Contary to the leading opinions of the American-European politicians and media, the main aim of Hamas in calling for the “destruction” of the State of Israel, is not to kill or expel the Israeli-Jewish population, but to dismantle the zionistic State Model and to make an end to the 39-year Israeli occupation and settlement policy.
In the Palestinian elections January 25, 2006, Hamas obtained a startling victory. Of the 132 seats of parliament, the Hamas party, which for the first time was participating in the parliamentary elections, obtained 74 seats, in contrast with the then-reigning Fatah Party, which obtained a mere 43 seats. The remaining 13 seats were obtained by different smaller political parties, as well as independent candidates.
This great victory for Hamas was no surprise, considering the ongoing corruption of the Fatah-government versus the fundamental political and military resistance by Hamas against the Israeli occupation, as well as the Hamas social activities on behalf of the impoverished population of Palestine, especially Gaza.
In spite of this, leading American-European politicians, as well as the newsmedia, not only showed great astonishment at Hamas’ victory, they also demanded that Hamas renounce the violence against Israel and also acknowledge the State of Israel – and made this demand the condition of continued financial support to the Palestinian Authority.
When the newly-formed Hamas government refused to agree with those American-European demands, the American and Canadian governments, as well the European Union, decided to freeze the financial support to the Palestinian Authority, a measure which mainly affected the already seriously impoverished Palestinian civilian population, since at least 45% of the population [some reports put the number as high as 70 %] are living below the poverty-rate and 15% are living in extreme poverty.
Nutrition, education and medicine have been the areas most affected by the financial and economic boycott of Palestine. Moreover, 250,000 Palestinians depend on Palestinian Authority salaries, and these government employees support nearly one million people, or 20% of the total Palestinian population. However, due to the American-European boycott, salaries haven’t been paid since January, and the families of the government employees have had to bear the consequences.
Not only are the boycott measures morally reprehensible in regard with the humanitarian consequences for the Palestinian civilian-population, they have also led to mounting tensions within the Palestinian society.
Many international non-governmental organizations, as well as a number of United Nations agencies, have harshly criticized the economic boycott and blockade of Palestine.
Another consequence of the boycott is that, as a result of the freezing of European Union (EU) financial support, Hamas shall receive increased financial aid from the governments of the Arab and other Islamic countries. This will lead to the lessening of EU political influence regarding the Israeli-Palestinian conflict, and the strengthening of the influence of regimes adhering to more radical political Islamic ideologies, such as Iran. Recently a number of Arab governments, and Iran, have either given or promised financial aid to the Hamas government.
No doubt aware of the above-mentioned political consequences of the diminishing EU influence regarding the Middle-East, the EU, represented by EU Commissioner Louis Michel (former Belgian minister of foreign affairs), has set aside a sum of 34 million euros for emergency aid to the Palestinian territories. This aid is to be delivered outside of the Palestinian government, mainly through non-governmental organizations (NGOs).
Also the World Bank, which has predicted an increasing humanitarian crisis in the Palestinian territories, is exploring, in direct cooperation with the ‘Quartet for Mideast Peace made up of the EU, USA, the Russian Federation and the UN, to resume financial aid to the Palestinian population, by going outside of Hamas channels, bypassing the Hamas-led Palestinian government by providing the aid by way of NGOs which are active in the area.
Double standards:
The basis of the American-European boycott of the financial aid to the Palestinian Authority lies in the refusal of Hamas to renounce violence against Israel and to acknowlegde the State of Israel. A further argument given in support of the boycott is the fact, that Hamas has played a major role in the incitement to suicide attacks against Israeli civilians and is still continuing this strategy.
It is self-evident that suicide-attacks as military attacks on civilians are not only inhuman, but also illegal according to International Law. But what is seldom mentioned by the EU and the American-European governments are that these attacks are a matter of cause and effects, since they have been the result of the now 39 years of Israeli occupation of Palestinian land — an occupation which is in violation of the unanimously-accepted UN-Security Resolution 242 of 1967, in which Israel was required to withdraw its troops from the territories conquered during the June 1967 war, including the Palestinian territories.
Also, the boycotting countries are ignoring the fact that the attacks by Hamas do not consist solely of suicide-attacks, but also of the internationally-recognized legitimate acts of defense by an occupied population against the occupying military force — in this case, the Israeli army.
Repeatedly, the Hamas leadership has declared, both pre- and post- the January elections, the group’s willingness to renounce violence against Israel, as soon as Israel is prepared to end its occupation of the Palestinian territories [ie. its international obligation under UN Security Council Resolution 242], to dismantle its settlements in the Palestinian territories, which are illegal according International Law [see also UN-Security Council Resolution 1979], to dismantle the Wall, which is being built across occupied Palestinian territories [see verdict of the International Court of Justice dated 9-7-2004], and its acknowledgement of the internationally-recognized right of return for Palestinian refugees, a right which is confirmed by General Assembly Resolution 194.
All of the Hamas movement’s demands are based on International Law, confirmed by the above-named United Nations resolutions, and are therefore absolutely legitimate demands that should be recognized as such by the international community.
What is striking in this particular case, however, is that the American-European boycotting goverments are demanding that Hamas completely disarm on the one hand, while on the other hand, making no clear demands on Israel regarding the implementation of the above mentioned UN resolutions, which were voted for by many of these same American-European States.
Also this double standard is being applied in regard to Israeli and Palestinian violence.
Although the condemnation of suicide-attacks against Israeli civilians is correct and justified, there is however a strong undervaluation of the serious character of the Israeli human rights violatons and war-crimes which have been committed by the Israeli army since the beginning of the occupation in 1967 (and before).
It is also significant to mention that from EU-side there is no real political pressure on Israel to end the occupation and withdraw from the Palestinian territories. Seen from that perspective, the American-European criticism against Hamas lacks moral credibility, as the boycotting nations are choosing to call for the enforcement of international law on a very selective basis. Why should international human rights standards only apply to Hamas? Why should they not apply to Israel as well?
The false international perception of Hamas ideology
It is a common standard in nearly all American-European newsmedia, as well in statements of politicians, to mention repeatedly that the Hamas ideology is associated with the “destruction” of the State of Israel.
In the context in which this statement is made, it is almost always implied that by calling for Israel’s “destruction”, Hamas intends to expel the Jewish-Israeli inhabitants out of the present Israel or even to kill them.
Before trying to unmask this stubborn American-European assumption I want to throw some light on the political history of the Hamas
Hamas [abbreviation of Harakat al-muqâwama al-islâmiyya, which means islamic resistanc emovement] was founded in 1987 as a religious-nationalistic resistance-organisation with Sheikh Ahmed Yassin as the spiritual leader. He was killed in an Israeli airstrike in March 2004, which, being an extra-judicial execution, not only killed him but also killed 7 other innocent bystanders.
However, since the beginning of the eighties, there was a predecessor of Hamas, also under the leadership of Sheikh Yassin, which was mainly an islamic revival movement, mostly directed toward social and charitable goals.
Although that movement of course opposed the Israeli occupation, it did not promote violent resistance, since the group considered the Israeli occupation as a punishment of God because of the lack of religious devotion in Palestine.
In other words, this revival-movement was meant to make the Palestinian population return to the basics of Islam, as explained by the movement, in their daily life.
This revivalist-ideological movement was supported financially by Israel, supposedly as a ‘counterbalance’ to the Palestine Liberation Organization, led by Yasser Arafat, which was, in combination with the al-Fatah organization, the most powerful resistance movement against the Israeli occupation at that time.
Even when the official Hamas organization was founded in 1987, initially there was no real resistance against the occupation, despite the anti-zionistic Charterof the group, written in 1988.
Only in the post-Oslo era (1993 on) did the Hamas organization became part of the resistance, resulting in military attacks against the Israeli occupation army, and, beginning in 1994, in suicide-attacks against Israeli civilians. The immediate cause of the first suicide-attack was the 1994 massacre by the Jewish-Israeli extreme-rightwing terrorist, Dr. Baruch Goldstein, on 29 Palestinians who were praying Palestinians in the Cave of the Patriarchs in Hebron.
The Hamas Charter
An analysis of the Hamas Charter, that consists of 36 articles, reveals that the purpose of the group is to form a religious resistance against the Israeli occupation, as well as advocating for the dismantlement of the zionistic State of Israel, to be replaced by an Islamic Palestinian State with equal rights for all the inhabitants and religious freedom regarding Jews and Christians.
Seen from this perspective, the Charter has an anti-colonialistic character, because of its fundamental criticism of the colonial character of the foundation of the State of Israel in historical Palestine, first as a colony of the Turkish-Ottoman Empire, and after World War I, a British Mandate-area.
Following the plans of the European zionist movement, the foundation of a “Jewish” State in historical Palestine took place in 1948, based on UN General Assembly Resolution 181, passed in 1947, which supported the division of Palestine into a Jewish and an Arab part. The Resolution was made without any consultation of the indigenous Palestinian population, despite the fact that the Palestinians, along with the surrounding Arab states, had proposed at that time an alternative plan that would allow for Jewish immigration into Palestine without the separation of the state into “Jewish” and “Arab” areas, but that alternative was rejected by the United Nations, under pressure from the European Zionist movement.
It is of importance to mention here, that the objections of the Palestinians to Resolution 181 were not against the settlement of Jewish people in Palestine, but against the division of their country in two different States.
Apart from that, the Hamas movement is within its rights under international law to challenge the existence of the Zionist State of Israel in its current form, as the State of Israel in its current form is, at its basis, discriminatory against non-Jews.
One of the most striking examples of the discriminatory basis of the State of Israel is the fact that any Jewish man, woman or child in the world has the right to settle in Israel, while the internationally-recognized right of return of the Palestinian descendants of the 750,000 Palestinians expelled by Zionist militias in 1948, a right confirmed in General Assembly Resolution 194, passed in 1948, is not acknowledged by Israel.
The statements often made by the American-European politicians and newsmedia that Hamas wants to expel or even kill the Israeli-Jewish inhabitants of Israel is made based on a false reading of the Hamas Charter.
Although in the Charter, reference is made to “the Jews”, a thorough reading makes clear that this is a reference to the Israeli zionist system and the Israeli occupation, and not to the Jews as an ethnic-religious group. In Hamas bulletins, the group never refers to “the Jews” as such, but rather to the “zionist enemy” or the “zionist entity” – a reference to the political basis of the state of Israel, _not_ to Jewish people as an ethnic or religious group.
Suicide-attacks
In any mention of Hamas in the American-European press, emphasis is always made on the suicide-attacks against Israeli civilians for which Hamas bears responsibility. It is evident that suicide-attacks are not only inhuman, they are also serious violations of International Humanitarian Law, which states that in any military conflict a clear distinction must be made between combatants [soldiers or fighters] and non-combatants [civilians].
From that point of view it is completely right that those attacks are being severely condemned by the International Community.
But it is important to realize that the cause of those suicide-attacks are rooted in the Israeli occupation of all Palestinian land since 1967. The attacks began in 1994 after nearly thirty years of continuous oppression, humiliation and unpunished war crimes by Israeli forces in Palestine with no international enforcement of United Nations Resolutions that both recognized and condemned the Israeli actions and war crimes.
Still, this is no justification whatsoever for any resistance group to also commit war crimes. According to International Law it is illegal to respond to a violation of one’s human rights by committing a reciprocal violation, even in regard to an occupation.
On the other hand, any military action against an occupation army is considered legitimate resistance by an occupied population against the occupying power. However, there is little international attention to the fact that an important part of Hamas’ strategy is also the use of this legitimate resistance method.
It is worth noting that Israel, as well as the USA, qualify those military attacks against the occupation army as ‘terrorist acts’, ignoring the internationally-recognized legitimacy of such acts.
Recently, Mr. Solana, Secretary-General of the Council of the European Union, has confirmed the right of resistance against a foreign occupation.
The Israeli extrajudicial assassination policy
One policy of Israel that is both morally reprehensible and a violation of international law is the policy of extrajudicial assassinations of the leaders and activists of the Palestinian resistance movements like Hamas.
These assassinations began in the beginning of the 1970s and have continued until the present day. Each successive Israeli government that has been elected has continued the policy unquestioningly.
Israeli assassinations of suspected Palestinian resistance fighters and leaders have taken a number of forms: the frontal shootings of cars, the exploding of mobile telephones and the current method: ‘assassination-by-missile’ – airstrikes by Israeli warplanes onto suspected cars or homes, regardless of whether the target is in a crowded refugee-camp, in a flat full of civilian apartments, or in a marketplace. All of these have been the sites of missile strikes by Israeli forces in attempted extrajudicial assassinations.
These attacks are severe violations of International Law, which states that every human being has a right on a fair and independent trial.
In the extrajudicial assassinations, which are still being carried out by Israeli forces on a nearly-daily basis, in many cases civilian bystanders are also killed.
