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The West Bank has also experienced serious human rights violations resulting from frequent military incursions; the construction of the Wall; house demolitions and checkpoints. Over 500 checkpoints and roadblocks obstruct freedom of movement within the OPT. The Wall being built in East Jerusalem is an instrument of social engineering designed to achieve the Judaization of Jerusalem by reducing the number of Palestinians in the city.
The construction of settlements continues. Today there are some 460,000 settlers in the West Bank and East Jerusalem. A study by an Israeli non-governmental organization (NGO) has shown that nearly 40 per cent of the land occupied by settlements in the West Bank is privately owned by Palestinians. It has become abundantly clear that the Wall and checkpoints are principally aimed at advancing the safety, convenience and comfort of settlers.
There are some 9,000 Palestinian prisoners in Israeli jails. There are serious complaints about the treatment, trial and imprisonment of prisoners.
Since 2000, over 500 persons have been killed in targeted assassinations, including a substantial number of innocent civilians. In December 2006 the Israeli High Court failed to find that such assassinations were unlawful but held that they might only be carried out as a last resort and within the bounds of proportionality.
Israeli law and practice makes it impossible for thousands of Palestinian families to live together. A new practice of refusing visas to foreign residents in the OPT has aggravated this situation.
Discrimination against Palestinians occurs in many fields. Moreover, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid appears to be violated by many practices, particularly those denying freedom of movement to Palestinians.
There is a humanitarian crisis in the OPT resulting from the withholding of funds owed to the Palestinian Authority by the Government of Israel (estimated at about US$ 50 to 60 million per month) and from the economic isolation of the territory by the United States, the European Union (EU) and other States in response to the election of the Hamas Government. The Temporary International Mechanism set up by the EU to provide relief in certain sectors has gone some way towards reducing the crisis, but over 70 per cent of the Palestinian people live below the official poverty line. Health care and education have suffered as a result of a strike of workers in these sectors against the Palestinian Authority and the international community for the non-payment of salaries. In effect Israel and sections of the international community have imposed collective punishment on the Palestinian people.
Persons responsible for committing war crimes by the firing of shells and rockets into civilian areas without any apparent military advantage should be apprehended or prosecuted. This applies to Palestinians who fire Qassam rockets into Israel; and more so to members of the IDF who have committed such crimes on a much greater scale. While individual criminal accountability is important, the responsibility of the State of Israel for the violation of peremptory norms of international law in its actions against the Palestinian people should not be overlooked.
The international community has identified three regimes as inimical to human rights - colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT. At the same time elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.
The Occupied Palestinian Territory is the only instance of a developing country that is denied the right of self-determination and oppressed by a Western-affiliated State. The apparent failure of Western States to take steps to bring such a situation to an end places the future of the international protection of human rights in jeopardy as developing nations begin to question the commitment of Western States to human rights.
* The report was submitted after the deadline so as to include the most recent developments.
V. TARGETED ASSASSINATIONS
60. Today there are over 460,000 Israeli settlers in the West Bank and East Jerusalem (para. 32 above). Moreover, Israel has appropriated agricultural land and water resources in the West Bank for its own use. This aspect of Israel’s exploitation of the West Bank appears to be a form of colonialism of the kind declared to be a denial of fundamental human rights and contrary to the Charter of the United Nations as recalled in the General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (Resolution 1514 XV).
61. Israel’s practices and policies in the OPT are frequently likened to those of apartheid South Africa (see, for example, Jimmy Carter, Palestine: Peace, Not Apartheid (2006)). On the face of it, occupation and apartheid are two very different regimes. Occupation is not intended to be a long-term oppressive regime but an interim measure that maintains law and order in a territory following an armed conflict and pending a peace settlement. Apartheid is a system of institutionalized racial discrimination that the white minority in South Africa employed to maintain power over the black majority. It was characterized by the denial of political rights to blacks, the fragmentation of the country into white areas and black areas (called Bantustans) and by the imposition on blacks of restrictive measures designed to achieve white superiority, racial separation and white security. Freedom of movement was restricted by the “pass system” which sought to restrict the entry of blacks into the cities. Apartheid was enforced by a brutal security apparatus in which torture played a significant role. Although the two regimes are different, Israel’s laws and practices in the OPT certainly resemble aspects of apartheid, as shown in paragraphs 49-50 above, and probably fall within the scope of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
62. Colonialism and apartheid are contrary to international law. Occupation is a lawful regime, tolerated by the international community but not approved. Indeed over the past three decades it has, in the words of the Israeli scholar Eyal Benvenisti, “acquired a pejorative connotation”.13 What are the legal consequences of a regime of occupation that has continued for nearly 40 years? Clearly none of the obligations imposed on the occupying Power are reduced as a result of such a prolonged occupation.14 But what are the legal consequences when such a regime has acquired some of the characteristics of colonialism and apartheid? Does it continue to be a lawful regime? Or does it cease to be a lawful regime, particularly in respect of “measures aimed at the occupants’ own interests”?15 And if this is the position, what are the legal consequences for the occupied people, the occupying Power and third States? Should questions of this kind not be addressed to the International Court of Justice for a further advisory opinion? It is true that the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has not had the desired effect of compelling the United Nations to take firmer action against the construction of the Wall. On the other hand, it must be remembered that the United Nations requested four advisory opinions from the International Court of Justice to guide it in its approach to South Africa’s occupation of South-West Africa/Namibia. In these circumstances a request for another advisory opinion warrants serious consideration.
1 See B’Tselem, Act of Vengeance: Israel’s Bombing of the Gaza Power Plant and its Efects (September 2006).
2Head of the Azzun Municipal Council, Abed Alatif Hassin and others v. State of Israel and the Military Commander of the West Bank (HCJ 2733/05).
3OCHA Special Focus, November 2006.
5Breaking the Law in the West Bank - One Violation Leads to Another: Israeli Settlement Building on Private Palestinian Property.
6Rashad Morar v. The IDF Commander for Judea and Samaria (HCJ 9593/04).
7See Yesh Din, A Semblance of Law. Law Enforcement Upon Israeli Civilians in the West Bank (June 2006).
8Antonio Marchesi, Getting Around the International Prohibition of Torture: Responsibilities of the Israeli Government and the Palestinian National Authority (December 2006), p. 27.
9B’Tselem, Barred from Contact: Violation of the Right to Visit Palestinians held in Israeli Prisons (September 2006).
10B’Tselem and Ha Moked, Perpetual Limbo: Israel’s Freeze on Unification of Palestinian Families in the Occupied Territories (July 2006).
11Badil, Displaced by the Wall (September 2006).
12Draft articles on the Responsibility of States for Intentionally Wrongful Acts (arts. 40 and 48 (2) (b)), Oficial Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10).
13The International Law of Occupation (1993), p. 212.
14See A. Roberts “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967” (1990) 84, American Journal of International Law 44, 55-57, 95.
15Benvenisti, op. cit (note 13), p. 216.