled areas. Palestinians view these roads with alarm, both because of their substantial and symbolic encroachment upon the heart of a future Palestinian State and, more so, because the magnitude of the investment and effort involved in such a development seems to impart an Israeli view that most of the settlements on the West Bank will never be removed. This situation contrasts with Gaza, where access roads cut through Palestinian territory and have not been specially constructed. In this regard, the settlement structure in Gaza seems removable by negotiations on final status in a manner that at present does not appear likely in relation to the West Bank.
22. Part of the perceptual gap is associated with the effects and nature of the violence. Israelis appear to connect most of their casualties with the stone-throwing demonstrations, interspersed at times with Palestinian gunfire. The Palestinians associate casualties on their side mainly with what they view as Israeli/IDF overreaction to these demonstrations. It was the clear judgement of the Commission that Palestinian casualties were indeed mainly associated with these direct encounters, but that, to the best of our knowledge, the IDF, operating behind fortifications with superior weaponry, endured not a single serious casualty as a result of Palestinian demonstrations and, further, their soldiers seemed to be in no life-threatening danger during the course of these events. It was the definite view of the Commission that the majority of Israeli casualties resulted from incidents on settlement roads and at relatively isolated checkpoints at the interface between A, B, and C areas, that is, as a consequence of the settlements, and irritations resulting indirectly therefrom. In this regard, account must be taken of settler violence against Palestinian civilians in areas adjoining settlements, and of IDF complicity in such violence. A pervasive feature of the tensions associated with the second intifada is the clear affinity between the IDF and Jewish settlement communities, and the equally evident hostility between these communities and the surrounding Palestinian population.
23. The language associated with the second intifada is also relevant to an assessment of human rights violations and violations of international humanitarian law. Both sides tend to view the violence of the other side as comprising “terrorism”. The Israelis view attacks by Palestinians, especially beyond “the Green Line” (pre-1967 Israel), as terrorism even if directed against official targets such as IDF soldiers or government officials. Palestinians regard the IDF tactics involving shooting unarmed civilian demonstrators (especially children) or relying on tanks and helicopters against demonstrators, in retaliation for shots fired from refugee camps, and assassinations of targeted individuals as State terrorism. The legal status of these patterns of violence is difficult to establish authoritatively. Part of the current complexity relates to the Israeli contention that a condition of armed conflict has replaced that of belligerent occupancy as a result of IDF withdrawals from A zones, and the transfer of governing authority in those areas to the PA. Another part of the complexity arises from the Palestinians’ contention that they enjoy a right of resistance to an illegal occupation.
24. There is another fundamental discrepancy of perception. Israel believes that its security measures, including border and road closures, represent reasonable, even restrained, measures of response to Palestinian unrest and opposition. To the extent that Israel relies on the superiority of its weaponry or inflicts most of the casualties, such behaviour is rationalized as necessary to demoralize a numerically superior enemy, nipping its resistance in the bud. Such lines of explanation were set forth by Israeli witnesses to explain and justify even the use of live ammunition by the IDF against unarmed Palestinian demonstrators during the opening days of the second intifada. During these crucial days there was no evidence of Palestinian gunfire.
25. The Palestinians view this link between Palestinian acts of resistance and Israeli responses from an entirely different angle of interpretation. To Palestinians, the Israeli use of force from day one of the second intifada, and indeed before Ariel Sharon’ s visit on 28 September to the Al Aqsa mosque, was intended to crush any Palestinian impulse to oppose openly the continued Israeli domination and occupation of the West Bank and Gaza. For most Palestinians, the closures of roads and borders, destruction of homes and property, and accompanying measures of curfews and restrictions are regarded as clear expressions of an Israeli policy of inflicting collective punishment upon all Palestinian inhabitants. Palestinians also rejected the view that the Palestinian Authority, and its police, had the capacity to prevent hostile demonstrations or to ensure the absence of violent incidents involving targets within Israel. When Israel responded to such events by punishing the territories as a whole it was viewed by Palestinians as vindictive, unjust and illegal because such a response lacked any discernible connection to either the perpetrator or to prospects for deterrence of future violence.
26. Closely related to such perceptions are differences of viewpoint as to the nature of the second intifada. Israelis tended to contrast the first with second intifadas. The first intifada was seen in retrospect by Israelis as having been a largely spontaneous, bottom-up and non-violent expression of opposition to Israeli occupation. It was, in such circumstances, not reasonable to hold the Palestinian leadership responsible for the disorder. According to Israelis, the second intifada was instigated from above so as to mount a timely challenge to the Israeli leadership at a delicate moment in the peace negotiations. It was a calculated plan to improve upon an exceedingly weak Palestinian bargaining position and it also represented a serious failure by the Palestinian Authority to carry out its obligations under the Interim Agreements flowing from Oslo to maintain security for Israel in areas subject to its authority.
27. The Palestinians see the second intifada from an entirely different perspective, essentially from the outlook of an occupied people. They regard the demonstrations as spontaneous eruptions of pent-up hostile sentiment arising from years of frustration, disappointment and humiliation. Palestinians interpret the Israeli responses as consistent with the basic structure of the occupation of their territories, as one-sided, lacking in empathy for the Palestinian civilian population, and designed to punish and crush any signs of resistance.
28. From this perspective, the Palestinians see the greater reliance by Israel on heavy weapons and deadly fire in the second intifada, as compared to the first, as seeking to discourage Palestinians from either raising the level of their resistance or resisting altogether. This reliance on the tactics of war is also perceived as providing Israel with a pretext for avoiding the restraints associated with the exercise of police responsibilities or relating to the application of standards of human rights.
29. In addition to these basic structural issues, it is of great importance to appreciate the added vulnerability of Palestinian refugees who comprise about 50 per cent of the population in the Palestinian territories and whose number is increasing at a rate of more than 3 per cent per annum. While the Israelis tend to perceive Palestinians resident in the territories as a single reality, without according any special attention to the refugees, the Palestinians are far more conscious of the acute suffering that Israeli security measures have brought to the refugee communities during this second intifada.
30. These refugees have been particularly victimized during the second intifada, often being trapped within their crowded confines by closure and curfew measures, which has made it impossible for many refugees to keep their jobs. Unemployment is high, savings almost non-existent, with great suffering resulting. Also, for historical reasons, the Palestinian refugees, alone among refugee communities in the world, fall outside the protective regime of the Office of the United Nations High Commissioner for Refugees (UNHCR). UNRWA provides relief and humanitarian aid, but is not constitutionally or politically empowered to provide needed protection, a conclusion supported for us by discussions with leading United Nations officials and NGO experts.
31. A further fundamental question of human rights relates to the extreme differences between the parties on matters pertaining to the core dispute, the wider refugee issue and its relationship to a successful peace process. The Israeli consensus regards the assertion of any serious demand to implement a Palestinian right of return in relation to Palestinians expelled from 530 villages in 1948 as a decisive complication in the search for “ peace”. The Palestinian approach is more varied and tentative. Some Palestinians do insist that the right of return be fully implemented in accordance with international law, which accords priority to repatriation to the extent desired. More frequently, Palestinians seem more flexible on this matter, seeking mainly a symbolic acknowledgement by Israel of the hardships associated with the expulsions, some provision for compensation and some possibilities for Palestinian family unification. This Palestinian view suggests that if there is Israeli good will on other outstanding issues, such as Jerusalem and the settlements, then controversy over the right of return can be addressed in a manner that takes account of practical realities that have developed in the course of the more than 50 years since the critical events.
32. Overall, the Government of Israel and Israeli public opinion tend to regard all Israeli uses of force as reasonable measures of security, given the altered connection between the two societies as a result of the IDF redeployment associated with the Oslo process. Such security measures need to be stringent and intrusive so as to afford protection to the settlements, and to settler movement to and from Israel. Israeli security is a catch-all justification for all policies directed coercively at the people of Palestine. Such a major premise enables the Israeli outlook to view any Palestinian recourse to force as tantamount to “terrorism” ;. The perceptual gap is greatest on this issue of violence and its interpretation, as Palestinians view their acts of opposition as reasonable responses to an illegal occupation of their homeland, treating their violence as produced by consistent Israeli overreaction to non-violent resistance. Additionally, Palestinians universally reject Israel’s wider security rationale and view restrictions on movement, closures, property destruction, political assassinations, sniper shootings and the like as punitive and vindictive practices inconsistent with their fundamental human rights, as well as with the minimum restraints embodied in international humanitarian law.
33. There is one comprehensive observation bearing on the perception of United Nations authority by the two sides. Israelis tend to view the United Nations and most of the international community as completely unsympathetic to their quest for security, as well as biased in favour of Palestinian claims and grievances. On their side, the Palestinians feel disillusioned about the effectiveness of United Nations support and abandoned in their hour of need for elemental protection. Palestinians refer to the myriad United Nations resolutions supporting their cause, but never implemented. In this sense, both sides are currently suspicious about the role of the United Nations, its outlook, capacity and commitment.