In those cases, the extrajudicial assassinations become not just violations of international law, but war crimes. The fact that civilians are nearly always present at the assassination sites [streets, market-places, cars, apartments and refugee-camps] leads to a high probability of civilians being killed – this is a direct violation of the Fourth Geneva Convention’s Principle of Proportionality, and thus is considered internationally to be a war crime.
However, despite the high humanitarian risk for the civilian population, the current Israeli Prime Minister Olmert has made clear that those airstrikes are to be continued, despite the continuous loss of Palestinian civilian lives.
It is a striking example of Western ‘selective indignation’ that this Israeli policy of extrajudicial assassinations, which nearly always leads to civilian casualties, is not criticized as harshly as Hamas’ incitement toward suicide-attacks.
No sanctions have been taken against Israel in regard with thosde extrajudicial executions, as well the indiscriminate military attacks on Gaza. But all financial assistance has been cut to the Hamas-led Palestinian Authority.
Regarding this issue, Israel, being the occupying country, bears the lion’s share in the escalation of the present conflict. The EU, which claims to consider Palestinian humanitarian concerns in its policies, must be held accountable for its hypocritical double standard in the enforcement of international law in this conflict.
Social-charitable Hamas-activities
One aspect of Hamas’ activities that has long been undervalued internationally is the fact that Hamas has been engaging in social and charitable activities on behalf of the most impoverished in the two Palestinian territories, the Gaza Strip and the West Bank. Ironically, by doing this, Hamas is fulfilling the international-judicial obligation of the Israeli occupying power to take care of the humanitarian needs of the occupied Palestinian population – an obligation that Israel has failed to fulfill.
According one of the most important articles of the 4th Geneva Convention, an occupying power is responsible for the safety, well-being and the welfare of the occupied population, a population which, while under occupation, become “protected persons” – a class of people that have special rights under international law.
The impoverished situation of the Palestinian population is being intensified each day by the Israeli military attacks in Gaza and the West-Bank, which have also resulted in serious human rights violations and war crimes.
When such Israeli measures were taken in the past, Hamas has increased its efforts to support the most impoverished part of the population. Donors for the projects, which include schools, hospitals and daycare centers, have come from all over the world, but mainly from the Arab world. Hamas gained a reputation as a focused and devoted group that did not steal money for themselves and their own enrichment (as was the reputation of the ruling Fateh party), but dedicated funding to numerous projects that benefited the least-well-off of the Palestinian society.
Of course, this led to a great popularity of Hamas and the striking outcome of the elections.
Ongoing Israeli violations
In both Gaza and the West Bank, massive home demolitions of Palestinian homes have been carried out by Israeli forces, which is forbidden according to article 53 of the Fourth Geneva Convention. Also, in Gaza especially, the border with Israel is often completely closed, causing tens of thousands of Palestinians who work in Israel to lose their jobs — their only means of livelihood.
In July and August 2006, Israeli forces have not only closed the border with Gaza, but also bombed parts of the infrastructure [bridges and main roads], which caused considerable damage and has cut off the water and electricity supply for the entire population. This was done, according to Israel, as a retaliatory measure for the abduction and imprisonment of an Israeli soldier by Palestinian resistance fighters on June 25th.
Retaliatory measures such as these, as collective punishment of an entire population, are serious breaches of International Law. In particular, article 33 of the Fourth Geneva Convention forbids any collective punishment.
Epilogue:
In this article I’ve tried to make clear, that not only is the American-European freezing of the financial help to the Palestinian Authority is immoral, because it is at the cost of the impoverished Palestinian population, it is also a double standard to condemn the violence of Hamas, while not condemning the ongoing violence of the Israeli occupation of Palestine.
No resistance organisation in the world can be expected to lay down their arms while the occupation and oppression they are resisting is allowed to continue in the most extreme way.
However, it must also be noted that a resistance movement must also adhere to its obligations according to International Law.
The international community, particularly the European-American nations that have chosen to boycott the Hamas-led Palestinian government, must respect the stand taken by Hamas against the Israeli occupation and settlement expansion policy, as well as Hamas’ fundamental resistance against the zionistic State-model of Israel. This must not be done by closing our eyes to the serious human rights violations of the group by the part it has played in suicide-attacks against Israeli civilians, but neither can we close our eyes to the ongoing human rights violations by Israel.
I sincerely hope that Hamas will not yield to the growing American-European political pressure to make the Israeli occupation and settlements policy points of negotiation.
But if Hamas really wants to be respected internationally, the group must refrain from attacks on Israeli civilians.
Every human being, whether Palestinian or Israeli, has the right on the same humane treatment and in my opinion, even living under an occupation as severe as the Israeli occupation of Palestine does not give a person or group the right to violate the rights of their occupiers.
Astrid Essed Amsterdam The Netherlands
“Power in defense of freedom is greater than power on behalf of tyranny and oppression.” -Malcolm X
Sterke 9/11-vibes na de aanval van Hamas op Israël. In navolging van EU-voorzitter Ursula von der Leyen verklaarden zowel Mark Rutte als Jesse Klaver dat Israël het recht heeft zich tegen deze terreur te verdedigen. We weten inmiddels hoe Israël zich verdedigt: door zoveel mogelijk Palestijnen aan gort te bombarderen.
Daar moeten wij het verplicht mee eens zijn in dit vrije deel van de wereld. Wierd Duk laat weten dat Afshin Ellian en VVD-Kamerlid Ruben Brekelmans op de staatstelevisie hebben verklaard dat je nú laat zien dat je solidair bent. Wie daar bezwaren tegen heeft, wordt door De Telegraaf als een misdadiger geschandpaald, te boek gesteld als antisemiet en als staatsgevaar. Duk hangt al drie dagen de Opiniepolizei uit, en hij niet alleen. Iedereen die erop wijst dat de Palestijnen de afgelopen decennia ook wat voor hun kiezen hebben gehad, wordt verrot gescholden, voor antisemiet uitgemaakt en bedreigd. Fanatiek sturen de Vrienden van Israël gruwelfilmpjes rond van verminkte lijken, de slachtoffers van Hamas.
Gruweldaden
En het zijn gruweldaden, die Hamas pleegt. De website Electronic Intifada spreekt van een “rechtvaardige bevrijdingsoorlog”, maar in een rechtvaardige bevrijdingsoorlog sleep je niet de naakte lijken van je slachtoffers door de straat, schiet je niet honderden jonge bezoekers van een muziekfestival dood en trek je niet moordend door woonwijken.
Extreemlinkse toetsenbordridders, geretweet door BIJ1-aanhangers, oordelen als kille schrijftafelmoordenaars dat er “geen onschuldige zionisten zijn” en dat “zionisten die blijven als ze de keuze hebben te vertrekken, ophouden burgers te zijn.”
“You don’t get freedom peacefully”, citeert iemand Malcolm X, maar er is verschil tussen “not peacefully” en de barbarij die Hamas tentoonspreidt. Ik ben geen Sun Tzu maar ik zou, als ik Hamas was, uiterst gedisciplineerd zijn geweest, alleen krijgsgevangenen hebben genomen en alle burgers met het uiterste respect hebben behandeld.
Maar het gaat er natuurlijk om Israël zo razend mogelijk te maken zodat het terugslaat met een wrede genadeloosheid die mensen kotsend het theater zal doen verlaten. Dat begrijp ik heus wel.
Israëlische doden
Dit afschuwelijke geweld komt niet uit het niets, al willen de Vrienden van Israël dit ons graag doen geloven. Ruben Brekelmans, bijvoorbeeld, deelt op Twitter een staafdiagram met alleen het aantal Israëlische doden van de afgelopen 15 jaar als gevolg van het “conflict met de Palestijnen.” Fact-checker Marieke Kuypers laat in zo’n zelfde diagram zien dat het aantal Israëlische doden in het niet valt bij het aantal Palestijnse doden.
En hoe Israël het voor elkaar krijgt zo onnoemelijk veel Palestijnse slachtoffers te maken, krijgen we bijna dagelijks in filmpjes te zien waarin we soldaten kinderen zien doodschieten alsof het kalkoenen zijn, Gaza bombarderen waar de bewoners niet uit wegkunnen en waarin kolonisten Palestijnen vernederen die ze net uit hun huis hebben weggejaagd, als ze ze niet gewoon doodschieten.
“Collateral damage” zei een Vriend van Israël tegen mij. Dode Israëlische burgers zijn slachtoffers van terreur, dode Palestijnen zijn “collateral damage”.
Palestijnen zijn ongedierte
Esther Voet zei, toen op het strand van Gaza een groepje voetballende Palestijnse kinderen vanuit een gevechtsvliegtuig aan stukken werd gereten: “Het is wel oorlog, hè!”
Palestijnse levens betekenen hier in Nederland gewoon niks. Palestijnen zijn vuil, uitschot, het is ongedierte, anders praat je niet zo makkelijk over dode kinderen. Zo achteloos, zo zonder enig gevoel.
En dan ben je geschokt dat Hamas net zo achteloos met Israëlische burgers omspringt, en dan ben je kwaad dat Nederlanders hier wijzen op de context van dat geweld.
Feestvieren om slachtparijen
Ik zag filmpjes van mensen die feestvierden vanwege de aanval van Hamas. Ik vind mensen, die juichen om dodelijke slachtoffers, nare mensen. Maar de Vrienden van Israël zijn nogal hypocriet als ze beweren dat zij nooit juichen als er Palestijnen worden gedood. Ze staan op film, de Israëlische jongeren die een soort feestje maakten van het kijken naar de Israëlische beschietingen van Gaza, applaudisserend bij elke inslag. In straatinterviews zeggen Israëliërs dat alle Arabieren moeten worden uitgegroeid, dat hun land en hun huizen eerlijk zijn veroverd in oorlogen.
En hier in Nederland viert GeenStijl feest bij dode Palestijnen, en Laurence Blik en haar vrienden, onder wie zich heel wat prominente Vrienden van Israël bevinden.
Doe niet net of je beter bent dan Hamas. Je bent net zo bloeddorstig, net zo barbaars, net zo wreed en genadeloos.
Gekoloniseerde volken
Waar Nederland nog aan moet wennen, merk ik, is dat de tijd voorbij is dat iedereen braaf ja knikte als er werd gepreekt dat lam Israël was omsingeld door bloeddorstige Arabische leeuwen die het land wilden vernietigen alléén omdat er Joden woonden. Meer pluriformiteit in het medialandschap, want Al Jazeera en sociale media, en een andere samenstelling van de bevolking dan in 1973, maken dat het “conflict” vanuit meerdere perspectieven bekeken wordt. Nazaten van gekoloniseerde volkeren en telgen van nog steeds gekoloniseerde volken zien alles in een andere context.
En je kunt boos worden en schelden en dreigen wat je wilt, met je “Hamas-vriendje” en je “antisemiet” en wat dan ook, die context hoort erbij. Je bent niet meer gezaghebbend, je bepaalt niet meer wat andere mensen denken. Je bent niet meer de baas.
EINDE
Reacties uitgeschakeld voor [Artikel Frontaal Naakt]/Hamas-vriendje
The following questions and answers (Q&A) address issues relating to international humanitarian law (the laws of war) governing current hostilities between Israel and Hamas, and other Palestinian armed groups in Gaza. The purpose is to facilitate analysis of the conduct of all parties involved in the conflict with the aim of deterring violations of the laws of war and encouraging accountability for abuses.
This Q&A focuses on international humanitarian law governing the conduct of hostilities. It does not address whether Palestinian armed groups or Israel were or are justified in their attacks or other matters concerning the legitimacy of resorting to armed force, such as under the United Nations Charter. In accordance with our institutional mandate, Human Rights Watch does not take positions on issues of jus ad bellum (law concerning acceptable justifications to use armed force); our primary goal is documenting violations of the laws of war, and encouraging all parties in armed conflict to respect the laws of war, or jus in bello.
International humanitarian law recognizes the Israeli occupation of the West Bank and Gaza as an ongoing armed conflict. Current hostilities and military attacks between Israel and Hamas and other Palestinian armed groups are governed by the conduct of hostilities standards rooted in international humanitarian law, consisting of international treaty law, most notably Common Article 3 to the Geneva Conventions of 1949 and customary international humanitarian law applicable in so-called non-international armed conflicts, which are reflected in the Additional Protocols of 1977 to the Geneva Conventions. These rules concern the methods and means of combat and fundamental protections for civilians and combatants no longer participating in hostilities for both states and non-state armed groups.
Foremost among the rules of international humanitarian law is the rule that parties to a conflict must distinguish at all times between combatants and civilians. Civilians may never be the target of attack. Warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects, such as homes, shops, schools, and medical facilities. Attacks may target only combatants and military objectives. Attacks that target civilians or fail to discriminate between combatants and civilians, or that would cause disproportionate harm to the civilian population compared to the anticipated military gain, are prohibited.
Additionally, Common Article 3 provides a number of fundamental protections for civilians and persons who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or become incapacitated. It prohibits violence against such persons – particularly murder, cruel treatment, and torture – as well as outrages against their personal dignity and degrading or humiliating treatment, and the taking of hostages.
