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The situation in the West Bank has also deteriorated substantially.
The Wall under construction in the Palestinian territory is no longer justified solely as a security measure by Israel but is now portrayed by the new Government of Israel as a political measure designed to annex 10 per cent of Palestinian land situated between the Green Line and the Wall, where some 76 per cent of the Israeli settler population lives. When the Wall is completed, an estimated 60,500 West Bank Palestinians living in 42 villages and towns will be enclosed in the closed zone between the Wall and the Green Line. The 500,000 Palestinians living near the Wall require permits to cross it, and it is estimated that 40 per cent of the applications for permits are refused.
Israel continues its policy of the de-Palestinization of Jerusalem. The Wall is constructed in such a way as to place about a quarter of East Jerusalem’s Palestinian population of 230,000 in the West Bank. Such persons will in future require permits to access their employment and to visit friends, hospitals and religious sites in Jerusalem.
Settlements continue to expand, in violation of the Fourth Geneva Convention. The settler population in the West Bank and East Jerusalem now numbers over 440,000.
In south Hebron the low wall under construction will make it difficult for Palestinian communities located between the low wall and the Green Line to access their lands, schools and clinics.
Although Israel has abandoned earlier plans to construct the Wall along the spine of the West Bank and to formally incorporate the Jordan Valley into Israel, it has embarked on a plan to extend control over this area by means of the restriction of movement of Palestinians, the destruction of houses and the establishment of Jewish settlements.
The number of checkpoints has increased, from 376 in August 2005 to over 500. Permits for travel between different parts of the West Bank are granted sparingly and require Palestinians to subject themselves to arbitrary bureaucratic procedures. Nablus and Jenin, in particular, have been seriously affected by checkpoints, and are today in effect imprisoned cities. It seems that the main purpose of many checkpoints is to make Palestinians constantly aware of Israeli control of their lives and to humiliate them in the process. Since the war in Lebanon there has been a further tightening of checkpoints.
The demolition of houses remains a regular feature of the occupation. It has now become the practice to destroy houses in the course of effecting arrests in policing operations. The destruction of houses for reasons other than military necessity is prohibited by international humanitarian law.
The family life of Palestinians is undermined by a number of Israeli laws and practices. Recently, the Israeli High Court upheld a law which prohibits Israeli Arabs who marry Palestinians from living together with them in Israel. The Wall in Jerusalem has also resulted in the separation of families.
More than 10,000 Palestinians, including women and children, are imprisoned in Israeli jails.
The occupation of the Palestinian Territory is responsible for most human rights violations. This occupation is implemented in an unnecessarily harsh fashion by the Israeli authorities.
The humanitarian situation in both the West Bank and Gaza is appalling. At least 4 out of 10 Palestinians live under the official poverty line of less than US$ 2.10 a day and unemployment stands at least 40 per cent. To aggravate matters, the public sector workforce, which accounts for 23 per cent of total employment in the Palestinian territory, is employed but unpaid as a result of the withholding of funds owed to the Palestinian Authority by the Government of Israel, amounting to $50-$60 million per month. In addition, the United States and the European Union have cut off funds to the Palestinian Authority on the ground that Hamas, the party elected to Government in January 2006, is listed under their laws as a terrorist organization. Non-governmental organizations working with the Palestinian Authority have likewise been affected by restrictions on funding.
In effect, the Palestinian people have been subjected to economic sanctions — the first time an occupied people have been so treated. This continues, despite the fact that Israel is itself in violation of numerous Security Council and General Assembly resolutions and has failed to implement the advisory opinion of the International Court of Justice of 9 July 2004.
The Quartet itself has no regard for the advisory opinion and fails even to refer to it in its public utterances. This has substantially undermined the reputation of the United Nations in the Occupied Palestinian Territory. Although Palestinians have a high regard for dedicated and committed United Nations workers on the ground, they have serious misgivings about the role of the United Nations in New York and Geneva.
1. I visited the Occupied Palestinian Territory (OPT) and Israel from 9 to 17 June 2006 in order to compile information for this report. Shortly after I left the Territory a serious crisis erupted in Gaza following the capture by Palestinian militants of an Israeli soldier, Corporal Gilad Shalit. This new development is described and examined in the context of secondary sources — press reports, reports of non-governmental organizations (NGOs), United Nations publications, etc.
2. During my mission I visited Jerusalem, Gaza, villages in the vicinity of Jerusalem which have been seriously affected by the construction of the Wall, Ramallah, Hebron and communities in the South Hebron Hills, Bethlehem and the Wall near Rachel’s Tomb, the village of Wallaja, where house demolitions have occurred, the Jordan Valley, including Jericho and communities whose human rights are affected by Israeli policies and practices, Nablus, including the Balata refugee camp, the village of Jayyous on the perimeter of the Wall and farming communities living close to the Wall, and checkpoints around the city of Nablus and roads in its vicinity.
3. During the visit I spoke with a wide range of persons, both Palestinian and Israeli, about violations of human rights and international humanitarian law. I delivered a lecture at the Hebrew University in Jerusalem sponsored by the Minerva Centre for Human Rights and the International Committee of the Red Cross (ICRC). The lecture, which was attended by more than 100 persons, examined controversial questions of humanitarian law relating to the conflict in OPT. Unfortunately, I had no contact with Israeli officials as the Government of Israel does not recognize my mandate. The Government was, however, aware of my visit and placed no obstacles in the way of the visit.
4. The eruption of violence in Gaza following the capture of Corporal Shalit and the arrest of members of the Palestinian Legislative Council and the Palestinian Authority (see para. 11 below) was followed by Israel’s invasion of Lebanon and large-scale violence in Lebanon, Israel and Gaza. It is not the purpose of this report to comment on events in Lebanon and along Israel’s northern borders, as that falls outside my mandate. It will, however, fully examine the situation in Gaza. It should be mentioned that the events in Lebanon have to a large extent overshadowed violence in Gaza and along its borders.
