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REPORT ON THE TWENTY-FIFTH, TWENTY-SIXTH AND TWENTY-SEVENTH SESSIONS
(23 April-11 May 2001, 13-31 August 2001, 12-30 November 2001)
Consideration of reports submitted by States parties under
articles 16 and 17 of the Covenant
693. In its concluding observations on the initial report of Israel (para. 258), the Committee requested the State party “to provide additional information on the realization of economic, social and cultural rights in the occupied territories, in order to complete the State party’s initial report and thereby ensure full compliance with its reporting obligations”. The Committee requested that the additional information be submitted in time for its twenty-fourth session in November-December 2000.
694. In a note verbale dated 3 November 2000, the Permanent Mission of Israel to the United Nations Office at Geneva informed the Committee that the additional information would be included in the State party’s second periodic report, which the State party planned to submit no later than March 2001.
695. In a letter dated 1 December 2000 to the Permanent Representative of Israel, 19 the Chairperson of the Committee reminded the State party that the Committee had called for the additional information to be submitted in time for the twenty-fourth session and emphasized that some of the additional information concerning the occupied territories had been requested “in order to complete the State party’s initial report and thereby ensure full compliance with its reporting obligations”. Since the additional information formed part of the State party’s initial report, it should be submitted, and would be considered, separately from the State party’s second periodic report.
696. The Chairperson urged the State party to submit by 1 March 2001 up-to-date information on the realization of economic, social and cultural rights in the occupied territories, giving particular attention to the issues that were identified in the concluding observations of the Committee, as well as those mentioned in the letter of the Chairperson. The Committee scheduled its consideration of the additional information for the afternoon of 4 May 2001 and invited the State party to participate in the discussion.
697. The additional information was received on 20 April 2001, too late for it to be translated into the working languages of the Committee, as required by rule 24 of its rules of procedure, for the twenty-fifth session. Consequently, consideration of the additional information had to be postponed again to the Committee’s twenty-sixth session in August 2001. The State party was informed of the deferral in a letter dated 11 May 2001 (annex IV below).
698. At its twenty-fifth session, the Committee invoked rule 64 of its rules of procedure, which provides that the Committee may make suggestions and recommendations of a general nature on the basis of its consideration of reports submitted by States parties and reports submitted by specialized agencies, in order to assist the Economic and Social Council to take action in pursuance of articles 21 and 22 of the Covenant. Accordingly, the Chairperson addressed a letter dated 11 May 2001 (annex V below) to the President of the Council, enclosing a copy of a letter of the same date addressed to the State party citing alleged violations of the Covenant which had been brought to the Committee’s attention.
699. In a note verbale dated 14 August 2001, the Permanent Mission of Israel to the United Nations Office at Geneva informed the Committee that owing to complications concerning preparations for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance scheduled to take place in Durban, South Africa, the delegation of the State party would be unable to travel to Geneva to attend the Committee’s twenty-sixth session. The State party also informed the Committee that it had submitted its second periodic report and requested that the additional information previously submitted to the Committee be considered together with the second periodic report at a future session of the Committee.
700. At its 39th meeting, on 17 August 2001, a representative of the Government of Israel read a statement before the Committee (annex VI below), but declined to participate in the consideration of the additional information that was scheduled for that meeting. The Committee therefore decided to proceed with the consideration of the additional information in accordance with the decision taken at its twenty-fifth session.
701. The Committee noted that the additional information submitted by the State party did not include information on the realization of economic, social and cultural rights in the occupied territories, except in relation to East Jerusalem. In the absence of such information in relation to the other occupied territories, and in accordance with its procedure concerning reports that had not been submitted or were overdue, which the Committee had begun to apply at its ninth session, the Committee proceeded to discuss the situation in the occupied territories. This would complete the consideration of the State party’s initial report.
702. The Committee deplores the State party’s refusal to report on the occupied territories and the State party’s position that the Covenant does not apply to “areas that are not subject to its sovereign territory and jurisdiction”. The Committee’s views on this issue have already been firmly expressed in its concluding observations on the initial report of Israel. The Committee notes the statement of the State party in the additional information it submitted to the Committee (para. 5), that powers and responsibilities “continue to be exercised by Israel in the West Bank and the Gaza Strip” according to agreements reached with the Palestinians.
703. The Committee rejects the State party’s assertion regarding the distinction under international law between human rights and humanitarian law to support its argument that the Committee’s mandate “cannot relate to events in the Gaza Strip and West Bank”. The Committee reminds the State party that even during armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights as part of the minimum standards of human rights are guaranteed under customary international law and are also prescribed by international humanitarian law.