The laws of war make no formal distinction between parties to a conflict on the basis of power imbalances or other criteria. The fundamental principles of international humanitarian law still apply. Violating them by deliberately targeting civilians or carrying out indiscriminate attacks can never be justified by pointing to the injustice of the political situation or other political or moral arguments. To permit the targeting of civilians in circumstances in which there is a disparity of power between opposing forces, as is the case in many conflicts, would create an exception that would virtually negate the rules of war.
The laws of war recognize that some civilian casualties may be inevitable during armed conflict, but impose a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives. The fundamental tenets of international humanitarian law are “civilian immunity” and the principle of “distinction.”
Combatants include members of a country’s armed forces and commanders and full-time fighters in non-state armed groups. They are subject to attack at all times during hostilities unless they are captured or incapacitated.
Civilians lose their immunity from attack when and only for such time as they are directly participating in hostilities. According to guidance by the International Committee of the Red Cross (ICRC), the laws of war distinguish between members of the organized fighting forces of a non-state party, who may be targeted during an armed conflict, and part-time fighters, who are civilians who may only be targeted when and only for such time as they are directly participating in hostilities. Similarly, reservists of national armed forces are considered civilians except when they go on duty, in which case they are combatants subject to attack. Fighters who leave the armed group, as well as regular army reservists who reintegrate into civilian life, are civilians until they are called back to active duty.
For an individual’s act to constitute direct participation in hostilities, it must imminently be capable of causing harm to opposing forces and must be deliberately carried out to support a party to the armed conflict. Direct participation in hostilities includes measures taken in preparation for executing the act, as well as deployment to and return from the location where the act is carried out.
ICRC guidance also sets out that people who have exclusively non-combat functions in armed groups, including political or administrative roles, or are merely members of or affiliated with political entities that have an armed component, such as Hamas, Islamic Jihad, or the Popular Front for the Liberation of Palestine, may not be targeted at any time unless and only for such time as they, like any other civilian, directly participate in the hostilities. That is, membership or affiliation with a Palestinian movement with an armed wing is not a sufficient basis for determining an individual to be a lawful military target.
The laws of war also protect civilian objects, which are defined as anything not considered a legitimate military objective. Prohibited are direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals and other medical facilities, schools, and cultural monuments. Civilian objects become subject to legitimate attack when they become military objectives; that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage, subject to the rules of proportionality. This would include the presence of members of armed groups or military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.
The laws of war prohibit indiscriminate attacks. Indiscriminate attacks strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.
An attack on an otherwise legitimate military target is prohibited if it would violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
Hostage-taking is prohibited in non-international armed conflicts under Article 1(b) of Common Article 3 of the Geneva Conventions and customary international humanitarian law. The ICRC Commentary on Common Article 3 defines hostage-taking as “the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release, safety or well-being of the hostage.” Hostages can include civilians and people taking no active part in hostilities, such as members of armed forces who have surrendered or who have been detained. Hostage-taking is a war crime, including under the Rome Statute of the International Criminal Court. People taken as hostages, like all held in custody, must be treated humanely, and cannot be used as human shields.
The ICRC Commentary also notes that hostages are often people, such as civilians posing no security threat, who are taken into custody and detained unlawfully. However, unlawful detention is not necessary for there to be a hostage-taking. An individual whose detention may be lawful, such as a captured soldier, could still be used as a hostage.
A threat to continue detaining someone legally held would not amount to a hostage-taking. For instance, it is not unlawful as part of a negotiation over a prisoner exchange to continue to detain someone, such as a captured combatant, whose release is not legally required. It would, however, be unlawful to make such a threat against a detained civilian unlawfully held.
Hostage-taking is prohibited regardless of the conduct that the hostage-taker aims to impose. So it is still unlawful even when seeking to compel the opposing force to cease an unlawful conduct.
International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Gaza is one of the most densely populated areas in the world.
The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population, and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, giving “effective advance warning” of attacks when circumstances permit, and refraining from an attack if the rule of proportionality will be violated. In populated areas with buildings or other structures, both above and underground, parties should take into account the difficulty of identifying civilians who may be obscured from view even from advanced surveillance technology.
Forces deployed in populated areas must, to the extent feasible, avoid locating military objectives – including fighters, ammunition, weapons, equipment, and military infrastructure – in or near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to render military forces or areas immune from attack.
At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians, including the duty to avoid causing disproportionate harm to civilians, simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. That is, the presence of a Hamas commander or rocket launcher, or other military facility in a populated area would not justify attacking the area without regard to the threatened civilian population, including the duty to distinguish combatants from civilians and the rule of proportionality.
The use of explosive weapons with wide-area effects in populated areas is one of the gravest threats to civilians in contemporary armed conflict. In addition to causing civilian casualties directly, explosive weapons with wide-area effects have frequently damaged or destroyed civilian infrastructure, such as bridges, water pipes, power stations, hospitals, and schools, causing long-term harm to civilians, including the disruption of basic services. These weapons have a wide-area effect if they have a large destructive radius, are inherently inaccurate, or deliver multiple munitions at the same time. Their use in populated areas forces people to flee their homes, exacerbating humanitarian needs.
Weapons that have a large destructive radius include those that detonate a large amount of explosive material and those that propel fragments over a large area, or both. Munitions with large amounts of explosive material can produce fragmentation that spreads unpredictably over a wide area, and a powerful blast wave that can cause severe physical injuries to the human body and physical structures, cause blunt force trauma and physical damage from flying debris, and cause or exacerbate other injuries or existing illnesses. Munitions that have preformed fragmentation warheads are designed to spread scores of fragments over an area, making it difficult or impossible to limit the effects of the weapon.
The use of explosive weapons with wide-area effects in the densely populated Gaza Strip, where 2.2 million Palestinians live in a strip of territory that is 41 kilometers (25 miles) long and between 6 and 12 kilometers (3.7 and 7.5 miles) wide, and the targeting at times of critical infrastructure, could be expected to cause serious harm to civilians and civilian objects. In addition, rockets launched from Gaza that are fundamentally inaccurate or designed to saturate a large area and are likely to strike civilians and civilian objects inside Israel, also cause foreseeable harm to civilians and civilian objects.
The laws of war require, unless circumstances do not permit, that warring parties give “effective advance warning” of attacks that may affect the civilian population. What constitutes an “effective” warning will depend on the circumstances. Such an assessment would take into account the timing of the warning and the ability of civilians to leave the area. A warning that does not give civilians adequate time to leave for a safer area would not be considered “effective.”
Civilians who do not evacuate following warnings are still fully protected by international humanitarian law. Otherwise, warring parties could use warnings to cause forced displacement, threatening civilians with deliberate harm if they did not heed them. Moreover, some civilians are unable to heed a warning to evacuate, for reasons of health, disability, fear, or lack of anyplace else to go. So, even after warnings have been given, attacking forces must still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian, or that the civilian loss would be disproportionate to the expected military gain.
The laws of war also prohibit “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” Statements that called for the evacuation of areas that are not genuine warnings, but are primarily intended to cause panic among residents or compel them to leave their homes for reasons other than their safety, would fall under this prohibition. This prohibition does not attempt to address the effects of lawful attacks, which ordinarily cause fear, but rather those threats or attacks on civilians that have this specific purpose.
Healthcare facilities are civilian objects that have special protections under the laws of war against attacks and other acts of violence including bombing, shelling, looting, forced entry, shooting into, encircling, or other forceful interference such as intentionally depriving facilities of electricity and water.
Healthcare facilities include hospitals, laboratories, clinics, first aid posts, blood transfusion centers, and the medical and pharmaceutical stores of these facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.” Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards, or when small arms from the wounded are found in the hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.
Under the laws of war, doctors, nurses, and other medical personnel must be permitted to do their work and be protected in all circumstances. They lose their protection only if they commit, outside their humanitarian function, “acts harmful to the enemy.”
Likewise, ambulances and other medical transportation must be allowed to function and be protected in all circumstances. They could lose their protection only if they are being used to commit “acts harmful to the enemy,” such as transporting ammunition or healthy fighters in service. As stated above, the attacking force must issue a warning to cease this misuse, and can only attack after such a warning goes unheeded.
Mosques and churches – like all houses of worship – and schools are presumptively civilian objects that may not be attacked unless they are being used for military purposes, such as a military headquarters or a location for storing weapons and ammunition.
The principle of proportionality also applies to these objects.
All sides were obligated to take special care in military operations to avoid damage to schools, houses of worship, and other cultural property.
As parties to the armed conflict, the armed wings of Hamas, Islamic Jihad, and other Palestinian armed groups are obligated to abide by international humanitarian law. The targeting of military installations and other military objectives is permitted under the laws of war, but only if all feasible precautions to avoid civilian harm are taken. The laws prohibit Palestinian armed groups from targeting civilians or launching indiscriminate attacks or attacks that would cause disproportionate harm to civilians compared to the expected military advantage. Commanders of Palestinian armed groups are also obligated to choose such means of attack that they could direct at military targets and minimize incidental harm to civilians. If the weapons used were so inaccurate that they could not be directed at military targets without imposing a substantial risk of civilian harm, then the group should not have deployed them.
Human Rights Watch has found in prior hostilities that rockets launched by Palestinian armed groups – including locally made short and upgraded long-range rockets, “Grad” rockets, and rockets imported from other sources – are so inaccurate as to be incapable of being aimed in a manner to discriminate between military targets and civilian objects when they were launched toward populated areas. This inaccuracy and inability to target military objectives are exacerbated at the longer ranges that some rockets were fired into Israel.
The use of such rockets against civilian areas violates the prohibition on deliberate and indiscriminate attacks. Likewise, a party that launches rockets from densely populated areas, or co-locates military objectives in or near civilian areas – thus making civilians vulnerable to counterattacks – may be failing to take all feasible precautions to protect civilians under its control against the effects of attacks.
International humanitarian law allows the targeting of military commanders in the course of armed conflict, provided that such attacks otherwise comply with the laws that protect civilians, including being proportionate. Political leaders not taking part in military operations, as civilians, would not be legitimate targets of attack.
Palestinian armed groups’ leaders who are commanding belligerent forces are legitimate targets. However, because Hamas engages in civil governance beyond its military component, merely being a Hamas leader in and of itself does not make an individual lawfully subject to military attack.
Combatants do not have immunity from attacks in their homes and workplaces. However, as with any attack on an otherwise legitimate military target, the attacking force must refrain from attack if it would disproportionately harm the civilian population – including civilian family members of combatants – or be launched in a way that fails to discriminate between combatants and civilians. Under this duty to take all feasible precautions to avoid civilian harm, the attacking force should also consider whether there may be alternative sites where the combatant can be targeted without endangering civilians.
Attacking the home of a combatant who was not physically present at the time of the attack would be an unlawful attack on a civilian object. If such an unlawful attack were carried out intentionally, then it would constitute a war crime. A civilian home does not lose its protected status as a civilian object merely because it is the home of a militant who is not present there. Insofar as the attack is designed to harm the combatants’ families, it would also be a prohibited form of collective punishment.
Personnel or equipment being used in military operations are subject to attack, but whether that justifies destroying an entire large building where they might be present depends on the attack not inflicting disproportionate harm on civilians or civilian property.
The laws of war prohibit the punishment of any person for an offense other than one that they have personally committed. Collective punishment is a term used in international law to describe any form of punitive sanctions and harassment, not limited to judicial penalties, but including sanctions of “any sort, administrative, by police action or otherwise,” that are imposed on targeted groups of persons for actions that they themselves did not personally commit. The imposition of collective punishment – such as, in violation of the laws of war, the demolition of homes of families of fighters, or other civilian objects such as multi-story buildings as a form of punishment – is a war crime. Whether an attack or measure could amount to collective punishment depends on several factors, including the target of the measure and its punitive impact, but of particular relevance is the intent behind a particular measure. If the intention was to punish, purely or primarily as a result of an act committed by third parties, then the attack is likely to have been collective punishment.
Journalists and their equipment benefit from the general protection enjoyed by civilians and civilian objects and may not be targets of an attack unless they are taking direct part in hostilities. Journalists may be subject to legitimate limitations on rights, such as freedom of expression or freedom of movement, imposed in accordance with the law and only to the extent strictly required by the exigencies of the situation. But they may not be arrested, detained, or subjected to other forms of punishment or retaliation simply for doing their work as journalists.
Radio and television facilities are civilian objects and as such enjoy general protection. Military attacks on broadcast facilities used for military communications are legitimate under the laws of war, but such attacks on civilian television or radio stations are otherwise prohibited because they are protected civilian structures and not legitimate military targets. Moreover, if the attack is designed primarily to undermine civilian morale or to psychologically harass the civilian population, that is also a prohibited war purpose. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective; that is, if they are used in a way that makes an “effective contribution to military action,” and their destruction in the circumstances ruling at the time offers “a definite military advantage.” Specifically, Hamas-operated civilian broadcast facilities could become military targets if, for example, they were used to send military orders or otherwise concretely to advance Hamas’s armed campaign against Israel. However, civilian broadcasting facilities are not rendered legitimate military targets simply because they are pro-Hamas or anti-Israel, or report on the laws of war violations by one side or the other. Just as it is unlawful to attack the civilian population to lower its morale, it is unlawful to attack news outfits that merely shape civilian opinion by their reporting or create diplomatic pressure; neither directly contributes to military operations.
Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that Israeli forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated definite military advantage. They should take special precautions in relation to buildings located in urban areas, including giving advance warning of an attack whenever possible.
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allow relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to ensure that consignments do not include weapons or other military materiel. However, deliberately impeding relief supplies is prohibited.
In addition, international humanitarian law requires that belligerent parties ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.
International human rights law is applicable at all times, including during armed conflict situations in which the laws of war apply, as well as during times of peace. Israel and Palestine are party to core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These treaties outline guarantees for fundamental rights, many of which correspond to the protections to which civilians are entitled under international humanitarian law (such as the prohibition of torture, inhuman and degrading treatment, nondiscrimination, right to a fair trial).
While the ICCPR permits some restrictions on certain rights during an officially proclaimed public emergency that “threatens the life of the nation,” any derogation of rights during a public emergency must be of an exceptional and temporary nature, and must be “limited to the extent strictly required by the exigencies of the situation,” and should not involve discrimination on grounds of race, religion, and other grounds. Certain fundamental rights – such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and the right to a fair trial – must always be respected, even during a public emergency.
Serious violations of the laws of war that are committed with criminal intent are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses, including deliberate, indiscriminate, and disproportionate attacks harming civilians, hostage-taking, using human shields, and imposing collective punishments, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.
Responsibility also may fall on persons planning or instigating the commission of a war crime. In addition, commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
States have an obligation to investigate and fairly prosecute individuals within their territory implicated in war crimes.
Alleged war crimes committed during the fighting between Israel and Palestinian armed groups could be investigated by the International Criminal Court (ICC) prosecutor. On March 3, 2021, the ICC prosecutor opened an investigation into alleged serious crimes committed in Palestine since June 13, 2014. The ICC treaty officially went into effect for Palestine on April 1, 2015. The court’s judges have said this gives it jurisdiction over the territory occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide, committed in this territory, regardless of the nationality of the alleged perpetrators.
Israel signed but has not ratified the ICC treaty, and in 2002 announced that it did not intend to become a member of the court.
Since 2016, Human Rights Watch has called on the ICC prosecutor to pursue a formal Palestine investigation given strong evidence that serious crimes have been committed there and the pervasive climate of impunity for those crimes. The recent hostilities between Hamas and Israel highlight the importance of the court’s investigation and the urgent need for justice to address serious crimes committed in Palestine. Human Rights Watch has also called on the ICC prosecutor to investigate Israeli authorities implicated in the crimes against humanity of apartheid and persecution against Palestinians.
Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of a country’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals. Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, obligate states to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that countries are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.
National judicial officials should investigate and prosecute those credibly implicated in serious crimes, under the principle of universal jurisdiction and in accordance with national laws.
In May 2021, the United Nations Human Rights Council established an ongoing Commission of Inquiry to address violations and abuses in the Occupied Palestinian Territory and in Israel, to monitor, document, and report on violations and abuses of international law, advance accountability for perpetrators and justice for victims, and address the root causes and systematic oppression that help fuel continued violence.
Reacties uitgeschakeld voor Human Rights Watch: Questions and answers: October 2023 hostilities between Israel and Armed Palestinian Groups
”The Israeli government’s plan to remove troops and Jewish settlements from the Gaza Strip would not end Israel’s occupation of the territory. As an occupying power, Israel will retain responsibility for the welfare of Gaza’s civilian population.
Under the “disengagement” plan endorsed Tuesday by the Knesset, Israeli forces will keep control over Gaza’s borders, coastline and airspace, and will reserve the right to launch incursions at will. Israel will continue to wield overwhelming power over the territory’s economy and its access to trade.”
Israeli Government Still Holds Responsibility for Welfare of Civilians
The Israeli government’s plan to remove troops and Jewish settlements from the Gaza Strip would not end Israel’s occupation of the territory. As an occupying power, Israel will retain responsibility for the welfare of Gaza’s civilian population.
Under the “disengagement” plan endorsed Tuesday by the Knesset, Israeli forces will keep control over Gaza’s borders, coastline and airspace, and will reserve the right to launch incursions at will. Israel will continue to wield overwhelming power over the territory’s economy and its access to trade.
“The removal of settlers and most military forces will not end Israel’s control over Gaza,” said Sarah Leah Whitson, Executive Director of Human Rights Watch’s Middle East and North Africa Division. “Israel plans to reconfigure its occupation of the territory, but it will remain an occupying power with responsibility for the welfare of the civilian population.”
Under the plan, Israel is scheduled to remove settlers and military bases protecting the settlers from the Gaza Strip and four isolated West Bank Jewish settlements by the end of 2005. The Israeli military will remain deployed on Gaza’s southern border, and will reposition its forces to other areas just outside the territory.
In addition to controlling the borders, coastline and airspace, Israel will continue to control Gaza’s telecommunications, water, electricity and sewage networks, as well as the flow of people and goods into and out of the territory. Gaza will also continue to use Israeli currency.
A World Bank study on the economic effects of the plan determined that “disengagement” would ease restrictions on mobility inside Gaza. But the study also warned that the removal of troops and settlers would have little positive effect unless accompanied by an opening of Gaza’s borders. If the borders are sealed to labor and trade, the plan “would create worse hardship than is seen today.”
The plan also explicitly envisions continued home demolitions by the Israeli military to expand the “buffer zone” along the Gaza-Egypt border. According to a report released last week by Human Rights Watch, the Israeli military has illegally razed nearly 1,600 homes since 2000 to create this buffer zone, displacing some 16,000 Palestinians. Israeli officials have called for the buffer zone to be doubled, which would result in the destruction of one-third of the Rafah refugee camp.
In addition, the plan states that disengagement “will serve to dispel the claims regarding Israel’s responsibility for the Palestinians in the Gaza Strip.” A report by legal experts from the Israeli Justice Ministry, Foreign Ministry and the military made public on Sunday, however, reportedly acknowledges that disengagement “does not necessarily exempt Israel from responsibility in the evacuated territories.”
If Israel removes its troops from Gaza, the Palestinian National Authority will maintain responsibility for security within the territory—to the extent that Israel allows Palestinian police the authority and capacity. Palestinian security forces will still have a duty to protect civilians within Gaza and to prevent indiscriminate attacks on Israeli civilians.
“Under international law, the test for determining whether an occupation exists is effective control by a hostile army, not the positioning of troops,” Whitson said. “Whether the Israeli army is inside Gaza or redeployed around its periphery and restricting entrance and exit, it remains in control.”
Under international law, the duties of an occupying power are detailed in the Fourth Geneva Convention and The Hague Regulations. According to The Hague Regulations, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
The “disengagement plan,” as adopted by the Israeli Cabinet on June 6, 2004, and endorsed by the Knesset on October 26, is available at:
Israel’s Obligations to Gaza under International Law
Israeli authorities claim “broad powers and discretion to decide who may enter its territory” and that “a foreigner has no legal right to enter the State’s sovereign territory, including for the purposes of transit into the [West Bank] or aboard.” While international human rights law gives wide latitude to governments with regard to entry of foreigners, Israel has heightened obligations toward Gaza residents. Because of the continuing controls Israel exercises over the lives and welfare of Gaza’s inhabitants, Israel remains an occupying power under international humanitarian law, despite withdrawing its military forces and settlements from the territory in 2005”
(Gaza) – Israel’s sweeping restrictions on leaving Gaza deprive its more than two million residents of opportunities to better their lives, Human Rights Watch said today on the fifteenth anniversary of the 2007 closure. The closure has devastated the economy in Gaza, contributed to fragmentation of the Palestinian people, and forms part of Israeli authorities’ crimes against humanity of apartheid and persecution against millions of Palestinians.
Israel’s closure policy blocks most Gaza residents from going to the West Bank, preventing professionals, artists, athletes, students, and others from pursuing opportunities within Palestine and from traveling abroad via Israel, restricting their rights to work and an education. Restrictive Egyptian policies at its Rafah crossing with Gaza, including unnecessary delays and mistreatment of travelers, have exacerbated the closure’s harm to human rights.
“Israel, with Egypt’s help, has turned Gaza into an open-air prison,” said Omar Shakir, Israel and Palestine director at Human Rights Watch. “As many people around the world are once again traveling two years after the start of the Covid-19 pandemic, Gaza’s more than two million Palestinians remain under what amounts to a 15-year-old lockdown.”
Israel should end its generalized ban on travel for Gaza residents and permit free movement of people to and from Gaza, subject to, at most, individual screening and physical searches for security purposes.
Between February 2021 and March 2022, Human Rights Watch interviewed 20 Palestinians who sought to travel out of Gaza via either the Israeli-run Erez crossing or the Egyptian-administered Rafah crossing. Human Rights Watch wrote to Israeli and Egyptian authorities to solicit their perspectives on its findings, and separately to seek information about an Egyptian travel company that operates at the Rafah crossing but had received no responses at this writing.
Since 2007, Israeli authorities have, with narrow exceptions, banned Palestinians from leaving through Erez, the passenger crossing from Gaza into Israel, through which they can reach the West Bank and travel abroad via Jordan. Israel also prevents Palestinian authorities from operating an airport or seaport in Gaza. Israeli authorities also sharply restrict the entry and exit of goods.
They often justify the closure, which came after Hamas seized political control over Gaza from the Fatah-led Palestinian Authority in June 2007, on security grounds. Israeli authorities have said they want to minimize travel between Gaza and the West Bank to prevent the export of “a human terrorist network” from Gaza to the West Bank, which has a porous border with Israel and where hundreds of thousands of Israeli settlers live.
This policy has reduced travel to a fraction of what it was two decades ago, Human Rights Watch said. Israeli authorities have instituted a formal “policy of separation” between Gaza and the West Bank, despite international consensus that these two parts of the Occupied Palestinian Territory form a “single territorial unit.” Israel accepted that principle in the 1995 Oslo Accords, signed with the Palestine Liberation Organization. Israeli authorities restrict all travel between Gaza and the West Bank, even when the travel takes place via the circuitous route through Egypt and Jordan rather than through Israeli territory.
Due to these policies, Palestinian professionals, students, artists, and athletes living in Gaza have missed vital opportunities for advancement not available in Gaza. Human Rights Watch interviewed seven people who said that Israeli authorities did not respond to their requests for travel through Erez, and three others who said Israel rejected their permits, apparently for not fitting within Israeli’s narrow criteria.
Walaa Sada, 31, a filmmaker, said that she applied for permits to take part in film training in the West Bank in 2014 and 2018, after spending years convincing her family to allow her to travel alone, but Israeli authorities never responded to her applications. The hands-on nature of the training, requiring filming live scenes and working in studios, made remote participation impracticable and Sada ended up missing the sessions.
The “world narrowed” when she received these rejections, Sada said, making her feel “stuck in a small box.… For us in Gaza, the hands of the clock stopped. People all over the world can easily and quickly book flight and travel, while we … die waiting for our turn.”
The Egyptian authorities have exacerbated the closure’s impact by restricting movement out of Gaza and at times fully sealing its Rafah border crossing, Gaza’s only outlet aside from Erez to the outside world. Since May 2018, Egyptian authorities have been keeping Rafah open more regularly, making it, amid the sweeping Israeli restrictions, the primary outlet to the outside world for Gaza residents.
Palestinians, however, still face onerous obstacles traveling through Egypt, including having to wait weeks for permission to travel, unless they are willing to pay hundreds of dollars to travel companies with significant ties to Egyptian authorities to expedite their travel, denials of entry, and abuse by Egyptian authorities.
Sada said also received an opportunity to participate in a workshop on screenwriting in Tunisia in 2019, but that she could not afford the US$2000 it would cost her to pay for the service that would ensure that she could travel on time. Her turn to travel came up six weeks later, after the workshop had already been held.
As an occupying power that maintains significant control over many aspects of life in Gaza, Israel has obligations under international humanitarian law to ensure the welfare of the population there. Palestinians also have the right under international human rights law to freedom of movement, in particular within the occupied territory, a right that Israel can restrict under international law only in response to specific security threats.
Israel’s policy, though, presumptively denies free movement to people in Gaza, with narrow exceptions, irrespective of any individualized assessment of the security risk a person may pose. These restrictions on the right to freedom of movement do not meet the requirement of being strictly necessary and proportionate to achieve a lawful objective. Israel has had years and many opportunities to develop more narrowly tailored responses to security threats that minimize restrictions on rights.