5. In the present report “the Wall” is used instead of “barrier” or “fence”. This term was carefully and deliberately used by the International Court of Justice in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2006. I see no reason to depart from this language.
II. The question of occupation
6. Before turning to the substance of my report, there is a preliminary matter of concern which I wish to address. This is the question of occupation. The Government of Israel prefers to avoid acknowledging the fact that OPT, that is both the West Bank and Gaza, including East Jerusalem, is occupied territory. Instead, it prefers to speak about the “disputed territories” and to assert that the withdrawal of settlers and the Israel Defense Forces (IDF) from Gaza in August 2005 has terminated the occupation of Gaza. This is a misconception of both law and fact. The International Court of Justice, the Security Council and the High Court of Israel itself have all asserted that OPT is and remains occupied territory and that, as such, it is governed by a special legal regime. According to this regime, Israel is bound to comply with both international humanitarian law and human rights law in its treatment of Palestinians. It is, admittedly, an unusual occupation in that it has continued for almost four decades. The protracted nature of the occupation does not, however, reduce the responsibility of the occupying Power. On the contrary, it increases its responsibility. The length of the occupation has led some to characterize the situation as one of colonialism or apartheid. A lthough Israel’s conduct at times resembles that of a colonial Power or an apartheid regime, it is more correct to classify Israel as an occupying Power in OPT and to judge its actions in accordance with the international law rules applicable to occupation.
7. In August 2005 Israel withdrew its settlers and armed forces from Gaza. Statements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate. Even before the commencement of “Operation Summer Rains”, following the capture of Corporal Shalit, Gaza remained under the effective control of Israel. This control was manifested in a number of ways. Israel retained control of Gaza’s air space, sea space and external borders. Although a special arrangement was made for the opening of the Rafah border crossing to Egypt, to be monitored by European Union personnel, all other crossings remained largely closed. The closure of the Karni crossing for goods for substantial periods had particularly serious consequences for Gaza as it resulted in a denial of access to foodstuffs, medicines and fuel. A proposed scheme which would have allowed Gazans to visit family in the West Bank by means of bus convoys was never implemented. In effect, following Israel’s withdrawal Gaza became a sealed off, imprisoned society. The effectiveness of Israel’s control was further demonstrated by sonic booms caused by its overflying aircraft, designed to terrorize the population of Gaza, regular shelling of homes and fields along the border and targeted assassinations of militants, which, as in the past, were carried out with little regard for innocent civilian bystanders. The actions of IDF in respect of Gaza have clearly demonstrated that modern technology allows an occupying Power to effectively control a territory even without a military presence.
8. The question whether Gaza remains an occupied territory is now of academic interest only. In the course of the cynically named “Operation Summer Rains” that commenced on 25 June, the IDF has not only asserted its control in Gaza by means of heavy shelling, but has also done so by means of a military presence.
9. On 25 June 2006 a group of Palestinian militants attacked a military base near the Israeli Egyptian border. In retreating, they took Corporal Gilad Shalit with them as captive. They demanded the release of the women and children in Israeli jails in return for his release. This act, together with the continued Qassam rocket fire into Israel, unleashed a savage response from the Government of Israel. In the first place, it arrested 8 Hamas Cabinet ministers and 26 members of the Palestinian Legislative Council in Ramallah. At the time of writing this report, most of them remained in detention. While Israel claims that they are being held because of their support for terrorist activities, it is difficult to resist the notion that they are being held as hostages, in violation of article 34 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).
10. Israel’s assault on and siege of Gaza in the course of “Operation Summer Rains” has taken many forms, described in the following paragraphs.
A. Bombardment of public utilities
11. On 28 June 2006 the Israeli Air Force (IAF) destroyed all six transformers of the only domestic power plant in the Gaza Strip. This plant supplied 43 per cent of Gaza’s daily electricity. The rest is provided by the Israel Electrical Corporation. Approximately 700,000 Gazans, out of a population of 1.4 million, initially were without electricity. Currently, the Gaza Electrical Distribution Company (GEDCO) is load-sharing the remaining electricity supply from Israel, but the supply of power to households across the Gaza Strip is intermittent. As most of Gaza’s water wells are powered through the national electrical grid, which has been destroyed, generators are being used to power wells, and the daily water supply to Gazan households has been reduced. The present situation relating to the reduction of power is likely to continue for at least another year. Israel’s military operations have also destroyed the main water pipelines and sewerage networks. In addition, the frequent closure of the Nahal Oz pipeline, the only pipeline bringing fuel into the Gaza Strip, has affected the use of backup generators to power regular water supplies. Other power transformers have also been bombed.
12. The substantial reduction of the electricity and fuel supply, together with the disruption of water supplies, has impacted severely on the daily life of Palestinians who are without light at night and electricity to do their cooking. The sewers threaten to overflow. Hospitals have been radically affected and are forced to use generators to power life-saving equipment because of power outages.
B. Bombardment of public buildings and facilities
13. Israeli war planes have deliberately targeted public buildings in Gaza. The buildings housing the Ministries of the Interior, Foreign Affairs and the National Economy and the Office of the Prime Minister have all been destroyed. Such action serves no security purpose and can only be construed as an attempt to undermine the institutions of Government. Educational institutions have also been destroyed. Six bridges linking Gaza City with the central Gaza Strip have been destroyed, as have a number of roads. On 28 June IDF occupied Gaza International Airport and destroyed large parts of it.
C. Closure of borders
14. Since 25 June a number of schools have been substantially damaged in the military operations and difficulties are being experienced in repairing these schools in time for the start of the new school year.
15. Although the Rafah crossing is not directly controlled by Israel, IDF prevented European observers responsible for staffing the crossing from reaching it. It has, therefore, been closed since 25 June, only opening for brief periods. The closure of the Rafah crossing for three weeks in July 2006 left more than 3,000 Palestinians stranded on the Egyptian side of the border in harsh conditions, including some 578 people deemed to be “urgent humanitarian cases”, who had been referred for medical treatment abroad. Eight Palestinians died as a result of their being denied proper medical treatment, shelter and water at the crossing.