34. Three conclusions follow from this consideration of Israeli-Palestinian perceptual gaps:
(a) The importance of encouraging better contact between persons of good will on both sides so that communication between the parties is more open and takes greater account of the views of the other side. This observation applies particularly to journalists, currently by and large confined within their respective societies, who tend to provide readers with partisan accounts of the interaction of Israelis and Palestinians that are uncritical of their respective official positions and to employ language that reinforces “enemy” stereotypes of “the other”;
(b) The challenge to the organs of the United Nations to rehabilitate their reputation in relation to both Israel and the Palestinian Authority, and the two populations, by seeking to achieve objectivity in apportioning legal and political responsibility, in calling for certain conduct in the name of international law, and in fashioning proposals for peace and reconciliation. As important, or more so, is the need to take steps to ensure that United Nations directives, whether in the form of resolutions or otherwise, are implemented to the extent possible, and that non-compliance is addressed by follow-up action;
(c) An appreciation that a commitment to objectivity does not imply a posture of “neutrality” with respect to addressing the merits of controversies concerning alleged violations of human rights and international humanitarian law. Judgements can and must be made. It is useful to recall in this connection the statement of the Israeli Minister for Foreign Affairs, Shlomo Ben-Ami, on 28 November 2000 in the course of a Cabinet discussion, opposing the release of supposed Palestinian transgressors during the early stages of the second intifada: “Accusations made by a well-established society about how a people it is oppressing is breaking the rules to attain its rights do not have much credence” (article by Akiva Elder in Ha’aretz, 28 November 2000). Such a perspective underlies the entire undertaking of our report. We have attempted to the extent possible to reflect the facts and law fairly and accurately in relation to both sides, but we have evaluated the relative weight of facts and contending arguments about their legal significance. This process alone enables us to draw firm conclusions about the existence of violations of international legal standards of human rights and of international humanitarian law.
IV. THE LEGAL STATUS OF THE CONFLICT
35. The legal status of the West Bank and Gaza and the legal regime governing relations between Israel and the people of Palestine have been in dispute ever since Israel first occupied the West Bank and Gaza in 1967. As the sovereignty of Jordan over the West Bank was questionable and Egypt never asserted sovereignty over Gaza, the Government of Israel took the view that there was no sovereign Power at whose expense it occupied these territories. Consequently, although Israel is a party to the Fourth Geneva Convention of 1949, it maintained that it was not bound in law to treat the territories as occupied territories within the meaning of the Fourth Geneva Convention. Despite this, Israel agreed to apply certain of the humanitarian provisions contained in the Fourth Geneva Convention to the occupied territories on a de facto basis.
36. The peace agreements between Israel and the Palestinian Authority, hereafter referred to as the Oslo Accords, have superimposed an additional level of complexity on an already disputed legal situation. It is now argued by Israel that, despite the prohibitions contained in article 47 of the Fourth Geneva Convention on interfering with the rights of protected persons in an occupied territory by agreement between the authorities of the occupied territory and the occupying Power, the Oslo Accords have substantially altered the situation. In particular, it is argued by Israel that it can no longer be viewed as an occupying Power in respect of the “A” areas, accommodating the majority of the Palestinian population, because effective control in these areas has been handed over to the Palestinian Authority.
37. The status of the West Bank and Gaza raises serious questions, not only for the above reasons, but also because of the impact of human rights and self-determination on the territory. A prolonged occupation, lasting for more than 30 years, was not envisaged by the drafters of the Fourth Geneva Convention (see art. 6). Commentators have therefore suggested that in the case of the prolonged occupation, the occupying Power is subject to the restraints imposed by international human rights law, as well as the rules of international humanitarian law. The right to self-determination, which features prominently in both customary international law and international human rights instruments, is of particular importance in any assessment of the status of the West Bank and Gaza. The right of the Palestinian people to self-determination has repeatedly been recognized by the General Assembly of the United Nations and there can be little doubt that the ultimate goal of the Oslo peace process is to establish an independent Palestinian State. Indeed over 100 States already have relations with the Palestinian entity, not unlike relations with an independent State, while the Palestinian Authority has observer status in many international organizations. The Palestinian question is, therefore, seen by many as a colonial issue and the recognition of Palestinian statehood as the last step in the decolonization process initiated by the General Assembly in its resolution 1514 (XV).
38. Uncertainty about the status of Palestine in international law has complicated the conflict between Israel and the Palestinian people since 29 September 2000. The Government of Israel argues that it can no longer be seen as an occupying Power in respect of the A areas because it has ceded control over these territories to the Palestinian Authority. Moreover, it argues that, unlike the first intifada, in which the weapons of the Palestinian uprising were mainly stones, the weapons of the new intifada include guns and heavier weaponry, with the result that there is now an armed conflict between Israel and the Palestinian people led by the Palestinian Authority. This argument seeks to justify the use of force resorted to by the IDF in the present conflict. In essence, Israel argues that it cannot be seen as an occupying police power required to act in accordance with police law enforcement codes, but that it is engaged in an armed conflict in which it is entitled to use military means, including the use of lethal weapons, to suppress political demonstrations, to kill Palestinian leaders and to destroy homes and property in the interest of military necessity.
39. Clearly, there is no international armed conflict in the region, as Palestine, despite widespread recognition, still falls short of the accepted criteria of statehood. The question then arises as to whether there is a non-international armed conflict, defined by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Tadic case, as “protracted armed violence between governmental authorities and organized armed groups”. The Israeli argument that the threshold for an armed conflict has been met is based on the fact that there have been some 3,000 incidents allegedly involving exchanges of gunfire and that Palestinian violence is organized and orchestrated by the Palestinian Authority. A contrary view advanced by the Palestinians is that the present intifada is to be categorized as an uprising of large elements of a civilian population against an occupying Power’s unlawful abuses of its control over that population and its environment; that the uprising has been instigated by loosely organized elements of the population opposed to Israeli occupation of Palestine and the failure of the Palestinian Authority to improve the lot of the Palestinian people; and that there are no properly organized armed groups, let alone armed groups coordinated or organized by the Palestinian Authority.
40. It is difficult for the Commission to make a final judgement on this matter. However, it inclines to the view that sporadic demonstrations/confrontations often provoked by the killing of demonstrators and not resulting in loss of life on the part of Israeli soldiers, undisciplined lynchings (as in the tragic killing of Israeli reservists on 12 October 2000 in Ramallah), acts of terrorism in Israel itself and the shooting of soldiers and settlers on roads leading to settlements by largely unorganized gunmen cannot amount to protracted armed violence on the part of an organized armed group. This assessment is confirmed by the peace that prevails in those areas of the West Bank and Gaza visited by the Commission. The Commission realizes that this assessment, based on a brief visit to the region and the views of witnesses and NGOs generally unsympathetic to the IDF, may not be fully accurate. However, there is enough doubt in the minds of the members of the Commission as to the prevailing situation to place in question the assessment of the situation as an armed conflict by the IDF justifying its resort to military rather than police measures.
41. In the opinion of the Commission, the conflict remains subject to the rules of the Fourth Geneva Convention. It does not accept the Israeli argument that the Fourth Geneva Convention is inapplicable by reason of the absence of a residual sovereign Power in the OPT. This argument, premised on a strained interpretation of article 2 of the Convention, fails to take account of the fact that the law of occupation is concerned with the interests of the population of an occupied territory rather than those of a displaced sovereign. The argument that Israel is no longer an occupying Power because it lacks effective control over A areas of the OPT carries more weight, but is likewise untenable. The test for the application of the legal regime of occupation is not whether the occupying Power fails to exercise effective control over the territory, but whether it has the ability to exercise such power, a principle affirmed by the United States Military Tribunal at Nürnberg in In re List and others (The Hostages Case) in 1948. The Oslo Accords leave Israel with the ultimate legal control over the OPT and the fact that for political reasons it has chosen not to exercise this control, when it undoubtedly has the military capacity to do so, cannot relieve Israel of its responsibilities as an occupying Power.
42. While an occupying Power or party to a conflict may be given a margin of interpretation in its assessment of the nature of the conflict, it cannot be allowed unilaterally to categorize a situation in such a way that the restraints of international humanitarian law and human rights law are abandoned. For this reason, the Commission suggests that the High Contracting Parties to the Geneva Convention should seriously address the nature of the conflict and Israel’s obligations as a party to the Fourth Geneva Convention. The Commission is mindful of the Israeli objection to the “politicization” of the Geneva Conventions, but it sees no alternative to the exercise of the supervisory powers of the High Contracting Parties under article 1 of the Fourth Geneva Convention. Israel’s objection that article 1 does not oblige a High Contracting Party to “ensure” respect for the Convention on the part of other States parties runs counter to the views of the ICRC and to the general obligation on the part of States to ensure respect for humanitarian law.
43. Even if the conflict is categorized as an armed conflict, entitling the IDF to greater latitude in the exercise of its powers, the IDF is certainly not freed from all restraints under international humanitarian law and human rights law. It is still obliged to observe the principle of distinction requiring that civilians may not be made the object of attack, “unless and for such time as they take a direct part in hostilities” (a principle reaffirmed in article 51 (3) of Additional Protocol I to the Geneva Conventions). Stone throwing by youths at heavily protected military posts hardly seems to involve participation in hostilities. Moreover, there is considerable evidence of indiscriminate firing at civilians in the proximity of demonstrations and elsewhere. In addition, the IDF is subject to the principle of proportionality which requires that injury to non-combatants or damage to civilian objects may not be disproportionate to the military advantages derived from an operation. The use of lethal weapons against demonstrators and the widespread destruction of homes and property along settlement roads cannot, in the opinion of the Commission, be seen as proportionate in the circumstances. Human rights norms also provide a yardstick for measuring conduct in the OPT, as there is general agreement that such norms are to be applied in the case of prolonged occupation. The 1979 Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials reflect the human rights norms applicable in the case of law enforcement and crowd control. It is against this background that allegations of human rights violations and violations of international humanitarian law will be considered in the following section.
V. EXCESSIVE USE OF FORCE
44. Casualties have been high in the present intifada. According to conservative estimates, as at 21 February 2001, 311 Palestinians (civilians and security forces) have been killed by Israeli security forces and civilians in the OPT; 47 Israelis (civilians and security forces) have been killed by Palestinian civilians and security forces; 11,575 Palestinians and 466 Israelis have been injured; 84 Palestinian children under the age of 17 years have been killed and some 5,000 injured; 1 Israeli child has been killed and 15 injured; 271 Palestinian civilians and 40 members of the security forces have been killed; while 27 Israeli civilians and 20 members of the security forces have been killed.