Egypt’s legal obligations toward Gaza residents are more limited, as it is not an occupying power. However, as a state party to the Fourth Geneva Convention, it should ensure respect for the convention “in all circumstances,” including protections for civilians living under military occupation who are unable to travel due to unlawful restrictions imposed by the occupying power. The Egyptian authorities should also consider the impact of their border closure on the rights of Palestinians living in Gaza who are unable to travel in and out of Gaza through another route, including the right to leave a country.
Egyptian authorities should lift unreasonable obstacles that restrict Palestinians’ rights and allow transit via its territory, subject to security considerations, and ensure that their decisions are transparent and not arbitrary and take into consideration the human rights of those affected.
“The Gaza closure blocks talented, professional people, with much to give their society, from pursuing opportunities that people elsewhere take for granted,” Shakir said. “Barring Palestinians in Gaza from moving freely within their homeland stunts lives and underscores the cruel reality of apartheid and persecution for millions of Palestinians.”
Israel’s Obligations to Gaza under International Law
Israeli authorities claim “broad powers and discretion to decide who may enter its territory” and that “a foreigner has no legal right to enter the State’s sovereign territory, including for the purposes of transit into the [West Bank] or aboard.” While international human rights law gives wide latitude to governments with regard to entry of foreigners, Israel has heightened obligations toward Gaza residents. Because of the continuing controls Israel exercises over the lives and welfare of Gaza’s inhabitants, Israel remains an occupying power under international humanitarian law, despite withdrawing its military forces and settlements from the territory in 2005. Both the UN and the International Committee of the Red Cross, the guardians of international humanitarian law, have reached this determination. As the occupying power, Israel remains bound to provide residents of Gaza the rights and protections afforded to them by the law of occupation. Israeli authorities continue to control Gaza’s territorial waters and airspace, and the movement of people and goods, except at Gaza’s border with Egypt. Israel also controls the Palestinian population registry and the infrastructure upon which Gaza relies.
Israel has an obligation to respect the human rights of Palestinians living in Gaza, including their right to freedom of movement throughout the Occupied Palestinian Territory and abroad, which affects both the right to leave a country and the right to enter their own country. Israel is also obligated to respect Palestinians’ rights for which freedom of movement is a precondition, for example the rights to education, work, and health. The UNHuman Rights Committee has said that while states can restrict freedom of movement for security reasons or to protect public health, public order, and the rights of others, any such restrictions must be proportional and “the restrictions must not impair the essence of the right; the relation between the right and restriction, between norm and exception, must not be reversed.”
While the law of occupation permits occupying powers to impose security restrictions on civilians, it also requires them to restore public life for the occupied population. That obligation increases in a prolonged occupation, in which the occupier has more time and opportunity to develop more narrowly tailored responses to security threats that minimize restrictions on rights. In addition, the needs of the occupied population increase over time. Suspending virtually all freedom of movement for a short period interrupts temporarily normal public life, but long-term, indefinite suspension in Gaza has had a much more debilitating impact, fragmentating populations, fraying familial and social ties, compoundingdiscrimination against women, and blocking people from pursuing opportunities to improve their lives.
The impact is particularly damaging given the denial of freedom of movement to people who are confined to a sliver of the occupied territory, unable to interact in person with the majority of the occupied population that lives in the West Bank, including East Jerusalem, and its rich assortment of educational, cultural, religious, and commercial institutions.
After 55 years of occupation and 15 years of closure in Gaza with no end in sight, Israel should fully respect the human rights of Palestinians, using as a benchmark the rights it grants Israeli citizens. Israel should abandon an approach that bars movement absent exceptional individual humanitarian circumstances it defines, in favor of an approach that permits free movement absent exceptional individual security circumstances.
Israel’s Closure
Most Palestinians who grew up in Gaza under this closure have never left the 40-by-11 kilometer (25-by-7 mile) Gaza Strip. For the last 25 years, Israel has increasingly restricted the movement of Gaza residents. Since June 2007, when Hamas seized control over Gaza from the Fatah-led Palestinian Authority (PA), Gaza has been mostly closed.
Israeli authorities justify this closure on security grounds, in light of “Hamas’ rise to power in the Gaza Strip,” as they lay out in a December 2019 court filing. Authorities highlight in particular the risk that Hamas and armed Palestinian groups will recruit or coerce Gaza residents who have permits to travel via Erez “for the commission of terrorist acts and the transfer of operatives, knowledge, intelligence, funds or equipment for terrorist activists.” Their policy, though, amounts to a blanket denial with rare exceptions, rather than a generalized respect for the right of Palestinians to freedom of movement, to be denied only on the basis of individualized security reasons.
The Israeli army has since 2007 limited travel through the Erez crossing except in what it deems “exceptional humanitarian circumstances,” mainly encompassing those needing vital medical treatment outside Gaza and their companions, although the authorities also make exceptions for hundreds of businesspeople and laborers and some others. Israel has restricted movement even for those seeking to travel under these narrowexceptions, affecting their rights to health and life, among others, as Human Rights Watch and other groups have documented. Most Gaza residents do not fit within these exemptions to travel through Erez, even if it is to reach the West Bank.
Between January 2015 and December 2019, before the onset of Covid-19 restrictions, an average of about 373 Palestinians left Gaza via Erez each day, less than 1.5 percent of the daily average of 26,000 in September 2000, before the closure, according to the Israeli rights group Gisha. Israeli authorities tightened the closure further during the Covid-19 pandemic – between March 2020 and December 2021, an average of about 143 Palestinians left Gaza via Erez each day, according to Gisha.
Israeli authorities announced in March 2022 that they would authorize 20,000 permits for Palestinians in Gaza to work in Israel in construction and agriculture, though Gisha reports that the actual number of valid permits in this category stood at 9,424, as of May 22.
Israeli authorities have also for more than two decades sharply restricted the use by Palestinians of Gaza’s airspace and territorial waters. They blocked the reopening of the airport that Israeli forces made inoperable in January 2002, and prevented the Palestinian authorities from building a seaport, leaving Palestinians dependent on leaving Gaza by land to travel abroad. The few Palestinians permitted to cross at Erez are generally barred from traveling abroad via Israel’s international airport and must instead travel abroad via Jordan. Palestinians wishing to leave Gaza via Erez, either to the West Bank or abroad, submit requests through the Palestinian Civil Affairs Committee in Gaza, which forwards applications to Israeli authorities who decide on whether to grant a permit.
Separation Between Gaza and the West Bank
As part of the closure, Israeli authorities have sought to “differentiate” between their policy approaches to Gaza and the West Bank, such as imposing more sweeping restrictions on the movement of people and goods from Gaza to the West Bank, and promote separation between these two parts of the Occupied Palestinian Territory. The army’s “Procedure for Settlement in the Gaza Strip by Residents of Judea and Samaria,” published in 2018, states that “in 2006, a decision was made to introduce a policy of separation between the Judea and Samaria Area [the West Bank] and the Gaza Strip in light of Hamas’ rise to power in the Gaza Strip. The policy currently in effect is explicitly aimed at reducing travel between the areas.”
In each of the 11 cases Human Rights Watch reviewed of people seeking to reach the West Bank, including East Jerusalem, for professional and educational opportunities not available in Gaza, Israeli authorities did not respond to requests for permits or denied them, either for security reasons or because they did not conform to the closure policy. Human Rights Watch also reviewed permit applications on the website of the Palestinian Civil Affairs Committee, or screenshots of it, including the status of the permit applications, when they were sent on to the Israeli authorities and the response received, if any.
Raed Issa, a 42-year-old artist, said that the Israeli authorities did not respond to his application for a permit in early December 2015, to attend an exhibit of his art at a Ramallah art gallery between December 27 and January 16, 2016.
The “Beyond the Dream” exhibit sought to highlight the situation in Gaza after the 2014 war. Issa said that the Palestinian Civil Affairs committee continued to identify the status of his application as “sent and waiting for response” and he ended up having to attend the opening of the exhibit virtually. Issa felt that not being physically present hampered his ability to engage with audiences, and to network and promote his work, which he believes limited his reach and hurt sales of his artwork. He described feeling pained “that I am doing my own art exhibit in my homeland and not able to attend it, not able to move freely.”
Ashraf Sahweel, 47, chairman of the Board of Directors of the Gaza Center for Art and Culture, said that Gaza-based artists routinely do not hear back after applying for Israeli permits, forcing them to miss opportunities to attend exhibitions and other cultural events. A painter himself, he applied for seven permits between 2013 and 2022, but Israeli authorities either did not respond or denied each application, he said. Sahweel said that he has “given up hope on the possibility to travel via Erez.”
Palestinian athletes in Gaza face similar restrictions when seeking to compete with their counterparts in the West Bank, even though the Israeli army guidelines specifically identify “entry of sportspeople” as among the permissible exemptions to the closure. The guidelines, updated in February 2022, set out that “all Gaza Strip residents who are members of the national and local sports teams may enter Israel in transit to the Judea and Samaria area [West Bank] or abroad for official activities of the teams.”
Hilal al-Ghawash, 25, told Human Rights Watch that his football team, Khadamat Rafah, had a match in July 2019 with a rival West Bank team, the Balata Youth Center, in the finals of Palestine Club, with the winner entitled to represent Palestine in the Asian Cup. The Palestinian Football Federation applied for permits for the entire 22-person team and 13-person staff, but Israeli authorities, without explanation, granted permits to only 4 people, only one of whom was a player. The game was postponed as a result.
After Gisha appealed the decision in the Jerusalem District Court, Israeli authorities granted 11 people permits, including six players, saying the other 24 were denied on security grounds that were not specified. Al-Ghawash was among the players who did not receive a permit. The Jerusalem district court upheld the denials. With Khadamat Rafah prevented from reaching the West Bank, the Palestine Football Federation canceled the Palestine Cup finals match.
Al-Ghawash said that West Bank matches hold particular importance for Gaza football players, since they offer the opportunity to showcase their talents for West Bank clubs, which are widely considered superior to those in Gaza and pay better. Despite the cancellation, al-Ghawash said, the Balata Youth Center later that year offered him a contract to play for them. The Palestinian Football Federation again applied for a permit on al-Ghawash’s behalf, but he said he did not receive a response and was unable to join the team.
In 2021, al-Ghawash signed a contract with a different West Bank team, the Hilal al-Quds club. The Palestinian Football Federation again applied, but this time, the Israeli army denied the permit on unspecified security grounds. Al-Ghawash said he does not belong to any armed group or political movement and has no idea on what basis Israeli authorities denied him a permit.
Missing these opportunities has forced al-Ghawash to forgo not only higher pay, but also the chance to play for more competitive West Bank teams, which could have brought him closer to his goal of joining the Palestinian national team. “There’s a future in the West Bank, but, here in Gaza, there’s only a death sentence,” he said. “The closure devastates players’ future. Gaza is full of talented people, but it’s so difficult to leave.”
Palestinian students and professionals are frequently unable to obtain permits to study or train in the West Bank. In 2016, Augusta Victoria Hospital in East Jerusalem agreed to have 10 physics students from Al-Azhar University in Gaza come to the hospital for a six-month training program. Israeli authorities denied five students permits without providing a rationale, two of the students said.
The five other students initially received permits valid for only 14 days, and then encountered difficulties receiving subsequent permits. None were able to complete the full program, the two students said. One, Mahmoud Dabour, 28, said that when he applied for a second permit, he received no response. Two months later, he applied again and managed to get a permit valid for one week. He received one other permit, valid for 10 days, but then, when he returned and applied for the fifth time, Israeli authorities rejected his permit request without providing a reason. As a result, he could not finish the training program, and, without the certification participants receive upon completion, he said, he cannot apply for jobs or attend conferences or workshops abroad in the field.
Dabour said that the training cannot be offered in Gaza, since the necessary radiation material required expires too quickly for it to be functional after passing through the time-consuming Israeli inspections of materials entering the Gaza Strip. There are no functioning devices of the kind that students need for the training in Gaza, Dabour said.
One of the students whose permit was denied said, “I feel I studied for five years for nothing, that my life has stopped.” The student asked that his name be withheld for his security.
Two employees of Zimam, a Ramallah-based organization focused on youth empowerment and conflict resolution, said that the Israeli authorities repeatedly denied them permits to attend organizational training and strategy meetings. Atta al-Masri, the 31-year-old Gaza regional director, said he has applied four times for permits, but never received one. Israeli authorities did not respond the first three times and, the last time in 2021, denied him a permit on the grounds that it was “not in conformity” with the permissible exemptions to the closure. He has worked for Zimam since 2009, but only met his colleagues in person for the first time in Egypt in March 2022.
Ahed Abdullah, 29, Zimam’s youth programs coordinator in Gaza, said she applied twice for permits in 2021, but Israeli authorities denied both applications on grounds of “nonconformity:”
This is supposed to be my right. My simplest right. Why did they reject me? My colleagues who are outside Palestine managed to make it, while I am inside Palestine, I wasn’t able to go to the other part of Palestine … it’s only 2-3 hours from Gaza to Ramallah, why should I get the training online? Why am I deprived of being with my colleagues and doing activities with them instead of doing them in dull breakout rooms on Zoom?