704. The Committee expresses its deep concern about the State party’s continuing gross violations of economic, social and cultural rights in the occupied territories, especially the severe measures adopted by the State party to restrict the movement of civilians between points within and outside the occupied territories, severing their access to food, water, health care, education and work. The Committee is particularly concerned that on frequent occasions, the State party’s closure policy has prevented civilians from reaching medical services and that emergency situations have ended at times in death at checkpoints. The Committee is alarmed over reports that the Israeli security forces have turned back supply missions of the International Committee of the Red Cross and the United Nations Relief and Works Agency for Palestine Refugees in the Near East attempting to deliver food, water and medical relief to affected areas.
705. The Committee continues to be concerned that the State party’s Law of Return denies indigenous Palestinian refugees the right to return to their homes and properties.
706. The Committee urges the State party to exercise its powers and responsibilities to put an end to the violence, the loss of human lives and the restrictions imposed on the movement of
civilians between points within and outside the occupied territories. In this regard, the Committee urges the State party to implement without delay its obligations under the Covenant and to desist from decisions and measures resulting in violations of the economic, social and cultural rights of the population living in the occupied territories. The Committee expresses its firm conviction that the implementation of the International Covenant on Economic, Social and Cultural Rights can play a vital role in procuring a lasting peace in Israel and Palestine.
707. The Committee reiterates its request that the State party provide information on the realization of economic, social and cultural rights in all occupied territories. This information should be submitted in time for it to be considered together with the State party’s second periodic report, which is tentatively schedule for the thirtieth session of the Committee in April-May 2003. The rest of the information already submitted will be considered together with the second periodic report.
18See Official Records of the Economic and Social Council, 1999, Supplement No. 2 (E/1999/22-E/C.12/1998/26), chap. IV, paras. 227-272.
19Ibid., 2000, Supplement No. 2 (E/2001/22-E/C.12/2000/21), annex X.
Letter dated 11 May 2001 from the Chairperson of the Committee on
Economic, Social and Cultural Rights addressed to the Permanent
Representative of Israel to the United Nations Office at Geneva
The Committee on Economic, Social and Cultural Rights acknowledges with appreciation the receipt of additional information a to Israel’s initial report b as requested by the Committee in its concluding observations.
However, the additional report was submitted beyond the date requested by the Committee and as a result the additional information could not be translated into the required working languages in time for its consideration on 4 May 2001 during the Committee’s twenty-fifth session.
You will recall that, in its concluding observations in relation to the initial report of Israel, the Committee had requested the submission of additional information in time for its session in November-December 2000 (twenty-fourth session). The Committee wishes to emphasize that some of the additional information, in particular where it concerns the occupied territories, was requested in order to complete the State party’s initial report and thereby ensure full compliance with its reporting obligations. The Committee therefore regrets that this current delay in submitting the additional information has resulted in another postponement of its consideration to the forthcoming twenty-sixth session of the Committee in August 2001.
The Committee reiterates the legal position shared by other treaty bodies that Israel’s international treaty obligations, as with the International Covenant on Economic, Social and Cultural Rights, apply to territories within its internationally recognized borders as well as other areas under its jurisdiction and effective control, including Jerusalem, the West Bank and the Gaza Strip. The State party’s argument that jurisdiction has been transferred to other parties is not valid from the perspective of the Covenant, particularly in view of Israel currently besieging all the Palestinian territories it occupied in 1967. In response to your letter of 19 April 2000, the Committee reaffirms the principle that political processes, domestic legislation, scarcity of resources or agreements with other parties do not absolve a State from its obligations to ensure the progressive realization of economic, social and cultural rights as provided for by the Covenant.
At its twenty-fifth session, the Committee had at its disposal a variety of recent reports, including those of the Human Rights Inquiry Commission established pursuant to Commission on Human Rights resolution S-5/1 of 19 October 2000 (E/CN.4/2001/121), of the Special Rapporteur of the Commission (E/CN.4/2001/30) and of the United Nations High Commissioner for Human Rights (E/CN.4/2001/114), as well as the letter of 21 February 2001 from the Permanent Representative of Israel to the United Nations Office at Geneva addressed to the High Commissioner (E/CN.4/2001/133). In light of these and other available reports, the Committee reiterates its deep concern over accounts that Israel’s recent actions in the occupied territories in violation of international human rights law and humanitarian law have resulted in gross violations of the economic, social and cultural rights of Palestinians. The Committee regrets that the ongoing conflict has resulted in the loss of Palestinian and Israeli lives. It is particularly concerned about the lack of protection for Palestinian civilians in the occupied territories and the renewed maltreatment of Palestinian Arab citizens of Israel. Among a number of issues, the Committee expresses grave concern about the following situations, which have serious implications for the enjoyment of economic, social and cultural rights:
The Committee welcomes the recent submission of additional information by Israel and appreciates this opportunity to address the situation of the Covenant within the territories of the State party. The Committee looks forward to a constructive dialogue with the delegation of the State party on 17 August 2001 when it considers the additional information already submitted.