16. The closure of the Rafah crossing has also had serious consequences for Palestinians on the Gaza side, particularly those living abroad who were in Gaza for family visits.
17. The Karni commercial crossing has been intermittently closed. The import of some food and medical supplies to Gaza has been permitted but the export of goods has been severely curtailed.
18. Israeli naval vessels have prevented Palestinian fishing along the coast, with the result that fish is no longer available in local markets.
19. Since 25 June some 260 Palestinians (at least half of whom were civilians) have been killed, including 58 children. Some 800 people have been seriously wounded, including children and women. One Israeli soldier has been killed and 26 Israelis injured, including 12 injured by home-made rockets fired from Gaza.
E. Military incursions causing death and destruction
20. Since 25 June IDF has made numerous and repeated incursions into the Gaza Strip, killing civilians and destroying houses. The most serious incursions have been into Beit Hanoun, Beit Lahia, Sajiyeh, Deir el-Balah, the el-Maghazi refugee camp, Rafah and Khan Younis. In the course of these raids, carried out by tanks and bulldozers, houses have been seized and transformed into military bases. These houses have been severely damaged and several hundred houses have been destroyed. Schools run by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) have been attacked and damaged. Olive and citrus trees have been uprooted and farmland destroyed in land levelling operations. Roads, water pipes and electricity and telephone poles have been damaged. Many families have been compelled to flee their houses, and it is estimated that some 3,400 Palestinians are presently being sheltered by UNRWA as a result of the military action. Military incursions have been accompanied by heavy shelling and the bombing of houses, resulting in the death of many civilians.
F. Shelling and sonic booms
21. Israel has maintained unrelenting shelling of the Gaza Strip since 25 June. Several thousand shells have been fired, an estimated 200-250 each day. IAF had conducted several hundred aerial bombings and fighter jets have fired air-to-surface missiles. This has been accompanied by F-16s flying low and breaking the sound barrier over Gaza, causing sonic booms that are as loud as the actual bombardments. These sonic booms have caused widespread terror among the population, particularly children. If terrorism has any meaning, then it is surely this.
22. Palestinians are not blameless when it comes to shelling. Militants continue to fire Qassam home-made rockets indiscriminately into Israel, injuring Israeli civilians, damaging civilian infrastructure and causing fear among the civilian population living near the Gaza border. It is estimated that eight to nine rockets are fired each day.
G. Targeted assassinations
23. Targeted assassinations have continued, with the inevitable “collateral damage” to civilians.
H. Terrorism by telephone
24. The Israeli military has resorted to a new method of psychological terror. Palestinians in Gaza are telephoned by Israeli military intelligence agents and warned that their houses will be blown up in less than one hour. This threat is sometimes carried out and sometimes not. This tactic has inevitably caused psychological distress and panic amongst Palestinians. Palestinians forced to leave their homes in this way have become internally displaced persons forced to live in UNRWA school premises.
I. Hospitals and health
25. Hospitals continue to function but are seriously impaired. Generators are being used to operate X-ray departments and operation theatres. Referrals abroad of patients from the Gaza Strip have been severely affected by the present crisis. As noted above, checkpoints have been closed to patients and permits denied. Particularly serious problems have arisen in respect of the Rafah border crossing to Egypt. Essential drugs are also in short supply. On 27 July the Palestinian Authority Ministry of Health reported that 67 of the 473 items on the list of essential drugs were out of stock.
26. Public health is endangered by lack of safe drinking water and sewage leakage and reported cases of diarrhoea have increased by 163 per cent compared with the same period last year. It is feared that communicable diseases like cholera and poliomyelitis will reappear.
J. Food and poverty
27. The poverty level in Gaza stands at 75 per cent, which means that three quarters of the population is unable to feed itself without assistance, a 30 per cent increase in just over a year. This is mainly attributable to the siege. Food insecurity results in part from the absence of purchasing power as few people have sufficient money today to cover their family’s basic food needs. Food prices have inflated and supplies have been reduced as a result of the current operation. As noted above, fish is no longer available as a result of the sea blockade. Wheat flour mills, factories producing food and bakeries have been forced to reduce their production owing to power shortages. Furthermore, the loss of capacity to preserve perishable food in the Gaza heat results in high food losses. Supplies of sugar, dairy products and milk are running extremely low as commercial supplies from Israel are limited.
28. As indicated above, water supplies have been seriously affected as a result of the destruction of the Gaza power plant and the bombing of pipelines. Consequently, drinking water is in short supply. UNRWA and ICRC have been compelled to supply water by means of water tankers.
K. Legal assessment of Israeli action
29. Israel’s actions must be assessed in terms of both human rights norms and international humanitarian law. According to the International Court of Justice in its advisory opinion cited above, both these regimes are applicable to Israel’s conduct in the Occupied Palestinian Territory.
30. Israel has violated a number of rights proclaimed in the International Covenant on Civil and Political Rights, particularly the right to life (art. 6), freedom from torture, inhuman or degrading treatment (art. 7), freedom from arbitrary arrest and detention (art. 9), freedom of movement (art. 12) and the right of children to protection (art. 24). It has also violated rights contained in the International Covenant on Economic, Social and Cultural Rights, notably “the right of everyone to an adequate standard of living for himself and for his family, including adequate food, clothing and housing”, freedom from hunger, and the right to food (art. 11) and the right to health (art. 12).