Human Rights Watch has previously documented that the closure has prevented specialists in the use of assistive devices for people with disabilities from opportunities for hands-on training on the latest methods of evaluation, device maintenance, and rehabilitation. Human Rights Watch also documented restrictions on the movement of human rights workers. Gisha, the Israeli human rights group, has reported that Israel has blocked health workers in Gaza from attending training in the West Bank on how to operate new equipment and hampered the work of civil society organizations operating in Gaza.
Israeli authorities have also made it effectively impossible for Palestinians from Gaza to relocate to the West Bank. Because of Israeli restrictions, thousands of Gaza residents who arrived on temporary permits and now live in the West Bank are unable to gain legal residency. Although Israel claims that these restrictions are related to maintaining security, evidence Human Rights Watch collected suggests the main motivation is to control Palestinian demography across the West Bank, whose land Israel seeks to retain, in contrast to the Gaza Strip.
Egypt
With most Gaza residents unable to travel via Erez, the Egyptian-administered Rafah crossing has become Gaza’s primary outlet to the outside world, particularly in recent years. Egyptian authorities kept Rafah mostly closed for nearly five years following the July 2013 military coup in Egypt that toppled President Mohamed Morsy, whom the military accused of receiving support from Hamas. Egypt, though, eased restrictions in May 2018, amid the Great March of Return, the recurring Palestinian protests at the time near the fences separating Gaza and Israel.
Despite keeping Rafah open more regularly since May 2018, movement via Rafah is a fraction of what it was before the 2013 coup in Egypt. Whereas an average of 40,000 crossed monthly in both directions before the coup, the monthly average was 12,172 in 2019 and 15,077 in 2021, according to Gisha.
Human Rights Watch spoke with 16 Gaza residents who sought to travel via Rafah. Almost all said they opted for this route because of the near impossibility of receiving an Israeli permit to travel via Erez.
Gaza residents hoping to leave via Rafah are required to register in advance via a process the UN Office for the Coordination of Humanitarian Affairs (OCHA) has deemed “confusing” and “obscure.” Gaza residents can either register via the formal registration process administered by Gaza’s Interior Ministry or informally via what is known as tanseeq,or travel coordination with Egyptian authorities, paying travel companies or mediators for a place on a separate list coordinated by Egyptian authorities. Having two distinct lists of permitted travelers coordinated by different authorities has fueled “allegations of the payment of bribes in Gaza and in Egypt to ensure travel and a faster response,” according to OCHA.
The formal process often takes two to three months, except for those traveling for medical reasons, whose requests are processed faster, said Gaza residents who sought to leave Gaza via Rafah. Egyptian authorities have at times rejected those seeking to cross Rafah into Egypt on the grounds that they did not meet specific criteria for travel. The criteria lack transparency, but Gisha reported that they include having a referral for a medical appointment in Egypt or valid documents to enter a third country.
To avoid the wait and risk of denial, many choose instead the tanseeqroute. Several interviewees said that they paid large sums of money to Palestinian brokers or Gaza-based travel companies that work directly with Egyptian authorities to expedite people’s movement via Rafah. On social media, some of these companies advertise that they can assure travel within days to those who provide payment and a copy of their passport. The cost of tanseeq has fluctuated from several hundred US dollars to several thousand dollars over the last decade, based in part on how frequently Rafah is open.
In recent years, travel companies have offered an additional “VIP” tanseeq, which expedites travel without delays in transit between Rafah and Cairo, offers flexibility on travel date, and ensures better treatment by authorities. The cost was $700, as of January 2022.
The Cairo-based company offering the VIP tanseeq services, Hala Consulting and Tourism Services, has strong links with Egypt’s security establishment and is staffed largely by former Egyptian military officers, a human rights activist and a journalist who have investigated these issues told Human Rights Watch. This allows the company to reduce processing times and delays at checkpoints during the journey between Rafah and Cairo. The activist and journalist both asked that their names be withheld for security reasons.
The company is linked to prominent Egyptian businessman Ibrahim El-Argani, who has close ties with Egypt’s president, Abdel-Fattah al-Sisi. Ergany heads the Union of Sinai Tribes, which works hand-in-hand with the Egyptian military and intelligence agencies against militants operating in North Sinai. Ergany, one of Egypt’s few businessmen able to export products to Gaza from Egypt, owns the Sinai Sons company, which has an exclusive contract to handle all contracts related to Gaza reconstruction efforts. Human Rights Watch wrote to El-Argani to solicit his perspectives on these issues, but had received no response at this writing.
A 34-year-old computer engineer and entrepreneur said that he sought to travel in 2019 to Saudi Arabia to meet an investor to discuss a potential project to sell car parts online. He chose not to apply to travel via Erez, as he had applied for permits eight times between 2016 and 2018 and had either been rejected or not heard back.
He initially registered via the formal Ministry of Interior process and received approval to travel after three months. However, on the day assigned for his exit via Rafah, an Egyptian officer there said he found his reason for travel not sufficiently “convincing” and denied him passage. A few months later, he tried to travel again for the same purpose, this time opting for tanseeq and paying $400, and, this time, he successfully reached Saudi Arabia within a week of seeking to travel.
He said that he would like to go on vacation with his wife, but worries that Egyptian authorities will not consider vacation a sufficiently compelling reason for travel and that his only option will be to pay hundreds or thousands of dollars to do tanseeq.
A 73-year-old man sought to travel via Rafah in February 2021, with his 46-year-old daughter, to get knee replacement surgery in al-Sheikh Zayed hospital in Cairo. He said Gaza lacks the capacity to provide such an operation. The man and his daughter are relatives of a Human Rights Watch staff member. They applied via the Interior Ministry process and received approval in a little over a week.
After they waited for several hours in the Egyptian hall in Rafah on the day of travel, though, Egyptian authorities included the daughter’s name among the 70 names of people who were not allowed to cross that day, the daughter said. The father showed the border officials a doctor’s note indicating that he needed someone to travel with him given his medical situation, but the officer told him, “You either travel alone or go back with her to Gaza.” She said she returned to Gaza, alongside 70 other people, and her father later traveled on his own.
Five people who did manage to travel via Rafah said that they experienced poor conditions and poor treatment, including intrusive searches, by the Egyptian authorities, with several saying that they felt Egyptian authorities treated them like “criminals.” Several people said that Egyptian officers confiscated items from them during the journey, including an expensive camera and a mobile phone, without apparent reason.
Upon leaving Rafah, Palestinians are transported by bus to Cairo’s airport. The trip takes about seven hours, but several people said that the journey took up to three days between long periods of waiting on the bus, at checkpoints and amid other delays, often in extreme weather. Many of those who traveled via Rafah said that, during this journey, Egyptian authorities prevented passengers from using their phones.
The parents of a 7-year-old boy with autism and a rare brain disease said they sought to travel for medical treatment for him in August 2021, but Egyptian authorities only allowed the boy and his mother to enter. The mother said their journey back to Gaza took four days, mostly as a result of Rafah being closed. During this time, she said, they spent hours waiting at checkpoints, in extreme heat, with her son crying nonstop. She said she felt “humiliated” and treated like “an animal,” observing that she “would rather die than travel again through Rafah.”
A 33-year-old filmmaker, who traveled via Rafah to Morocco in late 2019 to attend a film screening, said the return from Cairo to Rafah took three days, much of it spent at checkpoints amid the cold winter in the Sinai desert.
A 34-year-old man said that he planned to travel in August 2019 via Rafah to the United Arab Emirates for a job interview as an Arabic teacher. He said, on his travel date, Egyptian authorities turned him back, saying they had met their quota of travelers. He crossed the next day, but said that, as it was a Thursday and with Rafah closed on Friday, Egyptian authorities made travelers spend two nights sleeping at Rafah, without providing food or access to a clean bathroom.
The journey to Cairo airport then took two days, during which he described going through checkpoints where officers made passengers “put their hands behind their backs while they searched their suitcases.” As a result of these delays totaling four days since his assigned travel date, he missed his job interview and found out that someone else was hired. He is currently unemployed in Gaza.
Given the uncertainty of crossing at Rafah, Gaza residents said that they often wait to book their flight out of Cairo until they arrive. Booking so late often means, beyond other obstacles, having to wait until they can find a reasonably priced and suitable flight, planning extra days for travel and spending extra money on changeable or last-minute tickets. Similar dynamics prevail with regard to travel abroad via Erez to Amman.
Human Rights Watch interviewed four men under the age of 40 with visas to third countries, whom Egyptian authorities allowed entry only for the purpose of transit. The authorities transported these men to Cairo airport and made them wait in what is referred to as the “deportation room” until their flight time. The men likened the room to a “prison cell,” with limited facilities and unsanitary conditions. All described a system in which bribes are required to be able to leave the room to book a plane ticket, get food, drinks, or a cigarette, and avoid abuse. One of the men described an officer taking him outside the room, asking him, “Won’t you give anything to Egypt?” and said that others in the room told him that he then proceeded to do the same with them
EINDE ARTIKEL
”“Israel has the responsibility as the Occupying Power to protect the civilian population. But instead of allowing a healthy people and economy to flourish, Israeli authorities have sealed off the Gaza Strip”
GENEVA, 14 June 2013 – The United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Richard Falk, called today on Israel to end its blockade over the Gaza Strip, six years after it was tightened following the Hamas takeover in June 2007. The human suffering of the land, sea and air blockade imposed on the 1.75 million Palestinians living in one of the most densely populated and impoverished areas of the world has been devastating.
“Six years of Israel’s calculated strangulation of the Gaza Strip has stunted the economy and has kept most Gazans in a state of perpetual poverty and aid dependency,” said the UN expert. “Whether it is fishermen unable to go beyond six nautical miles from the shore, farmers unable to access their land near the Israeli fence, businessmen suffering from severe restrictions on the export of goods, students denied access to education in the West Bank, or patients in need of urgent medical attention refused access to Palestinian hospitals in the West Bank, the destructive designs of blockade have been felt by every single household in Gaza. It is especially felt by Palestinian families separated by the blockade,” he added.
“The people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel’s collective punishment of the civilian population in Gaza must end today,” said the Special Rapporteur.
“Israel has the responsibility as the Occupying Power to protect the civilian population. But instead of allowing a healthy people and economy to flourish, Israeli authorities have sealed off the Gaza Strip. According to statistics released by the Israeli Ministry of Defense, last month’s exports out of Gaza consisted of 49 truckloads of empty boxes, three truckloads of spices, one truckload of cut flowers, and one truckload of furniture,” he said. In 2012, the total number of truckloads of exports leaving Gaza was 254, compared to 9,787 in 2005 before the tightening of the blockade.
“It does not take an economist to figure out that such a trickle of goods out of Gaza is not the basis of a viable economy,” noted the UN expert. “The easing of the blockade announced by Israel in June 2010 after its deadly assault on the flotilla of ships carrying aid to the besieged population resulted only in an increase in consumer goods entering Gaza, and has not improved living conditions for most Gazans. Since 2007, the productive capacity of Gaza has dwindled with 80 percent of factories in Gaza now closed or operating at half capacity or less due to the loss of export markets and prohibitively high operating costs as a result of the blockade. 34 percent of Gaza’s workforce is unemployed including up to half the youth population, 44 percent of Gazans are food insecure, 80 percent of Gazans are aid recipients,” he said.
“To make matters worse, 90 percent of the water from the Gaza aquifer is unsafe for human consumption without treatment, and severe fuel and electricity shortage results in outages of up to 12 hours a day. Only a small proportion of Gazans who can afford to obtain supplies through the tunnel economy are buffered from the full blow of the blockade, but tunnels alone cannot meet the daily needs of the population in Gaza.”
“Last year, the United Nations forecast that under existing conditions, Gaza would be uninhabitable by 2020. Less optimistic forecasts presented to me were that the Gaza Strip may no longer be viable only three years from now,” said the Special Rapporteur. “It’s clear that the Israeli authorities set out six years ago to devitalize the Gazan population and economy,” he said, referring to a study undertaken by the Israeli Ministry of Defense in early 2008 detailing the minimum number of calories Palestinians in Gaza need to consume on a daily basis to avoid malnutrition. The myriad of restrictions imposed by Israel do not permit civilians in Gaza to develop to their full potential, and enjoy and exercise fully their human rights.
ENDS
In 2008, the UN Human Rights Council designated Richard Falk (United States of America) as the fifth Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967. The mandate was originally established in 1993 by the UN Commission on Human Rights.
