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At the time of writing, the ceasefire continues to hold, despite violations on both sides. It has already resulted in important improvements in the human rights situation in the Palestinian Territory; 500 prisoners have been released and there are reports that 400 more will soon be released. Forty-five (45) Palestinians deported to Gaza and overseas, following the siege of the Church of the Nativity in 2002, have been allowed to return to the West Bank. The targeted killings or assassinations of militants by IDF have been discontinued. IDF has announced that it will cease the punitive demolition of houses belonging to persons who have committed acts of violence against Israelis. An increased number of Palestinian workers and merchants have been allowed to enter Israel from the Gaza Strip. Some checkpoints in the West Bank have been lifted and there are plans to hand over the control of five cities to the Palestinian Authority.
Important as these changes or reforms may be, they fail to address the main violations of human rights and humanitarian law in the Occupied Palestinian Territory - settlements, the Wall, checkpoints and roadblocks, the imprisonment of Gaza and the continued incarceration of over 7,000 Palestinians.
There are over 100 settlements in the West Bank and Gaza, inhabited by almost 400,000 settlers, of whom some 180,000 live in the East Jerusalem area. Despite assurances from the Government of Israel that settlement growth has been frozen or limited to natural growth, the reality is that the settler population has grown more than the Israeli population itself. Unfortunately, Israel allows the interests of its settlers to determine its policies toward Palestine. For example, the Wall that Israel is presently building in Palestine is largely designed to protect settlements. It is becoming increasingly clear that settlements stand in the way of a two-State solution in the Middle East.
The Wall that Israel is building in the West Bank has been found to be contrary to international law by the International Court of Justice. Despite this, Israel is pressing ahead with the construction of the Wall, although it has recently decided to take less Palestinian land in the process. The Wall, according to Israel, is a security measure. As such it requires immediate attention since the present focus of attention, according to the Sharm el-Sheikh agreement, is security. There is a distinction between legitimate security measures and illegitimate security measures. The construction of the Wall, within Palestinian territory (as opposed to along the Green Line or within Israel), is an illegitimate security measure and should be discontinued immediately and not relegated to the realm of “permanent status talks”. Failure to do so will provide further evidence of Israel’s intention to annex Palestinian territory and jeopardize a fragile truce.
Several hundred checkpoints, roadblocks, ditches and other obstructions have made travel in the Palestinian Territory a nightmare for residents. Israel claims to have substantially reduced the number of checkpoints in recent times. But most permanent checkpoints manned by IDF remain in force; “flying checkpoints” (that is, temporary road checkpoints) continue; and most road blockages, in the form of concrete blocks, earth mounds or ditches, and closing by-roads remain. Moreover enforcement of road closures and obstructions by IDF remains as vigorous as ever. Indeed, the Special Rapporteur experienced a more rigorous enforcement of checkpoints than on previous visits.
The character of Jerusalem and Bethlehem has been substantially changed by the construction of the Wall and the lives of their residents substantially affected by travel restrictions, closures and property confiscations. Moreover, there is a threat to require East Jerusalemites to obtain special permits from the Israeli military authorities to travel to Ramallah. This will compel East Jerusalemites to choose between maintaining their ties with Ramallah and giving up their residence rights in Jerusalem and is part of a series of measures designed to entrench Israel’s illegal annexation of East Jerusalem.
At present there are over 7,000 Palestinian prisoners in Israeli jails, of whom over 850 are administrative detainees (that is, persons held without trial). In February 2005, 500 prisoners were released. However, these were mainly short-term prisoners or prisoners who had nearly completed their sentences. What is required of Israel is a bold step, of the kind taken by other transitional societies, which have released prisoners in order to further peace.