45. Most of the Palestinian deaths and injuries have been caused by live ammunition (deaths: 93 per cent; injuries: 20 per cent), rubber-coated bullets (deaths: 1 per cent; injuries: 37 per cent ), and tear gas (deaths: 1 per cent; injuries: 32 per cent). Most of these deaths and injuries have occurred in confrontations/demonstrations held on the perimeters of A areas, roads to settlements or junctions on the road to settlements. There is no evidence that members of the IDF responsible for such killings or the infliction of such injuries were killed or seriously injured. On the contrary, the evidence suggests that members of the IDF, behind concrete bunkers, were in most cases not exposed to life-threatening attacks by stone - or Molotov-cocktail throwers, or even by sporadic gunfire from gunmen in or around the demonstrations. This assessment is vigorously disputed by the IDF, which maintains that rubber-coated bullets and live ammunition have only been used in life-threatening situations. 1 However, statistics, reflected in the number of Palestinian deaths at demonstrations and the absence of IDF deaths or serious injuries at such confrontations, the evidence of eyewitnesses who testified before the Commission and the reports of NGOs and international bodies place the IDF assessment in serious question. It is difficult to resist the conclusion that most of these demonstrations could have been dealt with by methods normally used to suppress violent demonstrations, such as water cannons, tear gas and soft rubber bullets (of the kind used in Northern Ireland). Also, it is unclear why the IDF has not used riot shields to protect itself against stone-throwers. By and large the evidence suggests that the IDF is either not trained or equipped to deal adequately with violent demonstrations (despite its long experience in coping with such demonstrations) or that it has deliberately chosen not to employ such methods. For this reason the Commission shares the view expressed by many NGOs that the IDF is to be censured for failing to comply with the methods for law enforcement laid down in the law enforcement codes of 1979 and 1990 referred to above. The Commission likewise shares the concerns of NGOs about the failure of the IDF to comply with its own open-fire regulations relating to the use of live ammunition in situations of this kind. 46. Even if the above assessment is incorrect and the confrontations in question were manifestations of an armed conflict between the IDF and an organized Palestinian force, the Commission is of the view that the response of the IDF fails to meet the requirement of proportionality and shows a serious disregard for civilians in the proximity of the demonstrations.
47. The Commission received disturbing evidence about both the rubber-coated bullets and the live ammunition employed by the IDF. The former are, apparently, designed to target particular individuals and not to disperse crowds. Moreover, it is misleading to refer to them as “rubber bullets” as they are metal bullets with a thin rubber coating. The live ammunition employed includes high-velocity bullets which splinter on impact and cause the maximum harm. Equally disturbing is the evidence that many of the deaths and injuries inflicted were the result of head wounds and wounds to the upper body, which suggests an intention to cause serious bodily injury rather than to restrain demonstrations/confrontations.
48. International law obliges the military to be particularly careful in its treatment of children. Of the Palestinians killed, 27 per cent have been children below the age of 18 years and approximately 50 per cent of those injured have been below the age of 18 years. These children have been armed with stones or, in some cases, Molotov cocktails. The Israeli position is that the participation of children in demonstrations against the IDF has been organized, encouraged and orchestrated by the Palestinian Authority after thorough indoctrination against Israelis. While the Commission is prepared to accept that some children are likely to have been exposed to anti-Israeli propaganda in school or special training camps, it cannot disregard the fact that demonstrations are substantially the result of the humiliation and frustration felt by children and their families from years of occupation. The Commission heard evidence from parents and NGOs about the unsuccessful attempts of many parents to prevent their children participating in demonstrations and the grief caused them by the death and suffering of their children. In this respect, Palestinian parents are no different from Israeli parents. It is likely that the Palestinian Authority could have done more to restrain children from participation in stone-throwing demonstrations. The evidence suggests that, on occasion, the Palestinian police made attempts to prevent demonstrations, but these attempts were often unsuccessful. This can be ascribed to the incompetence of the Palestinian police, the fact that the Palestinian police were themselves targeted by stone-throwers when they attempted to curtail demonstrations, and an understandable identification of the Palestinian police with the goals and spirit of the demonstrators. History is replete with instances of cases in which young people, prompted by idealism, despair, humiliation and the desire for excitement, have participated in demonstrations that have confronted an oppressive regime. In recent times children have behaved in a similar way in Northern Ireland, South Africa, Indonesia and elsewhere. The insistence of the IDF that the Palestinian demonstrators, humiliated by years of military occupation which has become part of their culture and upbringing, have been organized and orchestrated by the Palestinian Authority either shows an ignorance of history or cynical disregard for the overwhelming weight of the evidence.
49. The excessive use of force on the part of the IDF and the failure to comply with international humanitarian law is further demonstrated by the failure of the IDF to respect the vehicles of the Red Crescent and other medical vehicles. Statistics show that vehicles of the Red Crescent have been attacked on 101 occasions. The IDF has also prevented ambulances and private vehicles from travelling to hospitals. In this respect, it should be stressed that the Palestinians have likewise shown a lack of respect for medical vehicles and there have been 57 incidents in which Palestinians have attacked personnel and vehicles of the Magen David Adom.
50. In the present intifada, the IDF apparently on grounds of military necessity, has destroyed homes and laid to waste a significant amount of agricultural land, especially in Gaza, which is already land starved. Statistics show that 94 homes have been demolished and 7,024 dunums of agricultural land bulldozed in Gaza. Damage to private houses is put at US$ 9.5 million and damage to agricultural land at about US$ 27 million. Most of this action has occurred on roads leading to settlements, ostensibly in the interest of the protection of settlement vehicles. The Commission inspected some of the devastation caused by the IDF along settlement roads. On the Kusufim road, in the Qarara district, it inspected land that had been bulldozed for a distance of some 700 metres from the road. Houses situated on this land had been destroyed and families compelled to live in tents. Water wells in the vicinity had also been completely destroyed. The Commission found it difficult to believe that such destruction, generally carried out in the middle of the night and without advance warning, was justified on grounds of military necessity. To the Commission it seemed that such destruction of property had been carried out in an intimidatory manner unrelated to security, disrespectful of civilian well-being and going well beyond the needs of military necessity. The evidence suggests that destruction of property and demolition of houses have been replicated elsewhere in the West Bank and Gaza. Palestinians, like other people, are deeply attached to their homes and agricultural land. The demolition of homes and the destruction of olive and citrus trees, nurtured by farmers over many years, has caused untold human suffering to persons unconnected with the present violence. Even if a low-intensity armed conflict exists in the West Bank and Gaza, it seems evident to us that such measures are disproportionate, in the sense that the damage to civilian property outweighs military gain. Here it should be stressed that the Fourth Geneva Convention prohibits the destruction of private property by the occupying Power “except where such destruction is rendered absolutely necessary by military operations” (art. 53).
51. The Commission concludes that the IDF has engaged in the excessive use of force at the expense of life and property in Palestine. At the same time the Commission wishes to express its horror at the lynchings of Israeli military reservists in Ramallah on 12 October 2000, the killing of Israelis at a bus stop in Tel Aviv by a Palestinian bus driver on 14 February 2001 and similar incidents that have done much to inflame Israeli public opinion against the Palestinian uprising.
52. There is no evidence that the IDF has taken serious steps to investigate the killing or wounding of Palestinians, except in a handful of cases, even where the circumstances strongly suggest that soldiers had behaved in an undisciplined or illegal manner. The excuse that no investigations are required on account of the characterization of the conflict as armed conflict is not convincing and shows a disregard for the provision of the Fourth Geneva Convention which requires the occupying Power to prosecute those guilty of committing grave breaches and other infractions of the Convention (art. 146). Equally unconvincing are the reasons given by the Palestinian Authority for its failure to investigate and prosecute the killings of Israelis, particularly those responsible for the Ramallah lynchings.
VI. EXTRAJUDICIAL EXECUTIONS/POLITICAL ASSASSINATIONS
53. Extrajudicial executions or targeted political assassinations carried out by the IDF have resulted in only a small number of deaths and cannot compare in magnitude with the more widespread suffering caused to the Palestinian population. The Commission has, however, decided to pay special attention to these killings, because they have been officially acknowledged, promoted and condoned.
54. Israel has long been accused of being responsible for the assassination of targeted Palestinian individuals, but it is only during the second intifada that such a practice has been officially acknowledged and defended at the highest levels of the Government of Israel. In early January 2001, the Israeli Deputy Minister of Defence, Ephraim Sneh, justified the policy in the following language: “I can tell you unequivocally what the policy is. If anyone has committed or is planning to carry out terrorist attacks, he has to be hit … It is effective, precise and just.” At a meeting of the Foreign Affairs and Defence Committee, Prime Minister Ehud Barak put the claim more broadly: “If people are shooting at us and killing us, our only choice is to strike back. A country under terrorist threat must fight back.” And more directly, while visiting a military command on the West Bank, Mr. Barak was quoted as saying, “The IDF is free to take action against those who seek to harm us”.
55. There is further official confirmation of the Israeli claim of right with respect to extrajudicial killings. When the IDF West Bank military commander, Brigadier-General Beni Gantz, was asked whether Israel was pursuing a “liquidation” policy with respect to the Palestinians, he responded as follows: “You said liquidation, not me. We will initiate action as necessary. We will not stop such action as long as there is a threat.” Israel’s Chief of Staff, Shaul Mofaz, invoked the legal opinion issued by the Military Advocate-General, Menachem Finkelstein, that it was permissible in exceptional cases to kill Palestinian terrorists, expressed in the following guarded language: “This is not routine, but an exceptional method whose goal is to save human lives in the absence of any other alternative … ; It is used against people [who have] definitely [been] identified as having worked, and are working, to commit attacks against Israel.” It should be noted that the Military Advocate-General uses more circumscribed language than do the political and military leaders, but his guidelines are self-applied, depending upon the accuracy of Israeli intelligence and upon good faith in limiting such tactics to circumstances of an exceptional character.
