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64. Mr. Falk (Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967) said that he had faced special difficulties in discharging the functions of his mandate; the most salient involved the non-cooperation of the Government of Israel, to a degree greater than that faced by his predecessor. Israel had refused to fulfil its obligations as a Member State of the United Nations by preventing him from visiting, periodically and without interference, the West Bank, East Jerusalem and Gaza, ever since it had expelled him on his last attempt to enter the country in December 2008. In addition, it had adopted a similar posture of non-cooperation with respect to related United Nations undertakings, such as the Fact-Finding Mission on the Gaza Conflict and the panel appointed by the Human Rights Council to investigate the allegations surrounding the flotilla incident of 2010, resorting to defaming the messenger and the auspices instead of contesting and responding to the findings and recommendations of the reports.
65. The United Nations might also be faulted for its failure to respond more strongly to complaints arising from the Israeli pattern of non-cooperation and for its unwillingness to implement the recommendations in his prior reports and those of the Fact-Finding Mission. Such a failure encouraged the impression of Israeli impunity and of lack of will within the United Nations itself to take the obligations of international law seriously, or even to uphold those associated with its own Charter.
66. The mandate had also been hampered to some extent by the failure of the Human Rights Council to support his independence; pressure from the Palestinian Authority on that independence; and by widespread opposition to his proposal to reformulate the mandate to consider Palestinian violations of international human rights law in addition to Israeli ones. Since the realities of fact and law precluded any assertion of a false symmetry that apportioned responsibility to occupier and occupied equally, adjusting the mandate would take some account of charges of an impression of bias and unfairness embedded in the language but not in the works of the mandate. The Human Rights Council should be more vigilant in its protection of the independence of mandate holders so as to avoid setting an unfortunate precedent.
67. Turning to matters broached in his report, he noted that due to the very acute issues associated with the blockade of Gaza, there had been a tendency to overlook Israeli encroachments on the rights of the Palestinian people living in the West Bank and East Jerusalem. The cumulative effects of the settlements, the security wall and the extensive settler-only road network had been to establish a new political reality that converted the conditions of de jure occupation into de facto annexation. The extension of Jewish presence in East Jerusalem by way of unlawful settlements, house demolitions and revocations of Palestinian residence rights made it increasingly difficult to envisage a Palestinian capital in East Jerusalem, another widely assumed premise of the Quartet Road Map to Israeli-Palestinian peace and expectations associated with past and present intergovernmental negotiations. That assessment was important since it had been assumed that the occupation was temporary and reversible, in accordance with Security Council resolution 242 (1967), the political and ethical foundation for the assumption at the heart of international negotiations on the conflict that Palestinian rights of self-determination would be satisfied by the establishment of an independent and sovereign Palestinian State on currently occupied territories. However, if the conditions in the occupied Palestinian territory were irreversible, it became misleading and diversionary to continue adherence to the “two-State consensus” as a means of satisfying the Palestinian right to self-determination.
68. To the extent that the annexationist perception was accurate, it lent credibility to the assertion that the Israeli occupation had features of “settler colonialism” and therefore ran counter to the rights of all peoples to live free of alien rule, a position affirmed in both international human rights covenants and international customary law. That view was furthered by the dual and discriminatory legal structure for the occupied Palestinians and the unlawfully present settler population, the restrictions on Palestinian mobility, permit and residence manipulations, and roads on which Palestinians were disallowed. He emphasized the apartheid features not to suggest comparisons with apartheid South Africa but rather to call attention to the anti-apartheid norm embodied in various international legal instruments.
69. The flurry of international attention to Gaza in recent years, coupled with reports of economic growth in the West Bank, had led many to believe that material conditions in the latter territory were acceptable. However, the daily realities of the people living in it were not sufficiently noticed. Recent studies conducted by a British NGO indicated that the conditions of 40,000 Palestinians living in a particular area of the West Bank were worse than in Gaza, and that the state of human necessities including health clinics, food, water and shelter had reached a crisis point.
70. Regarding settler violence in the West Bank and East Jerusalem, he expressed disappointment at the failure of the international community to respond adequately and at that of the Israeli occupying forces to fulfil their obligations to protect Palestinians and their property and to apprehend Israeli perpetrators.