The Government of Israel’s determination to evacuate 8,500 settlers from Gaza and to dismantle its Gazan settlements is, understandably, the focus of international attention. It is a brave move on the part of Israel, and one that divides Israeli society. But it is the right thing to do and should be acknowledged as such by those concerned about human rights and humanitarian law in the Palestinian Territory. The dismantling of settlements in Gaza does not, however, mean that Gaza will be freed from Israeli control or that Israel will cease to be an occupying Power in terms of the Fourth Geneva Convention of 12 August 1949.
This is a time of hope for both Israel and Palestine. If the ceasefire is to hold it is essential that the Palestinian Authority exercise control over militant groups responsible for violence against IDF and settlers within Palestine and for suicide bombings within Israel. It is equally important that Israel keep its side of the bargain. However, it is not sufficient for Israel to only cease its military activity against Palestinians. It must address, with great expedition, the causes of Palestinian militancy, the issues that have given rise to terrorism against the Israeli people. Israel must address the release of prisoners, the abandonment of checkpoints, the dismantling of the Wall and the evacuation of all settlements in Palestinian territory. If it fails to do so, it will forfeit an opportunity for peace that may not again arise.
4. At the time of writing, the ceasefire continues to hold, despite violations on both sides. (On 25 February a suicide bombing in Tel Aviv killed 4 and wounded 50 persons. During the Special Rapporteur’s visit 4 Palestinians were killed by Israeli forces - one a 15-year-old boy killed for throwing stones at Israeli vehicles in protest against the Wall near Beituniya - and there were 11 military incursions resulting in 10 arrests.) The ceasefire has already resulted in important improvements in the human rights situation in the Palestinian Territory: 500 prisoners have been released and there are reports that 400 more will soon be released. Forty-five (45) Palestinians deported to Gaza and overseas, following the siege of the Church of the Nativity in 2002, have been allowed to return to the West Bank. The targeted killings or assassinations of militants by IDF, which to date has resulted in 469 deaths (181 targeted persons and 288 innocent bystanders), has been discontinued. IDF has announced that it will cease the punitive demolition of houses belonging to persons who have committed acts of violence against Israelis. An increased number of Palestinian workers and merchants have been allowed to enter Israel from the Gaza Strip. Some checkpoints in the West Bank have been lifted and there are plans to hand over the control of five cities to the Palestinian Authority (Ramallah, Jericho, Bethlehem, Tulkarem and Qalqiliya). In general it can be said that the level of military violence against the Palestinian people has been substan tially reduced, but not altogether eliminated.
5. Important as these changes or reforms may be, they fail to address the principal institutions and instruments that violate human rights and humanitarian law in the Occupied Palestinian Territory - settlements, the Wall checkpoints and roadblocks, the imprisonment of Gaza and the continued incarceration of over 7,000 Palestinians.
7. Despite assurances from the Government of Israel that settlement growth has been frozen or limited to natural growth, the reality is that the settler population has grown more than the Israeli population itself. In 2004, according to the Israeli Interior Ministry’s Population Registry, the number of settlers increased by 6 per cent as compared with a growth rate of less than 2 per cent in Israel itself. Existing settlements are being expanded and new settlements built, either with the express approval of the Government or with the tacit approval by the Government of caravan outposts that in due course become settlements. According to the group Peace Now, there are 99 settlement outposts of this kind in the West Bank.
8. As pointed out in my main report to the sixty-first session of the Commission (E/CN.4/2005/29) bypass roads have been built to link settlements to each other and settlements to Israel which are closed to Palestinian traffic. Palestinians have been compelled to use secondary roads in poor repair - or blocked by checkpoints or roadblocks. Aware of this problem, the Government of Israel has approached donors with the request that they fund the construction of new roads for the Palestinian population. This further illustrates the manner in which Israel allows the interests of its settler community to outweigh its manifest responsibility as occupying Power to provide basic facilities for the protected persons under its control.