Letter dated 11 May 2001 from the Chairperson of the
Committee on Economic, Social and Cultural Rights
to the President of the Economic and Social Council
2. Accordingly, the Committee wishes to draw the attention of the Council to its self-explanatory letter addressed to the State party (see annex IV above) as well as to the nature of the situation relative to the monitoring functions of the Committee with respect to implementation of the International Covenant on Economic, Social and Cultural Rights in “crisis situations”, which may require action by the Council under articles 21 and 22 of the Covenant:
(a) While discharging its monitoring and reporting functions, the Committee remains limited in the enforcement aspect required to maintain the integrity of the Covenant in such a situation;
(b) The “international measures likely to contribute to the effective progressive implementation of the Covenant” (art. 22), required to uphold the integrity of the Covenant in such a case, therefore fall within the purview of other bodies of the international system;
(c) In view of the Committee’s responsibility to uphold the Covenant and effectively monitor the implementation of the rights recognized therein, the Committee would be remiss if it did not underscore the need for protection measures for the population in the occupied territories. The Committee adds its recognition of these facts as a matter of course in its monitoring work and, with particular reference to the tragic loss of life and limb, the senseless destruction of property and the deliberate starving and economic strangulation of the Palestinian people by the occupying Power;
(d) The Committee recognizes with special appreciation the recommendations of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 of the Commission on Human Rights, the Human Rights Inquiry Commission, the mission report of the United Nations High Commissioner for Human Rights and reliable information from other sources and eyewitness accounts; and notes that these recommendations for effective measures for protection and upholding human rights, in particular economic, social and cultural rights, remain outstanding.
Statement by the Permanent Representative of Israel to
the United Nations Office at Geneva addressed to the
Committee on Economic, Social and Cultural Rights
(17 August 2001, twenty-sixth session)
Furthermore, in light of the substantial differences of opinion between Israel and the Committee in regard to its mandate and the applicability of the Covenant with regard to the territories, it would seem not only appropriate, but imperative, that all controversial aspects be discussed in a comprehensive and thorough manner, as part of the consideration of Israel’s second periodic report.
Further to Israel’s legal position concerning the Covenant’s applicability, as detailed in our letter of 3 May, I would like to take this opportunity to express Israel’s dismay at several questionable procedural practices of this Committee, to which Israel has been subjected over these past years. They indicate a pattern of applying exceptional procedural practices and double standards towards Israel in contrast to the human rights treaty regime foundation of due process and the rule of law.
As I have already mentioned, Israel has made a candid effort to report regularly, and to engage in a professional dialogue on human rights with this Committee. Israel has premised its participation in the United Nations human rights treaty system on the expectation shared by all State parties, that the application of the legal standards by the treaty monitoring bodies would be in accordance with the fundamental principles of transparency, objectivity, due process and equal treatment. This trust in the members of the monitoring bodies to conduct themselves as independent experts operating through these essential guidelines has been, in our view, violated by the Committee on Economic, Social and Cultural Rights. I would like to highlight some recent actions taken by the Committee concerning Israel, which are reflective of this pattern of conduct.
As you may recall, when Israel’s initial report was considered in 1998, the Committee in its concluding observations, requested additional information to be submitted prior to the submission of the next report. Furthermore, in its letter of 1 December 2000, a the Committee introduced new issues relating to the current violence in the region, which clearly could not possibly fall within the discussion of Israel’s initial report and the additional information requested with respect to the initial report. This letter went far beyond scheduling timetables for the submission and consideration of additional information. It specifically detailed highly criticized and controversial “reports” in the form of statements of fact, without there having been any dialogue scheduled with Israel for that session. Most disturbingly, the new issues introduced in the letter, constituted a one-sided political statement, demonstrating prejudice on the part of the Committee.
It also set two deadlines, one for the receipt of the additional information by 1 March 2001 and the other for the submission of the second periodic report by 31 March 2001, specifically insisting that the information must be submitted and considered on separate occasions. Despite the fact that Israel indicated by a note verbale in early November 2000, that it would respond to the request for information in its second periodic report, expected to be available in early 2001, the Committee singled-out one of the issues in question, for consideration in May 2001. This is an obvious and blatant attempt to keep Israel regularly and frequently on its agenda. In addition, the Committee has heard oral submissions from non-governmental organizations concerning Israel, in the absence of a report from Israel having been scheduled for consideration. This is an unprecedented practice, inconsistent with the essence of the treaty monitoring system.