”Despite the 2005 Israeli disengagement from Gaza,[26] the United Nations, international human rights organisations, and the majority of governments and legal commentators consider the territory to be still occupied by Israel, supported by additional restrictions placed on Gaza by Egypt. Israel maintains direct external control over Gaza and indirect control over life within Gaza: it controls Gaza’s air and maritime space, as well as six of Gaza’s seven land crossings”
WIKIPEDIA
GAZA STRIP
https://en.wikipedia.org/wiki/Gaza_Strip
”Under the “Disengagement” Plan, Gazans will still be subjected to the effective control of the Israeli military. Although Israel will supposedly remove its permanent military presence, Israeli forces will retain the ability and right to enter the Gaza Strip at will.[28]
Further, Israel will retain control over Gaza’s airspace, sea shore, and borders.[29] Under the Plan, Israel will unilaterally control whether or not Gaza opens a seaport or an airport. Additionally, Israel will control all border crossings, including Gaza’s border with Egypt.[30] And Israel will “continue its military activity along the Gaza Strip’s coastline.”[31] Taken together, these powers mean that all goods and people entering or leaving Gaza will be subject to Israeli control. ”
UNITED NATIONS
THE QUESTION OF PALESTINE
THE ISRAELI ”DISENGAGEMENT” PLAN”GAZA STILL OCCUPIED
THE ISRAELI “DISENGAGEMENT” PLAN: GAZA STILL OCCUPIED
UPDATED SEPTEMBER 2005
“The significance of the disengagement plan is the freezing of the peace process . . . . Effectively, this whole package called the Palestinian state, with all that it entails, has been removed indefinitely from our agenda . . . . All with a presidential blessing and the ratification of both houses of Congress.”.”
– Dov Weisglass, Senior Advisor to Israeli Prime Minister Ariel Sharon
Legal Analysis:
Israel’s “Disengagement” plan from the Gaza Strip states that once fully enacted “there will be no basis to the claim that the Strip is occupied land,”[1] even though the Plan envisages indefinite Israeli military and economic control over the Gaza Strip. over the Gaza Strip.
Israel’s eagerness to declare an end to the Gaza Strip’s occupation illustrates the strategy behind the Plan. First, Israel seeks to proclaim an end to the Gaza Strip’s occupation—ostensibly in order to absolve Israel of all legal responsibilities as an “occupying power”—while simultaneously retaining effective military control over the Gaza Strip and its inhabitants. Second, it hopes to garner international support for retaining and even expanding illegal colonies in the Occupied West Bank in exchange for a withdrawal from Gaza. This strategy’s success was most apparent in the April 14, 2004 Bush-Sharon press conference during which President Bush praised Sharon’s withdrawal plan and announced that “existing Israeli population centers” in Occupied Palestinian Territory would become part of Israel in any permanent status agreement.[2] Third, as Israeli Bureau Chief Dov Weisglass confessed, Israel hopes to indefinitely freeze the peace process.
Variations of this strategy are not new: during the interim period of the Oslo Accords, Israel similarly carved away Palestinian population centers while retaining control over Palestinian movement, economy, and natural resources. Although Israel maintained effective military control over the evacuated areas (“Area A”)—and was therefore legally bound by its legal obligations as an occupying power—some Israeli government advisors argued that Area A was no longer occupied territory and absolved themselves of all legal responsibility.[3] In public and even some diplomatic discourse the occupation disappeared,
occupied territory became “disputed” territory, and the conflict was no longer one between an occupying power and an occupied population but rather a land dispute between two equal parties.
Notwithstanding the terms of the Plan, Israel will remain an occupying power under international law after disengagement from Gaza and is therefore bound by the obligations of an Occupying Power under international customary law and the Fourth Geneva Convention.
This updated legal analysis was originally released in October 2004 and is still accurate today, despite recent developments along the occupied Gaza Strip’s border with Egypt and coordination activities with the Palestinian Authority.
I. ISRAEL OCCUPIES THE GAZA STRIP
A. Israel Occupies the Palestinian Territories
The term “occupation” describes a regime of control over territory and population by a foreign sovereign’s military.[4] When a foreign sovereign occupies land, international law obligates that sovereign to uphold basic standards to protect both the population under its control and the land on which that population lives.[5]
The Hague Regulations of 1907 set forth the basic legal standard: “Territory is occupied when it has actually been placed under the authority of the hostile army. The occupation only extends to the territory where such authority has been established and can be exercised.”[6] This definition represents customary international law [7] and has been reaffirmed and expounded upon at the Nuremberg Tribunal,[8] in the Fourth Geneva Convention (1949) and in its First Additional Protocol (1979),[9] in state practice, in United Nations’ resolutions, and in the judgment of the International Court of Justice.[10]
In June 1967, the Israeli military took control over the West Bank, including East Jerusalem, and the Gaza Strip (together, the “Palestinian Territories”).[11] Ever since, Israel has maintained actual and effective control over the Palestinian Territories and the indigenous Palestinian population thereon. Consequently, Israel belligerently occupies the Palestinian Territories as a matter of law.
B. The International Community Recognizes Israel as the Occupying Power of the Palestinian Territories
Since 1967, the International Community has consistently held that Israel occupies the Palestinian Territories. United Nations Security Council resolution 242 called, in part, for Israel to withdraw from territories it “occupied.”[12] Since then, the international community—including the United States[13] —has consistently reaffirmed that the territories, including East Jerusalem, are “occupied” as a matter of law. Indeed, both the U.N. Security Council and the General Assembly reiterated in May 2004 that the Palestinian Territories are “occupied” as a matter of law.[14]
C. Israel’s Supreme Court Recognizes Israel as the Occupying Power of the Palestinian Territories
The Israeli Supreme Court routinely refers to the Palestinian Territories [15] as occupied and selectively enforces international law with respect to the Israeli military presence there.[16]
In 1979, for example, the Israeli Supreme Court stated: “This is a situation of belligerency and the status of [Israel] with respect to the occupied territory is that of an Occupying Power.”[17] In 2002, the Israeli Supreme Court held again that the West Bank and Gaza Strip “are subject to a belligerent occupation by the State of Israel.”[18]
Most recently, in June, 2004, the Israeli Supreme Court reaffirmed that the Territories are occupied under international law.[19] In order to find the putative legal authority to confiscate thousands of acres of Palestinian land to construct its Wall, the High Court proclaimed: “Since 1967, Israel has been holding [the Palestinian Territories] in belligerent occupation.”[20]
Therefore, even though Israeli politicians may rhetorically dispute Israel’s occupation of the Palestinian Territories, Israeli courts continually recognize the Israeli military as the Occupying Power of the Palestinian Territories.
D. The International Court of Justice Recognizes Israel as the Occupying Power
In July 2004, the International Court of Justice held that “. . .[t]he territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power.”[21]
E. Israel Remains an Occupying Power under the Oslo Accords
Israel maintained effective military control over the Palestinian Territories during the Oslo period (roughly 1993-2000), satisfying the general international legal standard for occupation. During Oslo, the Israeli military continued land confiscation and nearly doubled the population of its illegal colonies. Further, it continued building bypass roads and infrastructure, rendered Palestinian movement even more difficult, and frequently conducted military operations in and around the areas in which it had putatively ceded control.
Since Oslo, the erection of Israel’s wall inside the Occupied West Bank provides another example of Israel’s ongoing control over Palestinians and their land.[22] The Wall—a regime of concrete, electrified fences, trenches, razor wire and sniper towers—effectively divides Palestinians from their agricultural and water resources, limits access of Palestinians to their property and restricts the freedom of movement of Palestinians within their own territory.
Moreover, the Oslo Accords specifically affirmed that the Palestinian Territories would remain under Israeli occupation until the conclusion and implementation of a final peace treaty. Although the Accords permitted limited self-administration for some Palestinians, the Accords expressly reiterated that the Gaza Strip and the West Bank will continue to be considered one territorial unit, and that withdrawal from Palestinian population centers will do nothing “to change the status” of the West Bank and Gaza Strip for the duration of the Accords.[23]
Finally, the United Nations,[24] the international community,[25] the Israeli Supreme Court,[26] and the International Court of Justice all held during and after Oslo that Israel continues to occupy the West Bank and Gaza Strip. The ICJ specifically emphasized that “[s]ubsequent events [to 1967’s War]…have done nothing to alter [the status of occupation].”[27]
II. THE GAZA STRIP REMAINS OCCUPIED TERRITORY EVEN IMPLEMENTATION OF THE “DISENGAGEMENT” PLAN
A. Israel Will Retain Effective Control over the Gaza Strip and Will Therefore Remain the Occupying Power
Under the “Disengagement” Plan, Gazans will still be subjected to the effective control of the Israeli military. Although Israel will supposedly remove its permanent military presence, Israeli forces will retain the ability and right to enter the Gaza Strip at will.[28]
Further, Israel will retain control over Gaza’s airspace, sea shore, and borders.[29] Under the Plan, Israel will unilaterally control whether or not Gaza opens a seaport or an airport. Additionally, Israel will control all border crossings, including Gaza’s border with Egypt.[30] And Israel will “continue its military activity along the Gaza Strip’s coastline.”[31] Taken together, these powers mean that all goods and people entering or leaving Gaza will be subject to Israeli control.
Finally, Israel will prevent Gazans from engaging in international relations.[32] Accordingly, if it enacts the “Disengagement” Plan as envisaged, Israel will effectively control Gaza—administratively and militarily.[33] Therefore, Israel will remain the Occupying Power of the Gaza Strip.
B. Israel Will Remain the Occupying Power of the Gaza Strip so long as Israel Retains the Ability to Exercise Authority over the Strip
In The Hostages Case, the Nuremburg Tribunal expounded upon The Hague Regulations’ basic definition of occupation in order to ascertain when occupation ends.[34] It held that “[t]he test for application of the legal regime of occupation is not whether the occupying power fails to exercise effective control over the territory, but whether it has the ability to exercise such power.”[35] In that case, the Tribunal had to decide whether Germany’s occupation of Greece and Yugoslavia had ended when Germany had ceded de facto control to non-German forces of certain territories. Even though Germany did not actually control those areas, the Tribunal held that Germany indeed remained the “occupying power”—both in Greece and Yugoslavia generally and in the territories to which it had ceded control—since it could have reentered and controlled those territories at will.
Similarly, Israel will retain ultimate authority over Gaza and to a much greater degree than Germany in The Hostages Case: The Israeli military expressly reserves itself the right to enter the Gaza Strip at will. Further, Israel will not just retain the ability to exercise control over Gaza, but it will also retain effective control over Gaza’s borders, air and sea space, overall security, and international relations.
Moreover, even if Israel should devolve some of its duties to third parties—either as co-occupying powers or as designees—Israel will remain an occupying power so long as it retains the ability to effectively control the Gaza Strip at will, whether with Israel’s own troops or those of its agents or partners.
C. As an Occupying Power, Israel Must Protect Palestinians and Their Lands
Since Israel will continue to occupy the Gaza Strip, Israel will still be bound by its obligations under International Law—namely 1907’s Hague Regulations, the Fourth Geneva Convention, and international customary law. Under international law, an occupying power must uphold certain obligations to the people and land it occupies. For example, an occupying power must maintain the status quo of occupied territory and may never unilaterally annex territory or transfer its civilian population into occupied territory.[36] Moreover, the occupying power’s activity in occupied territory must, inter alia, be for the benefit of the population it occupies.[37]
Nevertheless, the absence of a “permanent” Israeli military presence and illegal settlers will mark a significant change in Gaza’s 37-year-history of belligerent Israeli occupation. The Fourth Geneva Convention does indeed contemplate changes in the degree of occupation; changes in circumstances, however, do not necessarily translate into the end of occupation.[38] Since Israel will retain such a high-degree of administrative and military authority over Gaza—control over air space, sea space, the provision of public utility services, all border crossings, military security, and international relations[39]—Israel will still be bound to all relevant provisions of the Fourth Geneva Convention, 1907’s Hague Regulations, and applicable customary international law.[40]
III. THE STRATEGY BEHIND THE DISENGAGEMENT PLAN
A. THE DISENGAGEMENT PLAN IS DEMOGRAPHICALLY MOTIVATED
Israel’s greatest battle is not against “terrorism,” but against demography. Statistical analyses project that Palestinian Christians and Muslims will comprise the majority of persons in Israel and the Occupied Palestinian Territories by the year 2020.[41] If Israel wants to remain a “Jewish state,” then it will be very difficult to maintain its Jewish identity if an ethno/religious minority continues to rule over an ethnic majority. Israeli journalist David Landau noted in a statement made to a British journalist that the Gaza plans represents “the simplest, crudest solution [to Israel’s demographic time bomb]: to dump Gaza and its 1.3 million Arabs in the hope that that would ‘buy’ [Israel] 50 more years.”[42]
Therefore, one of the primary motivations behind Israel’s “Disengagement” Plan is to “dump” 1.3 million non-Jews while illegally confiscating as much Palestinian land in the West Bank as possible.
B. ISRAEL SEEKS TO CONSOLIDATE GAINS IN THE WEST BANK IN EXCHANGE FOR “CONCESSIONS” IN GAZA
While the world publicly debates the “Disengagement” Plan, Israel has been constructing the Wall in the Occupied West Bank. The Wall severs Palestinians from their lands, communities, and homes, while illegally appropriating more land and natural resources for Israeli colonies. In addition, Israel continues to expand illegal colonies in the Occupied West Bank. Since the ICJ issued its ruling on July 9, 2004 holding that the colonies are illegal, Israel has announced tenders for more than 2,300 housing units in the West Bank.