9. Settlements are contrary to article 49, sixth paragraph, of the Fourth Geneva Convention of 12 August 1949 which prohibits the transfer of “parts of its own civilian population into the territory it occupies”. The illegality of settlements and of the construction of the Wall to protect settlements has been unanimously confirmed by the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (paras. 120 and 122; Judge Buergenthal’s dissenting opinion, para. 9). Settlements constitute an illegality in the removal of which the international community has a legal and moral interest. The dismantling of settlements in the West Bank cannot be left to “permanent status talks” between Israelis and Palestinians in the indefinite future. Like the settlements in Gaza, they must be dismantled.
11. Under terms of this decision, the Wall, once completed, will be 670 kilometres long, compared to 622 km of the previous route. The new route runs for 135 km on the Green Line compared to 48 km of the previous route. The new route of the Wall will follow the Green Line, or be close to the Green Line, in the locality of the Hebron Hills. It will penetrate more deeply into Palestinian territory further north to include settlements in the Gush Etzion bloc near Bethlehem, housing over 50,000 settlers. This decision will reduce the area of land seized from Palestinians to about 7 per cent, compared with the initially seized total of 12.7 per cent. A decision on the inclusion of the settlements of Ariel, Emmanuel and Ma’ale Adumim on the Israeli side of the Wall is “still pending completion of detailed staff work”. When this occurs, some 10 per cent of Palestinian land will be included within Israel. The Wall will enclose, on the Israeli side, 170,100 settlers (not including those in East Jerusalem) and 49,400 Palestinians. The determination to build the Wall around 56 settlements simply confirms the view of the Special Rapporteur expressed in his main report that the main purpose of the Wall is not security but the incorporation of settlements (para. 27).
12. There is no sign of halting either the construction of the Wall or the implementation of its regime to take account of the Sharm el-Sheikh accord. The Special Rapporteur saw bulldozers at work on the Wall in many places - including at Anata, in defiance of a court injunction to cease construction of the Wall. In some places construction has ceased (as near Salfit/Iskaka on the eastern end of the “Ariel finger”, visited by the Special Rapporteur) but these are temporary discontinuations occasioned by court injunctions. Moreover, the construction of major “terminals” along the Wall has commenced. Some (as at Beituniya) will be “commercial” for trucks while others will be for pedestrians and vehicles. (Apparently Israel has tried, unsuccessfully to date, to secure foreign funding for these terminals.) Access to the seam zone or closed zone (the area between the Wall and Green Line) is largely through agricultural gates, numbering 55 at present, of which only 21 are open to Palestinians. The military-administered regime in the seam zone continues to raise serious humanitarian concerns. According to Oxfam, “For farmers and residents of the closed zone, life is grinding to a halt. Many are becoming dependent on food aid, unable to farm, travel to work, or earn an income” (Oxfam, Briefing Paper 62: “Protecting civilians: a cornerstone of Middle East peace”, p. 19). A new, and unforeseen, consequence of the Wall has recently appeared: in Qalqiliya the Wall prevented rainwater from dispersing, causing heavy floods and severe damage to property adjacent to the Wall.
13. The Special Rapporteur visited Barta’a ash Sharqiya in the “closed zone”. Its 4,000 residents have main access through only one gate, Reikan, to the West Bank; the gate at Um Al Rihan is limited to schoolchildren residing near to the gate. (The Special Rapporteur was denied passage through the latter gate.) This has seriously curtailed access to health services, education, basic consumer goods, food and water in the West Bank. To add insult to injury, Barta’a ash Sharqiya’s only olive mill was destroyed in 2004 despite a court injunction and difficulties are placed in the way of marketing its olive harvest by restrictions placed on the transportation of olives into Israel or the West Bank.
14. Increasingly, the Wall is coming to be seen as the new border between Israel and Palestine instead of the Green Line. The fact that the course of the Wall follows the ruling of the Israeli High Court in the Beit Surik case is seen as giving legitimacy to the new “boundary”. In 2003 the Special Rapporteur warned that the Wall constituted “a visible and clear act of territorial annexation under the guise of security” (E/CN.4/2004/6, para. 6). At the time this warning was dismissed with scorn by many as an exaggeration. Today it is fast becoming accepted wisdom.