56. One prominent instance of a political assassination involved the sniper shooting of Dr. Thabat Ahmad Thabat in Tulkarem, West Bank, as he was driving his car from his house in the morning of 9 December 2000. Dr. Thabat, a dentist, 50 years of age, father of three, held official positions in the Palestinian Health Ministry and was a lecturer on public health at Al Quds Open University. He was the Fatah secretary in Tulkarem and was in regular contact with Israeli NGOs working in the area of health and human rights. Several Israeli witnesses appearing before the Commission expressed dismay about the killing of Dr. Thabat, describing him as their “friend” and “partner” in the search for peace. Such expressions do not preclude the possibility that Dr. Thabat may have had a double identity, but Israel has produced no evidence of his complicity in violence against Israeli targets, beyond the vague allegation of his involvement in “terrorist activities”. Press reports indicated that Israeli Special Forces undertook this action against Dr. Thabat as part of a military operation that consisted of ”cleansing” Fatah security capacities in view of the demonstrations inside the Palestinian territories, and specifically at Tulkarem. Ms. Siham Thabat, the widow of Dr. Thabat, submitted a petition to the Supreme Court of Israel asking for an end to Israel’s “cleansing policy”, described as imposing “capital punishment without trial”. The petition was dismissed. As far as is known, the prosecution submitted no further evidence specifically implicating Dr. Thabat.
57. While the Commission was present in the Palestinian territories, another prominent instance of extrajudicial killing occurred. It involved the use of a Cobra helicopter gunship to attack Massoud Iyyad with three rockets on 14 February 2001 while he was driving his car in Gaza near the Jabalya refugee camp. Mr. Iyyad was a lieutenant colonel and high-ranking member of Force 17, an elite security unit specifically assigned the task of protecting Yasser Arafat. Israeli security forces claimed credit for the assassination, contending that Mr. Iyyad was a leader of a Hezbollah cell in Gaza that was intending to transform the second intifada into a Lebanon-style war of attrition of the sort successfully waged by Hezbollah in the 1990s. Aside from the legality of such tactics, the allegations were never substantiated by the release of documentary or other evidence.
58. Such extrajudicial executions during the second intifada number at least 11, but the figure is probably much higher. Palestinian and independent sources put the figure at somewhere between 25 and 35. On at least one occasion, the killing of Hussein Ábayat on 9 November 2000 by anti-tank missiles fired at his car from helicopters, two women bystanders were also killed and three other Palestinians were seriously injured.
59. In a disturbing escalation of language associated with such violence, a designated spokesperson of the settler movement, Yehoshua Mor-Yosef, has been quoted as saying “Arafat is an enemy, he was never a partner. After seven years of war and him sending his own people to kill, we need to assassinate him”. (International Herald Tribune, 27 February 2001, p. 8).
60. There have been several important political condemnations of extrajudicial killings. The Government of the United States has expressed a critical attitude towards extrajudicial killing in a detailed exposition of the practice contained in the “Occupied Territories” section of the Country Reports on Human Rights Practices-2000 issued by the Department of State. On behalf of the European Union, its Presidency issued a declaration on extrajudicial killings, calling them “unacceptable and contrary to the rule of law”, and urging Israel “to cease this practice and thus respect international law”. (Brussels, 13 February 2001, 5928/01 (Presse 47)). This declaration was formally submitted by the Council of the European Union to the Secretary-General of the United Nations with a request that it be circulated as a document of the General Assembly. 61. It is the view of the Commission that, whatever the truth of various allegations directed against specific individuals, the practice of political assassination is a fundamental violation of international human rights standards, as well as a grave breach of the Fourth Geneva Convention. Several human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, affirm the right to life and specifically prohibit executions of civilians without trial and a fair judicial process.
62. Because the law of occupation also applies, provisions of this lex specialis take precedence over human rights. (For clarification of this conclusion, see the discussion on the legal status of the conflict in section IV above.) Thus, whether a particular loss of life is to be considered an arbitrary loss of life contrary to article 6 of the International Covenant on Civil and Political Rights can only be decided by reference to the law of occupation in the Fourth Geneva Convention. Article 4 of the Fourth Geneva Convention defines persons protected by the Convention as “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. The phrase “in the hands of” simply means that the person is on territory that is under the control of the State in question and implies control that is more than mere physical control. Civilians lose the protection under the Fourth Geneva Convention when they become combatants by taking a direct part in hostilities (art. 51 (3) of Additional Protocol I). Israel contends that the victims of targeted political assassinations were combatants. This is unconvincing for two related reasons: they were not participating in the hostilities at the time they were killed; and no evidence was provided by Israel to back up its contention of a combat role despite their civilian appearance.
63. There is no legal foundation for killing protected persons on the basis of suspicion or even on the basis of evidence of their supposedly menacing activities or possible future undertakings. On the contrary, article 27 of the Fourth Geneva Convention provides for the respect of protected persons, article 32 explicitly prohibits their killing under such conditions, and article 68 places restrictions on the application of the death penalty and, in any event, requires a prior judicial trial.
64. As the evidence indicates, Dr. Thabat and several others who were targets of political assassinations could have been arrested when, as was the case in this instance, he made almost daily trips to points under Israeli security control. The Commission concludes that the practice of targeted political assassination, which is fully acknowledged by the Government of Israel at its highest levels, violates a number of provisions of the Fourth Geneva Convention. It also represents a grave breach of the Convention, which in article 147 refers to “wilful killing” in this connection. Further, article 146 calls upon High Contracting Parties to enforce this prohibition in relation to those responsible for its violation.
65. Jewish settlements in the West Bank (including East Jerusalem) and Gaza feature prominently in the present conflict between Israel and the Palestinian people. This report focuses on the implications of the settlements for human rights and international humanitarian law during the second intifada.
66. Israel argues that the issue of Jewish settlements is a political one to be resolved in negotiations between Israel and the Palestinians over the political future of the OPT. Palestinians, on the other hand, see the settlement issue as a major impediment to the peace process and a question governed by international law. They argue that settlements are unlawful as they violate article 49 (6) of the Fourth Geneva Convention, which prohibits an occupying Power from transferring parts of its own civilian population into the territory it occupies. The international community has given its overwhelming support to the Palestinian position. Repeated resolutions of both the Security Council and the General Assembly condemn Jewish settlements in the West Bank and Gaza as a violation of the Fourth Geneva Convention. The same attitude is adopted by the International Committee of the Red Cross.
67. The Commission is itself of the opinion that Jewish settlements in the West Bank and Gaza violate article 49 (6) of the Fourth Geneva Convention and place a serious obstacle in the way of durable peace.
68. Since 1967, Israel has been responsible for establishing, financing and protecting Jewish settlements in the West Bank and Gaza. Initially this programme of creeping annexation pursued by means of the requisitioning and occupation of Palestinian land was justified by Israel on security grounds. This pretext has long been abandoned. Indeed, Yitshak Rabin, while he was Prime Minister and Minister of Defence, acknowledged that most of the settlements added nothing to security and in fact were a burden on the army. Most settlements are today inhabited by civilian settlers motivated either by the ideology of Zionist expansion or by the comforts of a suburban way of life, subsidized by the Government of Israel. From the perspective of the Government, settlements create factual situations on the ground that serve to establish political control over the occupied Palestinian territories.
69. Today there are some 190 settlements in the West Bank and Gaza, inhabited by approximately 380,000 settlers, of whom some 180,000 live in the East Jerusalem area. Settlements have expanded considerably since the start of the Oslo peace process and accelerated under the Prime Ministership of Mr. Barak. Settlements have continued to expand since the start of the second intifada. The map in annex III gives an indication of the extent to which settlements are scattered throughout the territories, and the population of the different settlements. Settlements differ considerably in size and location. Some number over 10,000 inhabitants, while others have less than 100 inhabitants. Some are situated at a considerable distance from Palestinian towns, whereas others are situated within a Palestinian city, as, most prominently, in the case of the Jewish settlement in Hebron, or on the doorstep of a Palestinian village or refugee camp. The settlement of Neve Dekalim, for instance, is situated adjacent to the crowded refugee camp of Khan Yunis. It was here that the Commission came under gunfire from the IDF.
70. In Gaza, settlement roads run through Palestinian territory and cross roads used by Palestinians, causing great traffic congestion for Palestinians whose vehicles are required to halt every time a settler or military vehicle approaches a crossroad. In the West Bank, on the other hand, Israel has built a vast road system, running for some 400 km, which bypasses Palestinian population centres and enables settlers and military forces protecting them to move speedily and safely through the West Bank. To achieve this, 160,000 dunums of land were requisitioned, much of it under cultivation by Palestinian farmers. Moreover, in some instances, Palestinian homes were demolished without compensation for the purpose of constructing this network of bypass roads. These roads prevent the expansion of Palestinian villages and undermine the economic development of Palestinians by restricting Palestinian movement and impeding the flow of commerce and workers from one Palestinian area to another. The scale of the investment in this road network raises troubling questions about Israel’s long-term intentions for the West Bank.