31. Israel has, in addition, violated the most fundamental rules of international humanitarian law, which constitute war crimes in terms of article 147 of the Fourth Geneva Convention and article 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol I). These include direct attacks against civilians and civilian objects and attacks which fail to distinguish between military targets and civilians or civilian objects (arts. 48, 51 (4) and 52 (1) of Protocol I); the excessive use of force arising from disproportionate attacks on civilians and civilian objects (arts. 51 (4) and 51 (5) of Protocol I); the spreading of terror among the civilian population (art. 33 of the Fourth Geneva Convention and art. 51 (2) of Protocol I) and the destruction of property not justified by military necessity (art. 53 of the Fourth Geneva Convention). Above all, the Government of Israel has violated the prohibition on collective punishment of an occupied people contained in article 33 of the Fourth Geneva Convention. The indiscriminate and excessive use of force against civilians and civilian objects, the destruction of electricity and water supplies, the bombardment of public buildings, the restrictions on freedom of movement and the consequences that these actions have had upon public health, food, family life and the psychological well-being of the Palestinian people constitute a gross form of collective punishment. The capture of Corporal Shalit and the continued firing of Qassam rockets into Israel cannot be condoned. On the other hand, they cannot justify the drastic punishment of a whole people in the way that Israel has done.
IV. The West Bank
32. Many of Israel’s policies and practices in the West Bank seriously impinge upon the human rights of Palestinians. The Wall presently under construction in Palestinian territory, checkpoints and roadblocks, settlements, an arbitrary permit system, the pervasive practice of house demolitions, targeted assassinations, and arrests and imprisonment violate a wide range of civil and political rights. Economic and social rights have also suffered from the humanitarian crisis resulting from the occupation.
33. The Wall that Israel is presently building largely in Palestinian territory is clearly illegal. The International Court of Justice in its advisory opinion of 9 July 2004 asserted that it is contrary to international law and that Israel is under obligation to discontinue construction of the Wall and to dismantle those sections that have already been built forthwith. On 20 July 2004 the General Assembly adopted resolution ES-10/15 by 150 votes in favour, 6 against and 10 abstentions, in which it demanded that Israel comply with its legal obligations identified in the advisory opinion. The Israeli High Court of Justice, in a judgement delivered in September 2005 in Mara’abe v. the Prime Minister of Israel (HCJ 7957/04), dismissed the advisory opinion, arguing that the International Court of Justice had failed to have regard to the security considerations that had prompted the construction of the Wall. The basis of this judgement has now been undermined by the admission of the Government that the Wall is designed to serve a political purpose and not an exclusively security purpose. The admission that the Wall has in part been built to include West Bank settlements within the Wall and under Israel’s direct protection has led the High Court to rebuke the Government for misleading it in the Mara’abe hearing and other challenges to the legality of the Wall.1 That the purpose of the Wall is to acquire land surrounding West Bank settlements and to include settlements within Israel can no longer be seriously challenged. The fact that 76 per cent of the West Bank settler population is enclosed within the Wall bears this out.
34. On 30 April 2006 the Government of Israel revised the route of the Wall. It will now be 703 km long when completed, rather than 670 km. At present over 50 per cent of the Wall has been completed. When it is finished, an estimated 60,500 West Bank Palestinians living in 42 villages and towns will reside in the closed zone between the Wall and the Green Line. More than 500,000 Palestinians living within 1 km of the Wall live on the eastern side but need to cross it to get to their farms and jobs and to maintain family connections. Eighty per cent of the Wall is built within the Palestinian territory itself and in order to incorporate the Ariel settlement block, it extends some 22 km into the West Bank. At present, there are some 73 gates in the Wall, but only 38 of them are accessible to Palestinians, and only to those with the correct permit.
35. The Wall has serious humanitarian consequences for Palestinians living within the closed zone (the area between the Green Line and the Wall). They are cut off from places of employment, schools, universities and specialized medical care, and community life is seriously fragmented. Palestinians who live on the eastern side of the Wall but whose land lies in the closed zone face serious economic hardship as a result of the fact that they are not able to reach their land to harvest crops or to graze their animals without permits. Permits are not easily granted. A host of obstacles are placed in the way of obtaining a permit. Bureaucratic procedures for obtaining permits are humiliating and obstructive. Although precise figures are not available, it seems that the number of permits refused may conservatively be estimated at 40 per cent. Reasons given for refusing permits range from security to failure to establish land ownership. The latter ground is now more frequently used by Israeli authorities as it has become clear that Palestinians, whose land ownership dates from a chaotic Ottoman system of land tenure, are frequently unable to prove ownership to the satisfaction of Israeli authorities determined to deny permits. The difficulties and humiliation occasioned by the process of applying for permits furthermore deters many Palestinians from applying. The fact that the opening and closure of gates leading to the closed zone are regulated in a highly arbitrary manner and frequently do not open as scheduled aggravates the situation.
36. Obstacles placed in the way of access to the closed zone have seriously affected farming in this zone. At a time when many Palestinians are returning to the land as a result of the non-payment of salaries to civil servants and the closure of many private businesses in the cities, the permit system seriously impacts upon Palestinian employment and livelihood.
37. Nearly 50 per cent of the Palestinian population in the Territory are refugees who fled their homes before Israeli armed forces in previous armed conflicts. Now a new category of internally displaced person is being created by the Wall. This arises from the confiscation of land and property to make way for the Wall, the denial of access to jobs, hospitals, schools and families in the West Bank and the refusal of permits to farm land in the closed zone. There are no comprehensive statistics on the subject. The Palestinian Central Bureau of Statistics has estimated that nearly 14,500 persons have been displaced by the Wall and B’Tselem, the Israeli human rights organization, has estimated that the Wall will displace some 90,000 Palestinians. In other regions, the forced displacement of persons by means of human rights violations is labelled ethnic cleansing.
V. Jerusalem and the Wall
38. The 75 km Wall around Jerusalem (of which only 5 km are on the Green Line) is the instrument being used to effect major changes in the city by seeking to ensure that Jerusalem assumes a predominantly Jewish character, which will undermine Palestinian claims to Jerusalem as the capital of an independent Palestinian State. This is being done by constructing the Wall through Palestinian neighbourhoods in East Jerusalem and classifying neighbourhoods on the eastern side of the Wall as belonging to the West Bank. This has serious implications for the human rights of some 230,000 Palestinians living in Jerusalem.