71. The situation in Gaza remained disturbing from the perspective of human rights and international law despite the welcome partial easing of the blockade on Gaza in the aftermath of the attack on the flotilla carrying humanitarian assistance to Gaza. The entry of basic necessities to Gaza remained at one third the level prior to the establishment of the blockade in June 2007. Furthermore, the ongoing Israeli prohibition of exports from Gaza had destroyed more than 90 per cent of Gazan entrepreneurial activity, on which the territory’s economy had relied. The blockade was a form of collective punishment, prohibited by the fourth Geneva Convention, and had been declared unlawful by the Human Rights Council mission tasked with investigating the flotilla incident on the reasoning that the suffering inflicted on civilians was disproportionate to any Israeli security justification. The mission had also found the attack on the flotilla to be contrary to international law and reliant on excessive force. The isolation of the population of Gaza for several years had exerted enormous psychological pressure that was contrary to the obligations of the occupying Power to ensure as much normalcy as possible for the occupied population.
72. After 43 years, it was time to acknowledge the distinctive and intolerable burdens of prolonged occupation on a civilian population. In his report, he urged a formal study of the human rights aspects of such occupation, paying particular attention to the plight of persons confined to refugee camps in the occupied territories and neighbouring countries, as well as to overall human rights. He also encouraged United Nations support for efforts to send humanitarian assistance directly to the people of Gaza in defiance of the persisting unlawful blockade, and for the boycott, divestment and sanctions campaign that sought to respond to the failure of Israel to uphold its obligations with respect to the Palestinian people. The campaign represented a recognition that neither Governments nor the United Nations were prepared or able to uphold Palestinian rights, whereas the Organization had, by contrast, endorsed the anti-apartheid campaign of the late 1980s. The United Nations must give greater tangible attention to the ordeal of the Palestinians, as it would be judged on whether it contributed to the realization of their right to self-determination.
73. Ms. Rasheed (Observer for Palestine) thanked the Special Rapporteur for his dedication and commitment to calling attention to the violations of the human rights of the Palestinian people, despite the challenge of being denied access to the occupied Palestinian territories. She urged him to adhere to his mandate in reporting to the Human Rights Council and the General Assembly.
74. Mr. Michelsen (Norway) agreed that the Palestinians’ full enjoyment of human rights depended on ending the occupation. At a time when the international community and key players were doing their utmost to bring the parties back to the negotiating table, development in and around East Jerusalem was a matter of grave concern. It was to an increasing degree severing ties between East Jerusalem and the remainder of the West Bank, and unless that situation was reversed, a negotiated, two-State solution might become impossible. Furthermore, while he welcomed Israel’s June decision to ease the blockade of Gaza, it had not gone far enough. Poverty rates remained high, and substantial numbers of Gazans were still relying on food assistance and other humanitarian services. Israel needed to take gradual steps to open the borders permanently and allow the economy to develop through the free movement of people and goods.
75. Ms. Simovich (Israel) said that it was unfortunate that, yet again, the Special Rapporteur had presented a flawed, one-sided report based on an imbalanced mandate. The Special Rapporteur himself had told the Human Rights Council that the credibility and effectiveness of his reports might be enhanced if the mandate were expanded to encompass inquiry into Palestinian violations of international humanitarian law. General Assembly resolution 60/251, which had established the Human Rights Council in 2006, required it to review all special procedure mandates within one year of its first session. The fact that, in 2010, it had reviewed all mandates except for the one in question was an indication of its politicized nature. The Council’s credibility and legitimacy hinged on the mandate of the Special Rapporteur, and Israel hoped that it would move quickly to correct a fundamental defect that continued to undermine the United Nations work in the field of human rights.
76. Israel had ratified the core human rights treaties. It had invited and received many special procedures mandate holders and was preparing for three more visits in early 2011. It had also appeared before and cooperated fully with the Human Rights Council Universal Periodic Review Committee. In short, it attached the utmost importance to its engagement with the international community on human rights issues. While it could not cooperate with a rapporteur whose mandate was inherently biased, it was committed to investigating any allegations of wrongdoing, simply because those were its values.