71. The relationship between settlers and Palestinians is an unhappy one and each side views the other with hostility, anger and suspicion. Protected by the Israeli military, and exempt from the jurisdiction of the courts of the Palestinian Authority, settlers have committed numerous acts of violence against the Palestinians and destroyed Palestinian agricultural land and property. Israeli justice has often either turned a blind eye to such acts or treated them with leniency bordering on exoneration. Inevitably, this has fuelled the resentment of Palestinians, who regard Israeli justice as biased in favour of settlers. Since the beginning of the intifada on 29 September 2000, incidents of settler violence have dramatically increased. Palestinian hostility to settlers has grown alarmingly since the start of this intifada and most of the Israelis killed in the present conflict have been settlers or soldiers charged with the task of protecting settlements and roads leading to settlements.
72. Settlements are a major obstacle in the way of peace between Israelis and Palestinians. First, they virtually foreclose the possibility of a viable Palestinian State as they, together with the road system connecting them, destroy the territorial integrity of Palestine. In this sense, they act as a major impediment to the exercise of the right to self-determination within the internationally recognized self-determination unit of Palestine, i.e. the territory occupied by Israel after the 1967 war. Secondly, settlements provide daily evidence of the violation of international law and the failure of the international community, acting through the United Nations and the High Contracting Parties to the Geneva Conventions, to remedy such a situation. The despair and cynicism in the Palestinian community about the willingness of the international community to enforce the rule of law is in large measure due to its failure to halt the growth of the settler population and to persuade the Government of Israel to reverse this practice.
73. The link between settlements and violence in the present intifada is clear. Many of the acts of violence carried out by the IDF and settlers that have resulted in Palestinian deaths and injuries have occurred on the heavily defended roads leading to settlements or in the proximity of settlements. Settlements provide a visible and proximate target for the anger fuelled by years of Israeli occupation. The IDF convoys and bases in the proximity of settlements aimed at the protection of such settlements have been the focal point of Palestinian demonstrations, violence and sharpshooting. Likewise, much of the Palestinian property bulldozed by the IDF has been destroyed not in the interests of military security, but the security of settlers. Homes, fruit and olive trees and crops have been destroyed by the IDF in order to make settlers feel more secure and to facilitate their access to their settlements by means of protected roads.
74. Settlers, too, have suffered from their proximity to the Palestinian people. As the most visible symbols of occupation, they are obvious targets for Palestinian gunmen.
75. Without settlements or settlers, there can be no doubt that the number of deaths and injuries in the present intifada would have been but a small fraction of their current number and, quite possibly, the present intifada might not have occurred. Both Israelis and Palestinians are therefore paying a high price in terms of life, bodily integrity and property for a programme that violates a cardinal principle of international humanitarian law.
76. Settlements act as a perpetual reminder to the Palestinian people of the humiliation of military occupation. This sense of humiliation is aggravated by the apparently comfortable way of life of the settlers, whose standard of living contrasts sharply with the poverty of their Palestinian neighbours. Refugees in crowded camps, with poor sanitation and limited water resources, inevitably view with envy and anger settlements with swimming pools and well-watered lawns.
77. Palestinian witnesses before the Commission, from all sections of the community, despite being of different political persuasions and from different income groups, spoke with equal anger and resentment about the presence of settlements and settlers in their territory. Many claimed settlements were a prime cause of the present intifada, a view shared by international organizations working in the West Bank and Gaza.
78. The Commission reaffirms that settlements in the West Bank and Gaza constitute a major violation of international humanitarian law and identify the presence of settlements and settlers as a primary cause of many violations of human rights in the OPT.
VIII. DEPRIVATION OF THE ENJOYMENT OF ECONOMIC AND SOCIAL RIGHTS: EFFECTS OF CLOSURES, CURFEWS, RESTRICTIONS ON MOVEMENT AND DESTRUCTION OF PROPERTY
79. It needs to be kept in mind that the Palestinian population in the occupied territories is, even under normal conditions, very poor, particularly the 50 per cent of the Palestinians living in refugee camps. To impose additional burdens on such a population is inevitably to create patterns of severe material, social and psychological hardships. These hardships entail denials of basic human needs, as protected by international human rights standards, which raises important issues of international law. To claim a security justification for policies that inflict such pronounced harm imposes a heavy burden of persuasion on the claimant, in this case the Government of Israel. The internal closures seem to have a mainly punitive character quite unrelated to security and are more likely to have the opposite effect of inflaming Palestinian resistance. Even external closures, especially for the import of building materials and the export of agricultural products, would seem to be unrelated to the maintenance of security. The condensed presentation of the effects of closure and related policies in this section of the report must be read with such considerations in mind.
Restrictions on movement
80. Since 29 September 2000, Israel has imposed severe restrictions on freedom of movement in the occupied territories. During the 123-day period from 1 October 2000 to 31 January 2001, the Israeli-Palestinian border was closed for labour and trade flows for 93 days, or 75.6 per cent of the time. Internal movement restrictions and internal closures - partial or severe - were in place for 100 per cent of the time in the West Bank and for 89 per cent of the time in Gaza. The Dahania Airport in the Gaza Strip, the only Palestinian airport, was closed for over half of this period. During this 123-day period, the international border crossings to Jordan from the West Bank and to Egypt from Gaza were closed for more than 20 per cent and 40 per cent of the time, respectively. The safe passage connecting the Gaza Strip and the West Bank was closed from 6 October, greatly obstructing travel for Palestinians and diminishing the governmental effectiveness of the PA.
81. The cumulative effect of these restrictions on the freedom of movement of people and goods is understandably perceived by the Palestinians affected as a siege. It has resulted in severe socio-economic hardships in the Palestinian territory. The internal closures have effectively sealed Palestinian population centres and restricted movement from one locality to another. The restriction on the entry of Palestinians into Israel has meant denial of access to their places of work in Israel to an estimated 100,000 Palestinians. The economic results have been devastating: the families of these workers are now suffering from a complete lack of income, threatening them with destitution. The World Bank’s projection that the impact of closure will raise unemployment to 50 per cent and the poverty rate to 43.7 per cent in 2001 has almost been realized.
82. The internal closure has disrupted life within the territories. Workers are unable to reach their places of work. Produce from farms cannot reach markets. Shops and commercial offices are unable to open. From 8 October, numerous limitations were placed on passage between the north and the south of the Gaza Strip and movement between Gaza City and the cities of Khan Yunis and Rafah was prevented almost entirely. Movement within the West Bank has become nearly impossible. Hundreds of IDF checkpoints have been erected throughout the West Bank and entry to and exit from cities requires passing through them. The IDF has placed checkpoints at the entrances to all villages and entry and exit are possible only via dirt roads, entailing enormous hardships. Trips that once took 15 minutes now take several hours. In some of the villages, mostly in areas near settlements and bypass roads, the dirt roads have also been blocked with large concrete blocks and piles of dirt, and residents are imprisoned in their villages. The Commission itself observed such IDF checkpoints and concrete blocks and piles of dirt obstructing access.
83. The closure of the international border crossings with Jordan and Egypt, as well as the restrictions on movement of goods from Israel to the territories, has had a direct negative effect on all sectors of the economy. The near total interruption of the supply of basic construction materials has closed factories and plants dependent on these materials for their production activities. The construction and building sector in the Palestinian territories has been practically suspended owing to imports of basic construction materials such as cement, steel and timber being denied entry by the IDF through their control of border checkpoints. This, in turn, has resulted in the unemployment of tens of thousands of workers and employees in the construction and building sector. The overall disruption of the economy and unemployment, together with mobility restrictions and border closures, have resulted in an average unemployment rate of 38 per cent (more than 250,000 persons) as compared to 11 per cent (71,000 persons) in the first nine months of 2000. According to one estimate, unemployment now directly affects the income of about 910,000 people or 30 per cent of the population.
84. Curfews have been imposed in certain areas of the occupied territories, which in effect imprisons an entire population in their homes. For example, Palestinians in the H2 area of Hebron have been under curfew almost continuously since October 2000. The curfews appear to be imposed for the convenience of settlers in the area as they do not apply to settlers. The character and timing of Israel’s restrictions on the freedom of movement challenge the contention that these restrictions are dictated purely by security considerations: Israel has imposed a sweeping closure, curfew and siege on millions of people, rather than on individuals who pose a security threat. In addition, the policy of restrictions of movement discriminates between the two populations living in the occupied territories, namely Palestinians and non-Palestinians, since the restrictions are imposed exclusively on the Palestinian population. In many cases, the explicit aim of the restrictions is to ensure freedom of movement for the settler population at the expense of the local population.
Negative economic impacts
85. In the absence of border closures, per capita income was projected to be about US$ 2,000 in the Palestinian territories in the year 2000. As a result of border closures and internal movement restrictions, this is estimated to be reduced to US$ 1,680, a decline of 16 per cent. The gravity of this negative impact is measured, however, by the disproportionately high impact on people living below the poverty line (estimated by the World Bank at US$ 2.10 per person per day in consumption expenditures). The number of poor is estimated to have increased from about 650,000 persons to 1 million persons, an increase of over 50 per cent. Given the continuing closures and restrictions of movement of people and goods and the resultant unemployment and total deprivation of income to increasing numbers of the population, poverty and near destitution are mounting. Humanitarian assistance has dramatically increased.
86. The direct economic losses arising from movement restrictions are estimated at 50 per cent of gross domestic product (GDP) for the four-month period of the second intifada and 75 per cent of wage income earned by Palestinian workers in Israel. The GDP loss is estimated at US$ 907.3 million, while the loss of labour income from employment in Israel is estimated at US$ 243.4 million. The total loss is estimated at US$ 1,150.7 million. The loss is about US$ 11 million per working day or US$ 3 per person per working day during the period 1 October 2000-31 January 2001. Significant decreases in earnings in the transportation sector have been reported as a result of the internal siege. The tourism sector has also reported significant decline.