39. First, while Palestinians living on the west side of the Wall will be allowed to retain their Jerusalem identity documents, which entitle them to certain benefits, particularly in respect of social security, they will find it increasingly difficult to travel to cities in the West Bank such as Ramallah and Bethlehem, where many of them are employed. Moreover, if they elect to reside in the West Bank in order to be nearer to their places of work, they risk losing their Jerusalem identity documents and the right to live in Jerusalem because under Israel’s so-called centre of life policy, Palestinians must prove that they currently live in the city of East Jerusalem to maintain their Jerusalem residency rights. Residency rights may be withdrawn on political grounds. On 2 July 2006 the Government of Israel revoked the Jerusalem residency permits of four senior Hamas officials living in East Jerusalem.
40. Secondly, those relegated to the West Bank as a result of the construction of the Wall, who number about a quarter of the city’s Palestinian population will lose their Jerusalem identity documents and the attendant benefits. They will also require a permit to enter Jerusalem, and will be allowed to enter the city by only 4 of the 12 crossings in the Wall, which will considerably increase their commuting time and impede their access to schools, universities, hospitals, religious sites and places of employment. It is difficult to describe the humiliation of the crossings in the Wall to access Jerusalem. At the main crossing at Kalandiya, now designated a “terminal”, punitive bureaucratic procedures are applied that make passage through at peak hours take from one to two hours.
41. The construction of the Wall in order to achieve the Judaization of Jerusalem is a cynical exercise in social engineering that imposes severe hardships on all aspects of Palestinian life. In the words of B’Tselem: “The Barrier’s route [in Jerusalem], allegedly intended to prevent the deadly terror attacks, is in fact dictated by … political considerations … The result undermines the very rationale of the Barrier as a security measure, and severely violates basic rights”2
VI. Bethlehem and the Wall
42. The historic city of Bethlehem has suffered the same fate as Jerusalem. It is surrounded by a mix of concrete slabs, razor wire fences, trenches and sniper towers which completely undermine the historic character of the city. The Wall has ghettoized Bethlehem and decimated the Palestinian neighbourhood around Rachel’s Tomb, which is encircled by a wall designed to protect Jewish worshippers. Most businesses in the area have closed or have been compelled to relocate. The Bethlehem “terminal” resembles that of Kalandiya and restricts movement between Bethlehem and Jerusalem.
43. Jewish settlements in the West Bank are illegal. They violate article 49, paragraph 6, of the Fourth Geneva Convention and their illegality has been confirmed by the International Court of Justice in the advisory opinion on the Wall. The Israeli High Court has consistently refused to pronounce on the legality of settlements, which indicates that even Israel’s own High Court is unwilling to confer legitimacy on settlements.
44. Despite the illegality of settlements and the unanimous condemnation of settlements by the international community, the Government of Israel persists in allowing settlements to grow. Sometimes settlement expansion occurs openly and with the full approval of the Government. In 2006, the Government has so far invited tenders for the construction of 952 housing units in settlements on the West Bank.3 More frequently, expansion takes place stealthily under the guise of “natural growth”, which has resulted in Israeli settlements growing at an average rate of 5.5 per cent compared with the average growth rate in Israeli cities of 1.7 per cent. Sometimes settlements expand unlawfully in terms of Israeli law, but no attempt is made to enforce the law. Outposts are frequently established and threats to remove them are not carried out. In 2006 settlers had the audacity to move into apartments in the Upper Modi’in settlement built on land belonging to the neighbouring Palestinian village of Bil’in in flagrant disregard of a High Court injunction against such occupation.
45. As a result of expansion, the settler population in the West Bank numbers some 260,000 persons and that of East Jerusalem nearly 200,000. As indicated above, the Wall is presently being built in both the West Bank and East Jerusalem to ensure that most settlements will be enclosed within the Wall. Moreover, the three major settlement blocks of Gush Etzion, Ma’aleh Adumim and Ariel will effectively divide Palestinian territory into cantons, thereby destroying the territorial integrity of Palestine.
46. It is clear from statements of the Government of Israel that the major settlement blocks are destined to remain part of Israel. On 3 May 2006 Prime Minister Olmert told the Knesset that “[t]he achievements of the settlement movement in main concentrations will forever be an integral part of the sovereign state of Israel, along with Jerusalem our united capital”.4
47. The proposals of the Government of Israel for “unilateral disengagement”, “convergence” or “realignment”, now in abeyance as a result of the Lebanon war, clearly envisage the unlawful annexation of large portions of Palestinian territory. The euphemisms used to describe this policy should not be allowed to obscure the hard truth.
48. Settler violence continues to be a serious problem. In June 2006 the Palestinian Monitoring Group published a monthly account of settler violence which is illustrative of the problem:
51. Israel has abandoned earlier plans to build the Wall along the spine of OPT and to formally appropriate the Jordan Valley. It has nevertheless asserted its control over this region, which constitutes 25 per cent of the West Bank, in much the same way as it has done over the closed zone between the Wall and the Green Line on Palestine’s western border. That Israel intends to remain permanently in the Jordan Valley is clear from government statements and is further manifested, first, by restrictions imposed on Palestinians and, second, by the exercise of Israeli control and the increase in the number of settlements in the Jordan Valley.
52. Palestinians living in the Jordan Valley must possess ID cards with a Jordan Valley address, and only those persons may travel within the Jordan Valley without Israeli permits. Other Palestinians, including non-resident landowners and workers, must obtain permits to enter the Jordan Valley and in practice such permits are not valid for overnight stays, necessitating daily commuting and delays at checkpoints connecting the Jordan Valley with the rest of the West Bank. This has led to the isolation of the Jordan Valley. Travel restrictions make it difficult for farmers in the Jordan Valley to access markets in the West Bank as their produce is frequently held up at checkpoints, notably at Al Hamra, and perishes in the process. Attempts to sell such produce along the roadside have failed as a result of the destruction of agricultural stalls along the road by IDF.