77. Mr. Zakaria (Malaysia) said that attacks on the person and reporting of the Special Rapporteur were unwarranted and reflected a desire to deflect attention from the human rights situation in the occupied territories and to avoid answering the allegations. Malaysia was steadfast in its support for an independent Palestinian State and would continue to back all international efforts to find a just, lasting, comprehensive and peaceful settlement. It agreed with the Special Rapporteur’s call for immediate implementation of the recommendations of the Goldstone report and with his recommendation that the Council should conduct a study of the legal, political, social, cultural and psychological impact of prolonged occupation. His delegation would be interested in hearing the Special Rapporteur elaborate on the idea of a non-violent “legitimacy war” and its practicality, given that it was certain to face some resistance in an intergovernmental setting.
78. Mr. Ja’afari (Syria) reminded the Committee that the issue of the occupied Palestinian territories was not new. Even the human rights mandate of the Special Rapporteur dated back to 1993, and the Palestinian issue itself had been on the United Nations agenda since its inception in 1945. General Assembly resolution 181 of 1947 had divided Palestine into two States, and unfortunately, only half of that resolution had been implemented. The Special Rapporteur was not the first United Nations official to be prevented from entering the occupied territories. Over the years, Israel had turned away dozens of fact-finding missions, dozens of investigation committees and dozens or even hundreds of special envoys.
79. His delegation fully supported the recommendations enumerated at the end of the report, but unlike the body of the report, they did not begin to convey the almost indescribable plight of the Palestinian people. It was the duty of the Committee to convey the report’s clear message to the highest levels of the United Nations: the Security Council, the Secretary-General and the President of the General Assembly. The Israeli authorities must be held responsible for their actions towards the Palestinian people.
80. Mr. Barton (United States of America) said that, as his country had indicated before, it regretted that the mandate inherited by the Special Rapporteur extended only to reporting on Israel. The human rights situation in Israel, the West Bank and Gaza should be examined in the same way as human rights situations in other countries. Even within that mandate, however, the Special Rapporteur’s report was one-sided. Beyond responding to specific violations, the Israeli Government had also made significant changes in its military operational guidelines to better protect civilians during conflict, including new procedures regarding the protection of civilians and the destruction of private property; the integration of humanitarian affairs officers into Israeli army battalions and new orders on the use of certain munitions. Those reforms, as well as Israel’s investigations, prosecutions and public reports, were evidence of ongoing credible and serious domestic inquiries. The United States welcomed the efforts of the Palestinian National Authority to establish an investigation into the allegations of human rights violations in the Palestinian territories, as well as its efforts to follow up on the recommendations of the Palestinian Independent Investigation Commission. In his report, the Special Rapporteur had sought to minimize the responsibility of Hamas in the lead-up to the Gaza conflict and had failed to address real and serious abuses of international law by Hamas in Gaza, such as its refusal to allow the International Red Cross personal access to Israeli Corporal Gilad Shalit. Hamas was a terrorist organization that was unwilling to examine its deliberate, repeated violations of international law and its abuses of the human rights of Israelis and Palestinians alike.
81. Mr. Falk (Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967) welcomed the support expressed by delegations for his mandate, which was beset by difficulties not faced by other mandates. The central issue that confronted the Committee was the degree to which responsibility would finally be taken for the situation in the occupied Palestinian territory. When would the United Nations regard its own Charter, international criminal law, or international human rights law as sufficiently significant to have the political courage to act on them, in the face of the suffering endured by the Palestinian people for decades? Furthermore, the matter of whether or not the Organization took its own reports seriously enough to act on them would be a test of its credibility. Its failure to answer that question in the affirmative led people to believe that what happened in United Nations meetings was a matter of mere rhetoric that did not get translated into effective behaviour and would not be unless the Governments took the findings seriously.
82. He had been accused of being one-sided, but he pointed out that it was the reality that was one-sided. He would welcome an opportunity for a debate about the substance of the report, as its accuracy was beyond serious question. The accuracy of particular details notwithstanding, the situation was so stark and so grim that it was not a matter of reasonable controversy, hence his disappointment at the refusal of the representative of the United States of America — his own country — to refuse to acknowledge its gravity and the fact that it was irreconcilable with international law. Specifically, the representative had mentioned that his Government had been critical of the expansion of settlements but not of settlements themselves, which were unlawful under the Geneva Conventions. Treating an unlawful situation as if it were lawful by accepting the accumulation of unlawful facts year after year was a perversion of law.