Public sector revenue losses: revenue losses and increased social spending
87. There have been significant losses to the public sector in the form of lost revenues. Domestic income and value added tax (VAT) revenues have been reduced as a result of lower levels of domestic income caused by disruptions in production and reduced labour flows into Israel. External revenues, mainly customs and VAT revenues associated with imports from Israel and abroad, have been reduced by lower commodity flows caused by movement restrictions and reduced consumer demand. In 1999, 63 per cent of all Palestinian Authority revenues were in the form of transfers of receipts collected by the authorities under the terms of the Paris Protocol on Economic Relations of 1994. VAT, customs, income tax, health fees and other taxes collected by Israel on behalf of the PA are estimated at US$ 53 million monthly. These revenues have been withheld from the PA since October 2000. As a result of the eroded revenue base, the PA has been unable to pay salaries to its employees.
Destruction of property
88. There has been continued destruction of property, in particular in the vicinity of settlements or bypass and access roads to settlements, allegedly on grounds of military necessity or security considerations. On 7 October 2000, Israeli tanks and bulldozers invaded the Netzarim Junction and destroyed two residential buildings comprising 32 apartments near the Israeli military outpost. On 8 October, the IDF destroyed an iron-processing factory in the Netzarim area, while in the same area bulldozers swept the agricultural land on the south-eastern and south-western sides of the junction. On 16 October, bulldozers swept land to the north of Neve Dekalim settlement. On 19 October, the IDF swept land leading to the Gush Katif settlement bloc. The Commission visited this area and observed the destruction of the farms, the sweeping of the land and the destruction of citrus and olive trees. This process of destruction of farms, cutting down of fruit trees and demolition of greenhouses planted with vegetables continues. The Commission received evidence from victims whose homes and greenhouses had been destroyed, citrus and olive trees uprooted and farmlands swept by bulldozers.
89. According to one estimate, the Israeli authorities demolished 223 Palestinian-owned buildings during 2000: 68 in the West Bank (including East Jerusalem) and 155 in the Gaza Strip.
Effect of closures and movement restrictions on health care
90. The Commission received evidence of the restrictions obstructing access by the sick and the wounded as well as pregnant women to hospitals. There have also been instances where the prolonged closure of outside borders, including the airport in Gaza, impeded the transfer of wounded Palestinians to other countries for treatment. An example of the effect of denial of access to hospitals is provided by statistical data from St. Luke’s Hospital in Nablus, which reported a 38 per cent decline in the admission rate, a 29 per cent decline in the occupancy rate, a 53 per cent decline in the number of surgical operations performed, a 20 per cent decline in the number of babies delivered, a 48 per cent decline in the number of patients in the intensive care unit, a 49 per cent decline in the number of general practice patients, a 73 per cent decline in the number of visits to specialty services and a 30 per cent decline in the number of physiotherapy cases in the period October-November 2000 as compared to the same period in 1999.
Effect of closures and movement restrictions on education
91. Since the beginning of October 2000, more than 40 schools are reported to have been closed or unable to operate owing to curfews or closures. In the centre of Hebron, 34 schools have been closed, resulting in unemployment for more than 460 teachers, and 13,000 students were reported to be without educational facilities. Four Palestinian schools in Hebron have been closed by the IDF and turned into military bases: the M’aref School, Usama bin Munkez School, the Johar School and the Al Ukhwa School. Several thousand children are reported also to have had to be permanently moved from school premises as a result of damage to the school structure.
92. Schools near flashpoints - 173 in the West Bank and 23 in the Gaza Strip - were the worst hit. They were subjected to several kinds of assault, including bombing by the Israeli army and shooting by settlers.
Violations of internationally recognized human rights norms and international humanitarian law
93. The measures of closure, curfew or destruction of property described above constitute violations of the Fourth Geneva Convention and human rights obligations binding upon Israel. Destruction of property is prohibited by article 53 of the Fourth Geneva Convention, unless such destruction is rendered absolutely necessary for military operations, which does not appear to be the case for much of the destruction carried out. Other obligations under the Fourth Geneva Convention affected by closures are those under articles 23, 55 and 56. These require the free passage of consignments of medical and hospital stores and the free passage of foodstuffs, clothing and medicines intended for certain vulnerable categories of persons and impose a duty to ensure food and medical supplies to the population and to ensure and maintain medical and hospital establishments and services and public health and hygiene in an occupied territory.
94. Human rights norms are also apposite in the context of the closures because, in the Interim Agreement, Israel and the Palestinian Council accepted that they should exercise their powers and responsibilities pursuant to that Agreement with due regard to internationally accepted norms and principles of human rights and the rule of law.2 Human rights violated by the closures include the right to work, internationally recognized in article 6 of the International Covenant on Economic, Social and Cultural Rights. The severe socio-economic hardships caused by the restrictions on movement constitute a violation of the right to an adequate standard of living recognized in article 11 of that Covenant. Destruction of houses that leaves the occupants homeless also violates this right, since it specifically includes the right to adequate housing. The closures and movement restrictions interfere with the right of everyone to education. Children and students are prevented from attending classes, despite the duty of States to make secondary and higher education accessible to all by every appropriate means. In addition, restrictions on movement are also placed on journalists. This affects their reporting of events and constitutes a violation of their freedom of expression and, indirectly, of the population’s right to seek and receive information, recognized in article 19 of the Covenant. This right may be subjected to certain restrictions, but only in certain circumstances and not as a general rule. The Palestinian Authority has also restricted the freedom of movement of journalists.
95. Finally, attention is drawn to article 33 of the Fourth Geneva Convention, which prohibits collective punishment. Israel has invoked security considerations to justify closures and other measures described above. From the Commission’s own observations, it would appear that while in some instances security considerations may justify temporary closures, the comprehensive and protracted closures, as well as the scale and nature of the destruction of property of Palestinian civilians, is best regarded as collective punishment.
IX. PALESTINIAN REFUGEES AND THE SECOND INTIFADA
96. The Commission seeks to draw attention to the distinctive vulnerability of Palestinian refugees as a special case of hardship during the course of the second intifada, particularly as a result of the Israeli policies of closure and blockade. It needs to be appreciated that, according to UNRWA figures for 2000, there are 1,407,621 registered Palestinian refugees living in the West Bank and Gaza, comprising over 50 per cent of the Palestinian population in these territories. That figure represents only 38 per cent of the total Palestinian refugee population, the remainder being spread out mainly in Jordan, Lebanon and the Syrian Arab Republic. There are two sets of issues relevant to our inquiry: first, the vulnerability of Palestinian refugees living in refugee camps on the West Bank and Gaza, and second, the so-called “right of return” issue.
97. There is, first of all, the anomalous status of Palestinian refugees due to their exclusion from the protective mechanisms and responsibility of UNHCR. No other refugee community in the world is so excluded. UNRWA was established in 1949 to address the specific concerns of Palestinian refugees and became operational in 1950. This special regime acknowledging the importance of the refugee dimension of the Israel-Palestine relationship was reinforced over the years by critical United Nations resolutions dealing with the conflict. UNRWA was given responsibility for humanitarian aspects of the international effort to alleviate the material suffering of Palestinian refugees, but it was not entrusted with any protective functions. These functions were assigned to a parallel entity called the United Nations Conciliation Commission for Palestine (UNCCP), which, ironically, was established in response to General Assembly resolution 194 (III) calling for the protection of Palestinian refugees. Unlike UNRWA, UNCCP has been incapable of carrying out its functions, encountering political and financial obstacles from its inception. Although UNCCP continues to exist on paper, it lacks a budget and personnel, and is effectively defunct. Yet, this organizational structure continues to define the legal status of Palestinian refugees.
98. In accordance with the 1951 Convention relating to the Status of Refugees, protection is accorded to all refugees under the authority of UNHCR except for the Palestinians. They are excluded because of article 1D of the 1951 Refugee Convention, which provides: “This convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.” Despite the failure of UNCCP to supply the anticipated protection, Palestinian refugees remain in limbo and have never in the more than half a century of their existence been incorporated within the UNHCR regime.
99. Such a result is particularly disturbing as article 1D explicitly recognizes the possibility that alternative forms of protection may fail for one reason or another. The language of the second paragraph of 1D is clear beyond reasonable dispute on this matter: “When such protection or assistance has ceased for any reason, without the persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.” There is no discernible reason to refrain from implementing this inclusionary provision, which should have been implemented decades ago.
100. The issue is not trivial. For one thing, the Commission was repeatedly told by a variety of witnesses, supplemented by documentary materials, that the refugees in the camps in the occupied territories were enduring hardships that exceeded those being experienced by the general Palestinian population, and that UNRWA officials felt unable to raise questions of a protective nature, regarding them as outside their humanitarian mandate and of a “political” character.
101. These protective concerns are directly associated with the distinctive pressures exerted by Israeli responses to the second intifada. The refugee camps are often prominent flashpoints in relations with the IDF and the settlements, prompting retaliatory “ security” measures, especially prolonged closures, including blockages of access roads. Refugees are trapped in these overcrowded camps, prevented from going to places of employment and often denied access to educational and medical facilities. The incidence of destitution resulting from the impact of the second intifada is significantly higher for refugees than for non-refugees, and is felt more keenly, as refugees lack land for subsistence agriculture or within which to move about. Our visits to several Palestinian refugee camps revealed to us the special sense of material and psychological hardship associated with the confinement and curfews of this period of intifada. Under such conditions, it is hardly surprising that much of the support for Palestinian militancy and armed struggle is generated within the refugee camps.
102. The second, wider question, which is associated with the right of return, concerns the future of refugees outside the territories as well as those within, and is mostly beyond the scope of the Commission’s central mandate. Its relevance arises from the degree to which Israelis insist that accepting such a right would be an act of suicide on the part of Israel and that and no State can be expected to destroy itself. Such an apocalyptic approach to the refugee issue obstructs overall moves towards a just peace.