53. Housing in the Jordan Valley is also a serious problem as most of the Valley is designated as Area C, which means that the Israeli authorities must give permission for the construction of houses. I visited a Bedouin family near Jericho who were faced with a demolition order for their “illegal” house. The vindictive enthusiasm with which IDF carries out its duties in this respect is illustrated by the following amusing, but revealing, incident. I visited a house in the village of Zbeidat on the border of Area C. The owner had planted a row of geraniums outside his house, some of which had extended over into Area C territory. The IDF informed him that he had to remove those geraniums as they had been grown without permission.
54. Most of the land in the Jordan Valley is controlled by Jewish settlements or used as military zones. Only 4 per cent of the Valley is accessible to the 47,000 Palestinians for agricultural and residential use. There are some 8,300 settlers living in the Jordan Valley and their number is growing as a result of the resettlement of settlers from Gaza. Whereas most Palestinian villages are without electricity and water settlers are linked to Israel’s electricity and water systems. Moreover, the 8,300 settlers living in the Jordan Valley consume more water each year than the 47,000 Palestinians living in the region.
X. House demolitions
55. The demolition of houses is a regular feature of the occupation, and the bulldozer has become a hated symbol of it. Traditionally, the occupying Power has demolished houses for punitive reasons (where a resident of the house has committed a crime against Israel), military necessity, or for failure to obtain a permit to build. In recent times houses have been demolished for additional reasons: first, to make way for the Wall and second, to carry out arrests of wanted persons. It will be recalled that last year the Israeli High Court forbade the use of Palestinian civilians as human shields in arrest operations. Now, if a wanted person is suspected of being in a particular house and refuses to surrender, the house is bulldozed. I myself witnessed the manner in which houses had been destroyed in this way in the Balata refugee camp near Nablus.
56. For many years Israel has destroyed houses built without permission, arguing that in so doing it is simply applying municipal housing laws in the same way as other developed societies do. Such an argument fails to take account of two factors. First, an occupying Power is constrained from destroying the houses of persons protected by international humanitarian law (see art. 23 (g) of the Hague Regulation concerning the Laws and Customs of War on Land annexed to the Hague Convention IV of 1907 and article 53 of the Fourth Geneva Convention). This applies to Palestinian homes in the West Bank, Gaza and East Jerusalem. Second, permits are refused in such an arbitrary manner, and are refused with such great regularity, that it has become virtually impossible for Palestinians to obtain permits to build houses. The permit system for Palestinians in East Jerusalem is administered in a completely different way from the way it is administered in respect of Israelis. The discriminatory way in which the permit system is implemented in East Jerusalem has recently been highlighted by Meir Margalit in Discrimination in the Heart of the Holy City (2006). During my visit I spent time in the village Al Walaja, which was annexed to East Jerusalem following the 1967 war. The residents have not, however, been given Jerusalem ID documents and requests for building permits have consistently been refused. Recently an attempt has been made to construct the Wall through the village, but this seems to have been abandoned. The Israeli authorities, however, seem determined to bring pressure to bear on the residents of the Ein-Jweisa neighbourhood of Al Walaja to move by threatening them with house demolitions. Between 1985 and 2006, 29 houses have been demolished and at present some 24 homes face demolition orders.
57. The number of checkpoints, including roadblocks, earth mounds and trenches, has increased from 376 in August 2005 to over 500. These checkpoints divide the West Bank into four distinct areas: the north (Nablus, Jenin and Tulkarem), the centre (Ramallah), the south (Hebron) and East Jerusalem. Within these areas further enclaves have been created by a system of checkpoints and roadblocks. Cities are cut off from each other as a permit is required to travel from one area to another and, again, permits are difficult to obtain. The rules relating to the granting of permits constantly change, particularly with respect to the age of the persons to whom permits are denied. Moreover, bureaucratic procedures for obtaining permits are arbitrary and obstructive. This has worsened since Hamas came to power as those applying for permits must now apply directly to the Israeli Civil Administration because the Government of Israel refuses to cooperate with any Palestinian governmental authority. The permit system also explains the economic decline of OPT as goods and labour cannot move freely.
58. In June 2006 I visited the city of Nablus, which is now completely surrounded by checkpoints that make entrance into and exit from the city impossible for most residents. The Hawara checkpoint, in particular, has achieved notoriety for the harsh manner in which it is administered. In effect, Nablus has become an imprisoned city.
59. Israel justifies checkpoints on security grounds. It is difficult to accept this justification for most checkpoints. After all, the Wall provides an effective security barrier between Israel and OPT and there is a line of checkpoints along the finger of land in which the Ariel settlement block has been established, which should adequately ensure the protection of Israelis. Checkpoints in other areas, such as those surrounding Nablus, therefore seem to serve no security purpose. This suggests that the main purpose of many checkpoints is in fact to make Palestinians constantly aware of Israeli control of their lives and to humiliate them in the process.
XII. Separation of families
60. The right to family life is recognized by all human rights conventions. In OPT it is undermined by Israel in a number of ways. First, the Wall running between Jerusalem neighbourhoods separates Palestinians with Jerusalem identity documents from those with West Bank documents. When husband and wife have separate documents they often have no choice but to separate in order to allow the Jerusalem ID holder to retain his or her benefits. Eighteen per cent of Palestinian households in Jerusalem are separated from the father and 12 per cent of households are separated from the mother. Secondly, the authorities have recently embarked upon a policy of denying access to Palestinians with foreign passports. In previous years, Palestinians with foreign passports have been allowed to live in the West Bank provided that they renewed their visas every three months. This affects some 50,000 Palestinians living in the West Bank who now face a denial of visas.5 Thirdly, an Israeli law on citizenship prohibits Palestinians who marry Israeli Arabs from living with their spouses in Israel. This law was recently the subject of a controversial decision by the Israeli High Court of Justice which held that the law, which does not apply to Jewish Israelis who marry foreigners, was constitutional on the grounds of security. The Court reasoned that the State was entitled to prevent Palestinians from living with their Israeli spouses in Israel because that might allow Palestinians who threaten the security of Israel to enter the country.