15. The construction of the Wall postdates the Oslo agreement, with its notion of leaving certain matters for “permanent status talks” at some later, unforeseeable date. The Wall, according to Israel, is a security measure. As such it requires immediate attention since the present focus of attention, according to the Sharm el-Sheikh agreement, is security. There is a distinction between legitimate security measures and illegitimate security measures. Israel has rightly halted targeted killings/assassinations and house demolitions as illegitimate security measures. But the construction of the Wall within Palestinian territory (as opposed to along the Green Line or within Israel) is likewise an illegitimate security measure and should be discontinued immediately and not relegated to the realm of “permanent status talks”. Failure to do so will provide further evidence of Israel’s intention to annex Palestinian territory and jeopardize a fragile truce.
18. Palestinian Jerusalemites have reason to fear that their properties will be confiscated and their freedom of movement radically impaired. In June 2004 the Government of Israel at the insistence of two ministers, decided to apply an absentee-property law in East Jerusalem enabling the State to confiscate property with no compensation for the owners on the grounds that the owner was not resident in Jerusalem. In February 2005 the Israeli Attorney-General cancelled this decision but Jerusalemites fear that it might be re-imposed.
19. More disturbing is the threat to require East Jerusalemites to obtain special permits from the Israeli military authorities to travel to Ramallah. Military Order 378 of 5 October 2000 requires Israeli citizens and permanent residents of Israel to get prior approval to visit cities in the Palestinian Territory. Given the historically strong social ties between East Jerusalem and Ramallah, the order had not previously been applied to Palestinian East Jerusalemites, thousands of whom have strong work, family and cultural links to the Palestinian community in Ramallah. In recent times, however, IDF has begun requiring permits for Palestinian East Jerusalemites who commute to Ramallah on a daily basis through the checkpoint of Qalandiya. Now there are reports that Military Order 378 will be applied after July 2005, when the construction of the Wall around Jerusalem is completed, to all East Jerusalemites wishing to travel to Ramallah. This law, which will compel East Jerusalemites to choose between maintaining their ties with Ramallah and giving up their residence rights in Jerusalem, is part of a series of measures designed to entrench Israel’s illegal annexation of East Jerusalem, and violates Security Council and General Assembly resolutions that have reiterated that administrative and legislative measures taken by Israel to alter the status of East Jerusalem are null and void.
22. The dismantling of settlements in Gaza does not, however, mean that Gaza will be freed from Israeli control or that Israel will cease to be an occupying Power in terms of the Fourth Geneva Convention. Gaza at present is a prison, with walls, fences and soldiers to control its external borders, and with prison guards in the form of IDF soldiers who impose severe restrictions on the internal movement of Palestinian civilians and police the conduct of Palestinians within Gaza. Israeli disengagement from Gaza will, hopefully, remove the mechanisms of internal coercive control but not end Gaza’s external imprisonment or remedy the humanitarian crisis caused by the closure of Gaza. Moreover, there is a very real fear that Israel will, before it leaves Gaza, clear a 300-metre wide strip along the Gazan-Egyptian border (the Philadephi route) which would result in the demolition of hundreds of houses in Rafah. In this situation it is imperative that the future status of Gaza be addressed more fully. The Special Rapporteur has previously expressed the opinion that Israel will remain an occupying Power for the purposes of the Fourth Geneva Convention - a view shared by the Government of Israel’s legal experts in a report published on 24 October 2004. Not all the provisions of this Convention will be applicable if Israel ceases to exercise internal control over the territory but many will remain applicable in the light of Israel’s external control and ability to exercise internal control should it so choose. It is essential therefore that Israel and the international community agree on the humanitarian restraints to which Israel will be subject in its control of Gaza after disengagement.