103. In conclusion, the Palestinian refugees within the territories seem worse off than the Palestinian refugee diaspora in neighbouring countries. Further, the deterioration of their circumstances throughout the West Bank and Gaza has been accentuated by the heightened tensions and violence of recent months. These refugees require a variety of emergency protections that can only be provided by a concerted effort on an urgent basis at the international level. UNRWA, with its resources already strained and its operating conditions subject to interference, is not capable of providing the necessary protection.
X. CONCLUSIONS AND RECOMMENDATIONS
104. The commission of inquiry has been deeply mindful of its responsibility to exercise every care to be objective and impartial in gathering information and evaluating the evidence upon which it would base its conclusions and recommendations with the aim of calling attention to violations of human rights and international humanitarian law since 29 September 2000, and encouraging future compliance with international obligations to the extent possible.
105. In making its recommendations, the Commission from the outset emphasizes the need to understand the context and circumstances in which violations of human rights and breaches of international humanitarian law have occurred and the situation which has given rise to an ascending spiral of violence since the end of September 2000, resulting in a serious deterioration of the human rights situation.
106. The historical context is one of conflict and successive wars (over 50 years), prolonged occupation (over 30 years) and a protracted peace process (over 7 years). The peoples affected continue to suffer from a legacy of distrust, humiliation and frustration, only occasionally relieved by glimmerings of hope, which has all but disappeared of late.
107. The most worrying aspect of the recent escalation of violence leading to the loss of lives, disabling injuries caused to thousands, and the destruction of property and livelihoods is that the hopes and expectations created by the peace process are for the moment being smothered by mutual perceptions ascribing the worst of motives to each other, thus generating intense distrust and negative and destructive emotions.
108. It is important to emphasize that both the Palestinian people and the people of Israel have a yearning for peace and security, and that a precondition for achieving a just and durable peace is for every effort to be made on all sides to ease tensions, calm passions and promote a culture of peace. This could be helped if the process through which negotiations for peace are pursued is transparent, so that both Palestinian and Israeli public opinion can be built up in support of the process and of its eventual outcome. In this way, the mutual confidence upon which a durable peace must rest could be nurtured.
109. The Commission was encouraged by the extent to which its own assessments of the main issues addressed in the report substantially coincided with the most trustworthy third party views, including those of diplomatic representatives of the European Union and senior international civil servants with years of experience in the region. Thus, an informed and impartial consensus reinforces the conclusions and recommendations set forth here.
110. It is with an understanding of the tragic history of the peoples involved, and its psychological legacy, that our recommendations, aimed at discouraging the persistence of recent violations of human rights, are set out in three parts. The first part seeks to address the root causes that need to be resolutely addressed and resolved. The second part lists safeguards and procedures that need to be observed while negotiations aimed at a comprehensive, just and durable peace are pursued in good faith. The third part presents a series of measures which can be taken immediately to deter further violence and to end the destruction of lives, property and livelihoods. The fourth part is more ambitious, recommending steps for establishing a climate conducive to the emergence over time of a just and durable peace for the peoples of Israel and Palestine.
1. Conditions for a just and durable peace
111. A comprehensive, just and durable peace is to be sought through negotiations in good faith that would end the occupation and establish a dispensation that meets the legitimate expectations of the Palestinian people concerning the realization of their right to self-determination and the genuine security concerns of the people of Israel.
112. While noting that it is the Israeli position that occupation has in effect ended in much of the occupied territories following the agreements reached leading to the establishment of the Palestinian Authority, as well as the fact that the ultimate disposition of the settlements in those territories is a matter for negotiation between the parties, it needs to be recognized that, from the Palestinian perspective, so long as the settlements remain as a substantial presence in the occupied territories, and Israeli military forces are deployed to protect those settlements, no meaningful end to occupation can be said to have taken place.
2. Human rights and humanitarian law imperatives
113. The framework for a final peaceful settlement and the process through which it is pursued should be guided at all stages by respect for human rights and humanitarian law and the full application of international human rights standards set out in the Universal Declaration of Human Rights and in applicable human rights instruments, in particular those relating to women, children and refugees.
114. An adequate and effective international presence needs to be established to monitor and regularly report on compliance by all parties with human rights and humanitarian law standards in order to ensure full protection of the human rights of the people of the occupied territories. Such an international mechanism should be established immediately and constituted in such a manner as to reflect a sense of urgency about protecting the human rights of the Palestinian people.
115. Protection needs to be accorded to the people of the occupied territories in strict compliance with the 1949 Geneva Convention Relative to the Protection of Civilians in Time of War (Fourth Geneva Convention). The High Contracting Parties, individually and collectively, need urgently to take appropriate and effective action to respond to an emergency situation calling for measures to alleviate the daily suffering of the Palestinian people flowing from the severe breaches of the Fourth Geneva Convention. Article One of the Convention places a duty on the High Contracting Parties “to respect and ensure respect” of the provisions of the Convention “in all circumstances”. The Commission recalls that the Conference of the High Contracting Parties to the Fourth Geneva Convention, convened in Geneva on 15 July 1999, in its concluding statement reaffirmed the applicability of the Fourth Geneva Convention to the occupied Palestinian territory, including East Jerusalem, and reiterated the need for full respect for the provisions of the Convention in that Territory, and further recorded the following decision:
The Commissioners were accompanied throughout the mission by a Coordinator, a Security Adviser, three professional officers, an interpreter and two secretaries. Additional logistical support and interpretation assistance was provided by the local OHCHR offices, UNRWA and UNSCO. The Security Adviser was in the area continuously from 7 to 20 February.
Saturday, 10 February ( Gaza Strip)
2.45 p.m Arrival at Ben Gurion Airport, Tel Aviv
Drive to Gaza City, Gaza Beach Hotel
Palestinian Authority Headquarters
6-7 p.m. Meeting with the President of the Palestine National Authority, Mr. Yasser Arafat
Gaza Beach Hotel
Sunday, 11 February (Gaza Strip)
9.30-10.15 a.m. Palestinian National Security - General Abdel-Raziq El-Majayda
10.30-11.30 a.m. Ministry of Planning and International Cooperation - Dr. Ali Sha’ath
11.45 a.m.-12.45 p.m. Ministry of Justice - Mr. Freih Abu Middain (Minister of Justice)
1-2 p.m. Lunch with Minister of Justice
2.45-4 p.m. Consultations at OHCHR Gaza office
4.30-5.15 p.m. Ministry of Social Affairs - Mr. Mahmoud M. Matair (General Director)
5.30-6.15 p.m. The Palestinian Red Crescent Society - Dr. Fathi Arafat (Former Director)
6.30-8.45 p.m. Ministry of Health - Dr. Riyad El-Zanoun (Minister of Health)
Monday, 12 February (Gaza Strip)
Gaza Beach Hotel - Meetings with NGOs
9-9.45 a.m. Palestinian Center for Human Rights - Raji Sourani (Director)
9.45-10.30 a.m. Al-Mezan Center For Human Rights - Issam Younis (Director)
10.30-11.15 a.m. Gaza Community Mental Health Programme - Dr. Eyad El Sarraj (Director)
11.15 a.m.-12.30 p.m. Ministry of Housing - Abdel Rahman Hammad and Abde Kareen Abdeen
11.30 a.m.-12 noon Palestinian Agricultural Relief Committees - Abed El Kareem Ashour
( Professor Falk and Dr. Hossain)
12 noon-12.45 p.m. Palestinian Medical Relief Committees - Abdel Hadi Abu Khosa Union of Palestinian Medical Committees - Dr. Rabah Mohana
National Palestinian Society for Handicapped - Mohammed Zein El-Dein
(Professor Falk and Dr. Hossain)
United Nations Special Coordinator’s Office (UNSCO) Headquarters - Collective meeting with United Nations agencies
1.15-2 p.m. UNSCO - Francis Okello (Deputy Special Coordinator)
World Food Programme (WFP) - Mushtaq Qureshi
UNICEF - Bertrand Bainzel
World Health Organization (WHO) - Dr. Giuseppe Masala
UNESCO - Veronique Dauge
Office of the Coordinator for Humanitarian Affairs - Nick Harvey
UNSCO Headquarters – Meetings with Palestinian resource persons
3.15-3.50 p.m. Hayder Abdel-Shafi, Commissioner, Palestinian Independent Commission for Citizens’ Rights
3.55-4.30 p.m. Ziad Abu Ammer, member of the PLC, academic expert
4.35-5.10 p.m. Abdel-Rahman Abu El-Nasr (President of Bar Association)
6.30-7.30 p.m. International Committee of the Red Cross (ICRC)
Al-Deera Hotel Dinner
8.30 p.m. Hosted by Deputy South Africa Representative, Susan Heher
Also present: Peter Hansen, Francis Okello and Stephane Jacquier
Tuesday, 13 February (Gaza Strip and Jerusalem)
UNRWA (United Nations Relief and Works Agency) Headquarters, Gaza
9-10 a.m. Peter Hansen (Commissioner General), Karen Koning Abu Ziad (Deputy Commissioner-General), Mian Qadrud-Din (Chef de Cabinet), Lionel Brisson (Director of Operations) (list not exhaustive)
Visits to the sites affected by bombing
10.30 a.m. Stop at Netzarim Junction
11 a.m. Stop at Qarara area, at 640 metres from the Kusufim road, bulldozed land, demolition of houses and wells, uprooting of trees.
The Commission interviewed Jomad Mossallam Ali Someiri, head of a household of 23 members. Demolition began at night, during the period of Ramadan.
11.30 a.m. Khan Yunis Camp - visit to Tufah checkpoint where on the previous day a number of Palestinians had been injured during clashes with Israelis. The Commission was caught in an outburst of crossfire initiated by the Palestinian side, which continued while the Commission was in the area. During this time, a child of 14 years was shot in the stomach causing extensive liver damage. The x-ray and the bullet (live .556 round) were recovered by the Commission. One youth of 20 years was shot in the testes.