XIII. Administration of justice
61. Israel clearly does not ascribe to the policy of winning hearts and minds in the process of administering justice; instead, it shows the iron fist, in the process of making arrests, the treatment of arrested persons and the treatment of prisoners. The situation seems to have worsened since Hamas was elected to office.
62. The making of arrests, as has been shown, is frequently accompanied by the destruction and trashing of property, beatings, the unleashing of dogs in civilian homes, humiliating strip searches and early morning raids. The interrogation of arrested persons continues to be accompanied by a mix of psychological pressure and physical violence. The number of prisoners continues to rise. There are now over 10,000 Palestinian prisoners in Israeli jails, including women and children. The position of child prisoners is particularly disturbing as they are often compelled to share cells with adult prisoners and denied education and access to family.
63. The arrest of high-profile figures serves to remind Palestinians that no one is beyond the reach of Israel’s power. In March 2006 Israel stormed and largely destroyed the Jericho prison to arrest Ahmed Saadat and his accomplices, immediately after their British and American wardens had withdrawn in violation of a 2002 agreement in which they had undertaken to monitor the detention of
Mr. Saadat and others. In June 2006 eight Hamas Cabinet ministers and 26 members of the Palestinian Legislative Council were arrested in Ramallah. In August 2006 Aziz Dweik, Speaker of the Palestinian Legislative Council, Nasser Al-Shaer, Deputy Prime Minister, and Mahmoud Al-Ramahi, Secretary-General of the Palestinian Legislative Council, were arrested in separate raids.
XIV. Israel, security and human rights
64. The litany of violations of human rights and international humanitarian law described in this report is difficult to reconcile with Israel’s commitment to the rule of law. This is the paradoxical situation in which Israel finds itself. On the one hand, Israel has a Supreme Court and institutions designed to ensure respect for the rule of law. On the other hand, Israel stands accused of serious violations of human rights and international humanitarian law. Israel’s response is to dispute the factual assessment of many violations and, where the facts are undisputed, to justify its action as necessary security measures.
65. In many parts of the world there is sympathy for Israel’s actions. Israel is seen to be engaged in the war against terror, which justifies departure from accepted human rights norms. Moreover, because of its commitment to the rule of law, Israel is seen to be a benign occupier which reluctantly violates norms of human rights and humanitarian law in the interest of security. Unfortunately, this perception is false. Israel is not a benign occupier of the West Bank, Gaza and East Jerusalem. As has been shown, its actions are often grossly disproportionate to the security threat involved. In addition, its forces execute their tasks in a harsh manner characterized by arbitrariness and vindictiveness. The permit system that regulates the movement of Palestinians is implemented in an arbitrary manner which leaves the applicant entirely at the mercy of the whims of the Israeli bureaucrat charged with the task of granting or refusing permits. Checkpoints are administered in a humiliating manner. Here it is important to stress that the nastiness of soldiers seems to have increased since the election of Hamas and the Lebanon war: soldiers now seem to regard every Palestinian as a potential terrorist to be treated without respect. Little compassion is shown for the sick and the elderly and there are numerous incidents of women giving birth at checkpoints while soldiers refuse them permission to travel to hospitals. Arrests are accompanied not only by the destruction of property but by the trashing of property. (The Special Rapporteur visited an UNRWA school in the Balata refugee camp which had be en seized as a base for military activities in the camp in February 2006. School property was deliberately trashed and graffiti scrawled on the walls in a manner that could not possibly be justified on grounds of security.) Houses built without permits are unnecessarily destroyed and sometimes destroyed while court actions are pending. Settler violence and vandalism are openly tolerated by IDF. Communities are refused water and electricity when those services could easily be provided by linking up with the supply to neighbouring settlements. No regard is paid to family life. And so on. In short, the occupation is not administered in a humane manner. Israeli dissidents who have served in the system (for instance, soldiers, who formed a dissident group, “Breaking the Silence”, in 2004) and those who monitor the occupation (such as Machsom Watch) have borne witness to the callous manner in which the occupation is implemented.
XV. The humanitarian crisis and funding of the
66. The humanitarian crisis in Gaza is dealt with separately in the section on Gaza above. The appalling humanitarian situation in that part of OPT should not be allowed to distract attention from the serious humanitarian crisis in OPT as a whole. Four out of 10 Palestinians live under the official poverty line of less than US$ 2.10 a day. The level of unemployment is difficult to determine. The International Labour Organization has estimated the jobless rate to be over 40 per cent of the Palestinian labour force. This, however, does not take account of the fact that the public sector, which represents 23 per cent of total employment in OPT, is employed but unpaid.
67. In large measure the humanitarian crisis is the result of the termination of funding of the Palestinian Authority since Hamas was elected to office. In the first instance the Government of Israel is withholding from the Palestinian Authority VAT monies amounting to $50-60 million per month which it collects on behalf of the Authority on goods imported into OPT. In law Israel has no right to refuse to transfer this money, which belongs to the Palestinian Authority under the 1994 Protocol on Economic Relations between the Government of Israel and the Palestine Liberation Organization (Paris Protocol). Predictably, Israel justifies its action on security grounds. The shortfall in funds for the Palestinian Authority has been accompanied by a drastic reduction in funding on the part of donor countries and agencies. This has had a serious impact on the work of NGOs which have had to suspend or cancel their projects related to the work of the Authority. As a result of the fact that Hamas is classified as a terrorist organization by both the United States of America and the European Union, the United States Treasury has decided to prohibit transactions with the Palestinian Authority. This has had a profound effect on banks, which are not prepared to transfer funds to the Authority, its agencies and its projects and to NGOs engaged in projects with the Authority. Som e projects involving the Authority continue to be funded (e.g. World Bank projects) and the European Union has set up a Temporary International Mechanism, endorsed by the Quartet, for the relief of Palestinians employed in the health sector, the uninterrupted supply of utilities, including fuel, and the provision of basic allowances to meet the needs of the poorest segment of the population.