In December 1999 the Committee adopted “Follow-up procedures in relation to the consideration of reports”, which delineated a step-by-step approach to be taken in the case of requests for additional information. These procedures in their application to Israel, were applied prior to their submission to the Economic and Social Council, for its consideration, quite contrary to the Committee’s expected relationship with the Council according to its resolution 1985/17 of 28 May 1985.
The Committee’s exceptional focus on Israel is all the more unjustified given the Committee’s massive backlog of reports, and the numerous States which have failed to report at all. It certainly stood in marked contrast to the Committee’s follow-up action with respect to the only similar situation at the time.
Ms. Anne Bayefsky recently submitted a report to the United Nations High Commissioner for Human Rights regarding the treaty system, which features an exhaustive examination of the treaty bodies procedures. Ms. Bayefsky pointed out that, in practice, this so-called “follow-up” procedure has been used by the Committee simply as a means to place Israel on the agenda at any time it sees fit ( The UN Human Rights Treaty System: Universality at the Crossroads , sect. 24, p. 79).
The Committee’s pattern of conduct towards Israel stands in direct contrast to the principles of the treaty system which are founded on the expectation of a regular and equal consideration of every State party’s compliance with the treaty. One can only question the true motivation behind the Committee’s conduct towards Israel in this regard.
At its twenty-fifth session on 23 April 2001, while the Committee heard numerous oral submissions from non-governmental organizations on Israel’s compliance with the Covenant, it did not consider the additional information which had been submitted by Israel on 20 April 2001 in response to the Committee’s request. Instead, it then set a new date for consideration of the additional information, today, on 17 August, on the grounds that there was insufficient time for translation of Israel’s additional information, although it was not deemed problematic to hear non-governmental organization reports on the same subject at the April session. In other words, the Committee heard oral submissions from non-governmental organizations about the State party, changed the date of the consideration of the State party’s additional information and the discussion with the State party to the following session, and then reached substantive conclusions on the very subject about which the additional information had been requested.
Furthermore, in another historic first, having heard only from non-governmental organizations and not from the State party, the Committee’s recommendations called for the substantive involvement in July 2001 of the Economic and Social Council in the matter and its participation in the Committee’s condemnation of Israel, despite the fact that dialogue with the State party had been scheduled for 17 August 2001.
By such actions, the Committee on Economic, Social and Cultural Rights is prejudicing its prestige in the human rights treaty system. It has singled out one State for criticism without reviewing its reports or information, without engaging in a genuine constructive dialogue with it, and without following its own rules of procedure. This conduct, to which we are exposed in the political United Nations forums, such as the General Assembly, is completely unacceptable when exercised by a Committee whose mandate is human rights, and which not only claims to be a professional monitoring body, but is also explicitly required to act as such, by virtue of its very own mandate.
Economic and Social Council resolution 1985/17 explicitly requires that the members of the Committee be appointed as independent experts “with recognized competence in the field of human rights, serving in their personal capacity”. However, the Committee’s biased practices and its blatant disregard for the fundamental principles of due process cast serious doubts as to its alleged objectivity and capacity to engage in a constructive dialogue. Its discriminatory treatment of Israel, lack of bona fides and the use of double-standards stand in marked contrast to its mandate. The failure of this human rights treaty monitoring body to apply the Covenant within its mandate, in an apolitical and even-handed process, presents a direct challenge to the integrity of the treaty system.
In addition to the serious procedural reservations I have emphasized, I would like to conclude by reiterating Israel’s reservation with regard to the Committee’s handling of events in the West Bank and the Gaza Strip. It has consistently been Israel’s position that consideration of questions of human rights in these territories is not within the mandate of the Committee, as such territories fall within the context of armed conflict and international humanitarian law. Furthermore, it is completely inconsistent with the changing reality on the ground, where, pursuant to the Israeli-Palestinian agreements, the overwhelming majority of powers and responsibilities in all civil spheres, including economic, social and cultural rights, as well as a variety of security issues, have been transferred to the Palestinians. Israel, thus, has neither the responsibility, nor the capability for reporting on human rights in these areas.
It is Israel’s hope that the Committee engage both in an introspective reflection and in a constructive dialogue on all matters raised in this statement, in the hope that a discussion and consideration of Israel’s second periodic report will indeed be apolitical, productive and forward-looking.
In view of what I have said, Israel does not intend to participate in the present session.
aLetter from the Chairperson of the Committee addressed to the Permanent Representative of Israel to the United Nations Office at Geneva (Official Records of the Economic and Social Council, 2001, Supplement No. 2 (E/2001/22-E/C.12/2000/21), annex X).