12 noon Visit to local UNRWA office - interviews
1 p.m. Visit to Khan Yunis hospital - briefing by the Director, Dr Agha.
Visit to patients recovering from exposure to tear gas
2 p.m. Stop on the other side of the Kusufim road in Qarara. Meeting with a family whose house was demolished on 22 November 2000 by the IDF. They only had 10 minutes’ notice and could not salvage any movable property. Three bulldozers worked for three days to clear the area. Altogether some 33 families were affected by demolition.
3.45 p.m. Lunch hosted by UNRWA at United Nations Reporting and Evacuation Centre, Gaza
5-6.45 p.m. Meeting with victims and their families, (organized by Ministry of Social Affairs, General Workers’ Union, Union of Medical Relief Committees and Gaza Community Mental Health Programme)
5-6.15 p.m. Collective meeting with the press
Suod Abu Ramadan (Journalists Association)
Fayed Abu Shammalah (journalist, BBC)
Rasmalli (Daily newsletter)
(Professors Dugard and Falk)
6.15-6.45 p.m. Meeting with Minister of Environment (Yousif Abu Safya) and colleagues
Departure for the West Bank - American Colony Hotel, Jerusalem
Wednesday, 14 February (Jerusalem)
UNDP office, Jerusalem
8-9 a.m. United Nations Development Programme (UNDP)
Timothy Rothermel, Special Representative
American Colony Hotel, Jerusalem
10 a.m.-12.30 p.m. Meeting with Israeli NGOs
B’Tselem - Yael Stein (Research Director)
The Alternative Information Center (AIC) - Sergio Yahni (Director)
The Association for Civil Rights in Israel - Risa Zoll (Attorney and International Relations)
Hamoked, Center for the Defence of the Individual - Dalia Kerstein (Director)
I’lam Center, Media Center for the Palestinian Society in Israel - Maria de Pina (Public Relations Coordinator) and Falastin Ismail (Director)
Mosawa Center for Arab Rights in Israel - Sana Hammond (Policy Advocate)
Public Committee against Torture in Israel - Hanna Friedman (Executive Director)
Arab Association for Human Rights - Mohammed Zeidan (Director)
Rabbis for Human Rights - Rabbi Jeremy Milgrom and Rabbi Arik Ascherman
Physicians for Human Rights - Dr. Hedva Radovanitz (Executive Director)
Ihijaha Union of Arab Community-Based Associations - Monica Terazi, Ameer Makhoul ADALAH, The Legal Center for Arab Minority Rights - Anna Massagee, Jamil Dakwar
12.30-2 p.m. Jonathan Krensky (journalist, Jerusalem Post)
2-3.30 p.m. Lunch break
3.30-4.30 p.m. Avishai Margalit (philosopher)
4.30-5.30 p.m. Mordechai Baron (historian)
5.30-6.30 p.m. Ruth Gavison (law professor)
Thursday, 15 February (Ramallah and Jerusalem)
Grand Park Hotel, Ramallah
10.15-11.15 a.m. H.E. Mr. Rafiq Al-Natsheh (Minister of Labour)
11.30 a.m.-12.15 p.m. Dr. Mustafa Al-Barghouti (political analyst)
12.15-1.15 p.m. Luncheon with Palestine Legislative Council (PLC)
Ahmed Qu’rar - PLC Speaker
Ghazi Hananya - PLC Speaker’s Deputy
Rawhi Fattouh - PLC Secretary
Aazmi Shun’aybi - PLC Member
Qadoura Fares - Chair of Human Rights Committee
Mahmoud Labadi - PLC Director General
1.30-2.15 p.m. Ghassan Faramand (Director, Law Institute, Birzeit University (BZU))
Abdul-Karim Barghouti, (Dean of Student Affairs, BZU)
Mudor Kassis, Chairperson, (Department of Philosophy and Cultural Studies and Coordinator of MA program-Democracy and Human Rights, BZU)
2.30-3 p.m. Jonathan Kuttab (Al-Quds University) and Mr. Raja Shehadeh (lawyer)
3-3.40 p.m. Eileen Kuttab (Institute of Women’s Studies, Birzeit University)
3.45-4.25 p.m. Charles Shamas (expert in international humanitarian law, Centre for Human Rights Enforcement)
4.45-5.25 p.m. Omar Dajani and Stifany Khouri (Negotiations Affairs Department)
5.30-6.10 p.m. Nader Saed (Development Studies Programme, BZU)
6.15-6.55 p.m. Ali-Jerbawi (Professor of Political Science, Birzeit University)
YMCA House, Jerusalem
9 p.m. Dinner with:
Amiram Goldblum (Settlement Watch, Peace Now Movement)
Mossi Raz (Peace Now Movement)
Eitan Felner (Director of B’tselem)
Friday, 16 February (Jerusalem and Ramallah)
Meetings at the American Colony Hotel - Jerusalem
8-9 a.m. Breakfast meeting with members of the European Union:
Nadim Karkutli and Sylvie Fouet (European Commission)
Lars Adam Rehof and Kim Vinthen (Office of the Representative of Denmark)
Emelie Träff and Elinor Hammarskjöld (Swedish Consulate General)
Aurélie Duhamel and Eric Tison (French Consulate General)
Michael Ohrmacht (German Rep. Office)
Eija Rotinen (Office of the Representative of Finland)
Petros Panayotopoulos (Greek Consulate General)
Leo D’Aes (Belgium Consulate General)
Manuel Salazar (Spanish Consul General)
Gianni Ghisi (Italian Consul General)
Birgitta Tazelaar (Office of the Representative of the Netherlands)
Isolde Moylan-McNally (Representative of Ireland)
9-9.45 a.m. Meeting with Christian and Muslim religious leaders
Adnan Husseini, Head of the Islamic Trust
Sheik Mohamed Hussain, Mufti of Al Aqsa Mosque
Bishop of the Armenian Orthodox Community
Father Theophilos, Greek Orthodox Patriarchate
Meeting at Orient House
10-10.45 a.m. Mr. Faisal Al Husseini (Orient House - Portfolio - PNA)
Grand Park Hotel, Ramallah - Meetings with Palestinian NGOs
12 noon-1 p.m. LAW (Palestinian Society for the Protection of Human Rights and the Environment) - Khader Shkirat (Director), Issa Shawki and Dianne Luping
1.15-2 p.m. Defense for Children International, Palestine - George Abu-Zolof (Director) with Adam Hanieh, Khaled Kuzmar, Simon Awad and Ibrahim Al Masri; Badil Resource Center - Ingrid Jaradat (Director)
2-2.30 p.m. Lunch break - Grand Park Hotel
2.30-5 p.m. Al-Haq - Mohamed Abu-Harthieh (Director)
General Union For Disabled Persons - Ziad Amro (Director)
Jerusalem Center for Human Rights, Jerusalem Legal Aid Center - Ihad Abu Ghosh (Director) and Haifa Alyssa
Democracy and Workers’ Rights Center - Mazen Barghouty (Director)
Al-Dameer for Political Prisoners - Khalida Jarrar (Director)
Women’s Center for Legal Aid and Counseling - Maha Abu Dayya (Director)
Women’s Studies Centre
Mandela Institute for Political Prisoners - Ahmed Al-Sayyad (Director)
During the afternoon, two meetings were held simultaneously, with one Commissioner attending one meeting and two Commissioners the second meeting.
Saturday, 17 February (Hebron/Bethlehem/Beit Jala/Jerusalem)
8-9 a.m. Travel to Hebron
9-11 a.m. Briefing by members of Temporary International Presence (TIP) in Hebron
Director of TIPH
Henrik Lunden (Senior Press and Information Officer)
Velérie Petignat Wright (Head Staff Director)
Angélique Eijpe (Legal Adviser)
11-11.30 a.m. Meeting with Mr. Mustafa Al Natsha, Mayor of Hebron
11.30 a.m.-12.15 p.m. Travel to Bethlehem
12.15-2 p.m. Visit to Aida Refugee Camp in Bethlehem
Aida Basic Girls’ School (UNRWA) and two shelled houses
Richard Cook (Director UNRWA Operations, West Bank)
Brett Lodge (Operations Officer, UNRWA)
Husni Shahwan (Area Officer for Hebron, UNRWA)
Yahia Daage (UNRWA teacher)
Makarem Awad (Relief and Social Service Department, UNRWA)
2-3.30 p.m. Return to Jerusalem, brief lunch
American Colony Hotel
3.30-4.15 p.m. Said Zedani (Director of Palestinian Independent Commission for Citizens’ Rights)
4.15-5.30 p.m. Collective meeting with journalists
Sam’man Khoury (Palestinian Media Center)
Nabeel Khateeb (Journalist, Director of Media Institute, Birzeit University) with the participation of Dr. Said Zedani
Nabhan Krisha (Palestinian Medical Center) and Akram Haney
(Editor-in-Chief, Al Ayyam Daily) were unable to participate as they were stopped at checkpoints.
6 p.m. Old City of Jerusalem
Consultations at hotel
Sunday, 18 February (Jerusalem and Tel Aviv)
9-10 a.m. Mr. Ilan Pappe (Historian)
Avia Hotel, Tel Aviv
12 noon-1 p.m. General (Ret.) Shlomo Gazit
1.30 p.m. Check-in at Ben Gurion Airport for 16:15 departure
POPULATION MAP OF THE WEST BANK AND GAZA STRIP
Source: PEACE NOW: The Settlement Watch Team, Israel
The boundaries shown do not imply official endorsement or acceptance by the United Nations