68. Despite limited funding attempts of this kind, it is clear that the Palestinian economy, which has become heavily dependent on donor funding since 1994, has suffered dramatically as a result of the withholding of funds by Israel and the international community since the election of Hamas. This economic strangulation has had a severe impact on the social and economic rights of the Palestinian people. About 1 million of Palestine’s 3.5 million people are directly affected by the non-payment of salaries to some 152,000 civil servants (and their families), but the whole population has suffered indirectly. Moreover, as the Palestinian Authority is responsible for over 70 per cent of schools and 60 per cent of health-care services in the Territory, both education and health care have suffered substantially. In August 2006 civil servants embarked on a strike against non-payment of their salaries which has further aggravated the socioeconomic crisis.
69. Health care is examined more fully in the section on Gaza. However, it is important to stress that cuts in funding have impacted seriously on health care throughout OPT. The failure to pay the salaries of health-care workers has led to absenteeism because workers are simply unable to pay for transportation to the workplace. Drugs and vaccines are in short supply. Hospitals are unable to provide adequately for cancer and kidney dialysis patients. The transfer of patients to hospitals in other parts of the West Bank, and particularly to Israel and Egypt, has become particularly difficult as a result of closures and the refusal of permits.
70. In effect, the Palestinian people have been subjected to economic sanctions — the first time an occupied people have been so treated. This is difficult to understand. Israel is in violation of major Security Council and General Assembly resolutions dealing with unlawful territorial change and the violation of human rights and has failed to implement the 2004 advisory opinion of the International Court of Justice, yet it escapes the imposition of sanctions. Instead, the Palestinian people, rather than the Palestinian Authority, have been subjected to possibly the most rigorous form of international sanctions imposed in modern times. It is interesting to recall that the Western States refused to impose meaningful economic sanctions on South Africa to compel it to abandon apartheid on the grounds that that would harm the black people of South Africa. No such sympathy is extended to the Palestinian people or to their human rights.
XVI. The advisory opinion of the International Court of Justice and the United Nations
71. In 2004 the International Court of Justice held that the Wall that Israel is presently building in Palestinian territory is illegal and should be dismantled. In its advisory opinion the Court also found a number of other Israeli practices (such as the establishment of settlements) to be contrary to international law. Two years have passed, and nothing has been done to give effect to the findings of the Court. To aggravate matters, the Wall does not feature in any way whatsoever in the regular utterances of the Quartet. It is as if no opinion had been given.
72. In 2004 the General Assembly, in its resolution ES-10/15, instructed the Secretary-General to establish a register of damages arising from the construction of the Wall. Two years later, this register still does not exist, raising serious doubts about whether its structure, goals and methods of operation will comply with the advisory opinion.
73. The advisory opinion of the International Court of Justice is an authoritative pronouncement of the judicial organ of the United Nations, which has been endorsed by the General Assembly in resolution ES-10/15. As an advisory opinion, it is not binding upon States. It is, however, a definitive statement of the law as far as the United Nations is concerned, and it must guide the United Nations in the same way as the advisory opinion of 21 June 1971 on the Legal Consequences for States of the Continuing Presence of South Africa in Namibia guided the political organs of the United Nations in their handling of the Namibian question. As a member of the Quartet, the United Nations is duty bound to persuade that group to at least make reference to the advisory opinion of the Court in its regular statements. If it fails in this endeavour, it must at least express its dissatisfaction with the failure of the Quartet to be guided by the advisory opinion and to make reference to it.
74. This report does not make pleasant reading. Israel is in violation of important norms of human rights and international humanitarian law. While it is readily conceded that Israel faces a security threat and is entitled to defend itself, it must not be forgotten that the root cause of the security threat is the continued occupation of a people that wishes to exercise its right of self-determination in an independent State. The need to bring this situation to an end is recognized by the international community, which has delegated power to the Quartet, comprising the United Nations, the European Union, the United States of America and the Russian Federation, to facilitate a peaceful settlement in the form of the creation of a Palestinian State. Unfortunately, at present this goal seems to have been lost to view as the Quartet turns to punitive measures designed to compel Hamas to change its ideological stance, or to bring about regime change. This is clear from the Quartet’s statement of 9 May 2006. Whether the United Nations is in law authorized to make itself a party to economic coercion through the Quartet without following its own procedures un der the Charter is questionable. In any event, diplomacy has given way to coercion.
75. It is pointless for the Special Rapporteur to recommend to the Government of Israel that it show respect for human rights and international humanitarian law. More authoritative bodies, notably the International Court of Justice and the Security Council, have made similar appeals with as little success as have had previous reports of the Special Rapporteur. It also seems pointless for the Special Rapporteur to appeal to the Quartet to strive for the restoration of human rights, as neither respect for human rights nor respect for the rule of law features prominently on the agenda of this group, as reflected in its public utterances. In these circumstances, the Special Rapporteur can only appeal to the wider international community to concern itself more actively with the plight of the Palestinian people.
76. The image and reputation of the United Nations has, sadly, suffered in the occupied Palestinian territories. While there is high regard for dedicated and committed United Nations workers on the ground, the same cannot be said for the United Nations in New York and Geneva. Palestinians are dismayed by the inability of the Security Council to take action to protect human rights, as evidenced by the veto of an even-handed draft Security Council resolution on Gaza on 12 July 2006. The political organs of the United Nations need to show more concern for the human rights of Palestinians. Reports such as the present one record the violations of human rights and humanitarian law, but real action on the part of the Organization is essential at this troubled time.