The success of Israel’s strategy became evident during a press conference on April 14, 2004, when U.S. President Bush, ostensibly in an effort to support the Gaza Plan, endorsed Israel’s plans to keep illegal West Bank colonies (which he termed “Israeli population centers”) in any permanent status agreement. President Bush further expressed U.S. opposition for Palestinian refugees’ right to return to homes and property inside Israel, which international law guarantees to them.
Unlike the Gaza settlements, however, the West Bank settlements that Israel would keep “in exchange” for its unilateral withdrawal from Gaza house tens of thousands of illegal colonists and stretch many miles into Occupied Palestinian Territory. In fact, just as Israel has evacuated 8,500 settlers from the occupied Gaza Strip and parts of the northern West Bank, it has embarked on plans to make room for 30,000 new settlers this year alone, primarily in and around occupied East Jerusalem.
Thus, Israel will demographically, and perhaps permanently, entrench its presence in the West Bank. Therefore, the Gaza withdrawal plan has less to do with what Israel is giving up in Gaza and more to do with what Israel plans on taking from the West Bank.
IV. CONCLUSION: CONSTRUCTIVE SOLUTIONS
Israel will retain effective military, economic, and administrative control over the Gaza Strip and will therefore continue to occupy the Gaza Strip—even after implementation of its “Disengagement Plan” as proposed. Because Israel will continue to occupy Gaza, it will still be bound by the provisions of 1907’s Hague Regulations, the Fourth Geneva Convention and relative international customary law.
This is not to say, however, that removing Gaza’s settlers or reducing the Israeli military presence in and around the Gaza Strip could not usher in a better age for Palestinians and Israelis alike. Palestinians appreciate any movement on Israel’s part towards compliance with international law. Compliance with international law brings Palestinians closer to liberation and the region closer to stability. By providing non-violent channels to achieve fair results, international law helps silence extremist positions and activity while bringing both sides closer to a negotiated peace. Additionally, respect for international law affirms the credibility of more powerful nations who routinely invoke it as the legitimate basis for their own actions.
Israel’s “Disengagement” Plan however does not represent a good faith effort at advancing peace. Rather, Israel is selectively complying with some international legal standards in the Gaza Strip to preempt criticism for massive violations in the West Bank (including East Jerusalem). In so doing, Israel ensures that the conflict will continue and perhaps intensify. If Israel maintains effective control over the Gaza Strip, denying it the ability to develop internally or trade externally, Gaza could become a greater humanitarian disaster than it already is. Or if Israel eventually proclaims Gaza the “State of Palestine,” the freedom guaranteed under international law might become ever more distant for Palestinians elsewhere.
The international community should ensure that whatever unilateral measures Israel takes conform to international law and are not used to justify violations of international law elsewhere.
Today, however, Israel is making room for over 30,000 new settlers in the occupied West Bank this year alone, especially in and around occupied East Jerusalem—or almost four times the number of settlers that were evacuated from the occupied Gaza Strip as part of “Disengagement.”
We now have an historic opportunity for peace in the Middle East. Rather than an illegal declaration of an end of occupation on less than 4% of the Palestinian territory that Israel occupies, Israel should join the new Palestinian Leadership in negotiating an end of conflict.
Peace is the best security for both Palestinians and Israelis and the only secure peace is an agreed peace. We know the contours of any final status agreement; we have the opportunity; and both the Palestinian and Israeli people have the will. An immediate return to bilateral negotiations, with the international community as mediator, would help to bring permanent and positive change to the Middle East.
[2] George W. Bush, Letter of Assurances to Israeli Prime Minister Ariel Sharon,
[3]See, e.g., Dore Gold, From ‘Occupied Territories’ to ‘Disputed Territories,’ January, 2002, available at <http://www.jcpa.org/jl/vp470.htm>, last checked July 25, 2004. Cf. Joel Singer, legal adviser to the Israeli Ministry of Foreign Affairs, who stated after the signing of the Oslo Accords that “notwithstanding the transfer of a large portion of the powers and responsibilities currently exercised by Israel to Palestinian hands, the status of the West Bank and Gaza Strip will not be changed during the interim period.” Joel Singer, “The Declaration of Principles on Interim Self-Government Arrangements,” I Justice 4, 6 (Int’l Assn of Jewish Lawyers and Jurists, 1994).
[4] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force Jan. 26, 1910, hereinafter “The Hague Convention.”
[5] Customary international law governs these basic obligations, which are articulated in 1907’s Hague Convention, 1949’s Fourth Geneva Convention, and 1977’s First Protocol to the Fourth Geneva Convention.
[7] Robbie Savel, The Problematic Fourth Geneva Convention: Rethinking the International Law of Occupation, The Jurist, available at <http://jurist.law.pitt.edu/forum/forumnew120.php>, last checked June 9, 2004 (asserting that the Hague Regulations have achieved status as customary international law—that is, a set of binding international norms recognized by the community of nations—and that most of the provisions of the Fourth Geneva Convention and its 1st Additional Protocol have also achieved that status).
[8] U.S. v. Wilhelm List, Nuremberg Tribunal, 1948.
[9] Geneva Convention relative to the protection of Civilian Persons in Time of War, 75 U.N.T.S 287 (1949); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3 (1979).
[11] Israel also assumed control over Syria’s Golan Heights and Egypt’s Sinai Peninsula. While Israel returned the Sinai to Egypt, Israel still occupies Syria’s Golan Heights.
[12] United Nations Security Council Resolution 242 (1967).
[13]See, e.g., U.S. State Department Country Report on Israel and the Occupied Territories, 2003, released February 25, 2004, available at <http://www.state.gov/g/drl/rls/hrrpt/2003/27929.htm#occterr>, last checked June 27, 2004 (referring to the West Bank, Gaza, and East Jerusalem as “occupied territories”).
[14] United Nations Security Council resolution 1544 (2004) (cites Israel’s obligations as an “occupying Power” under international law and references the Territories “occupied” since 1967); United Nations General Assembly resolution 58/292 (2004) (affirming “that the status of the Palestinian Territory occupied since 1967, including East Jerusalem, remains one of military occupation”).
[15] Israel, however, claims to have annexed East Jerusalem and the Golan Heights pursuant to domestic Israeli law, which the international community has rejected en masse. See, e.g., United Nations Security Council Resolution 252.
[16] Although the Israeli Supreme Court does recognize Palestinian territories as “occupied” under international law, it does not recognize de jure application of the Fourth Geneva Convention, contrary to universal international opinio juris. For a discussion on this distinction and its lack of legal foundation, see Claude Bruderlein, “Legal Aspects of Israel’s Disengagement Plan under International Humanitarian Law,” Harvard University Program on Humanitarian Policy and Conflict Research (August, 2004).However, the Supreme Court selectively does apply some humanitarian provisions of the Fourth Geneva Convention.
[17] 606 Il. H.C. 78, Ayub, et al. v. Minister of Defence, et al. (The Beth Case); 610 Il. H.C. 78, Matawa et al. v. Minister of Defence, et al. (The Bekaot Case), reprinted in Antoine Bouvier and Marco Sassoli, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, International Committee of the Red Cross, pps. 812-817, Geneva, 1999, hereinafter “ICRC 1999.” Ironically, the Supreme Court terms the Palestinian Territories “occupied” so that it can confiscate Palestinian land: Under the Law of Occupation, the occupying power’s military boasts authority to temporarily confiscate land necessary to achieve military objectives.
[26]See notes 15 et seq. and accompanying text, emphasizing, however, that the Israeli Supreme Court does not consider East Jerusalem or the Golan Heights to be “occupied,” since Israel unilaterally annexed those territories, which the international community recognizes as “null and void.” See, e.g., United Nations Security Council Res. 478 (1980).
[27] Int’l C.J. Advisory Opinion on the L. Consequences of the Construction of a Wall in the Occupied Palestinian Territory, at 78 (2004).
[28] Sharon’s Gaza Disengagement Plan, May 28, 2004, Section III.A.3(stating that “[t]he State of Israel reserves the basic right to self defense, which includes taking preventive measures as well as the use of force against threats originating in the Gaza Strip”).
[33] Claude Bruderlein, “Legal Aspects of Israel’s Disengagement Plan under International Humanitarian Law,” Harvard University Program on Humanitarian Policy and Conflict Research (August, 2004), available upon request.
[40]See, e.g., International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention of the Rights of Child.
[41] See, e.g., Jonathan Freedland, A Gift of Dust and Bones: Sharon’s Plan for a Pullout Owes More to Demographic Shifts than a Belated Conversion to Peace-Making, The Guardian, Wed. June 2, 2004.
When a territory is placed under the authority of a hostile army, the rules of international humanitarian law dealing with occupation apply. Occupation confers certain rights and obligations on the occupying power.
Prohibited actions include forcibly transferring protected persons from the occupied territories to the territory of the occupying power. It is unlawful under the Fourth Geneva Convention for an occupying power to transfer parts of its own population into the territory it occupies. This means that international humanitarian law prohibits the establishment of settlements, as these are a form of population transfer into occupied territory. Any measure designed to expand or consolidate settlements is also illegal. Confiscation of land to build or expand settlements is similarly prohibited.
”The establishment of the settlements contravenes international humanitarian law (IHL), which states that an occupying power may not relocate its own citizens to the occupied territory or make permanent changes to that territory, unless these are needed for imperative military needs, in the narrow sense of the term, or undertaken for the benefit of the local population.”
The illegality of the Israeli settlements is based on article 49, Fourth Geneva Convention and on the Hague Convention of 1907
THE FOURTH GENEVA CONVENTION, ARTICLE 49
”Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
CONVENTION RESPECTING THE LAWS AND CUSTOMS OF WARON LAND AND ITS ANNEX: REGULATIONS CONCERNINGTHE LAWS AND CUSTOMS OF WAR ON LAND
Israel’s policy of settling its civilians in occupied Palestinian territory and displacing the local population contravenes fundamental rules of international humanitarian law.
Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”.
The situation in the OPT is primarily governed by two international legal regimes: international humanitarian law (including the rules of the law of occupation) and international human rights law. International criminal law is also relevant as some serious violations may constitute war crimes.
STATUS OF SETTLEMENTS UNDER INTERNATIONAL LAW
Israel’s policy of settling its civilians in occupied Palestinian territory and displacing the local population contravenes fundamental rules of international humanitarian law.
Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”.
The extensive appropriation of land and the appropriation and destruction of property required to build and expand settlements also breach other rules of international humanitarian law. Under the Hague Regulations of 1907, the public property of the occupied population (such as lands, forests and agricultural estates) is subject to the laws of usufruct. This means that an occupying state is only allowed a very limited use of this property. This limitation is derived from the notion that occupation is temporary, the core idea of the law of occupation. In the words of the International Committee of the Red Cross, the occupying power “has a duty to ensure the protection, security, and welfare of the people living under occupation and to guarantee that they can live as normal a life as possible, in accordance with their own laws, culture, and traditions.”
The Hague Regulations prohibit the confiscation of private property. The Fourth Geneva Convention prohibits the destruction of private or state property, “except where such destruction is rendered absolutely necessary by military operations”.
As the occupier, Israel is therefore forbidden from using state land and natural resources for purposes other than military or security needs or for the benefit of the local population. The unlawful appropriation of property by an occupying power amounts to “pillage”, which is prohibited by both the Hague Regulations and Fourth Geneva Convention and is a war crime under the Rome Statute of the International Criminal Court and many national laws.
Israel’s building of settlements in the West Bank, including in East Jerusalem, does not respect any of these rules and exceptions. Transferring the occupying power’s civilians into the occupied territory is prohibited without exception. Furthermore, as explained earlier, the settlements and associated infrastructure are not temporary, do not benefit Palestinians and do not serve the legitimate security needs of the occupying power. Settlements entirely depend on the large-scale appropriation and/or destruction of Palestinian private and state property which are not militarily necessary. They are created with the sole purpose of permanently establishing Jewish Israelis on occupied land.
In addition to being violations of international humanitarian law, key acts required for the establishment of settlements amount to war crimes under the Rome Statute of the International Criminal Court. Under this body of law, the “extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly” and the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” constitute war crimes. As stated above, “pillage” is also a war crime under the Rome Statute.
Israel’s settlement policy also violates a special category of obligations entitled peremptory norms of international law (jus cogens) from which no derogation is permitted. The International Court of Justice (ICJ) affirmed that the rules of the Geneva Conventions constitute “intransgressible principles of international customary law”. Only a limited number of international norms acquire this status, which is a reflection of the seriousness and importance with which the international community views them. Breaches of these norms give rise to certain obligations on all other states, or “third states”, which are explained below.
SETTLEMENTS, DISCRIMINATION AND HUMAN RIGHTS VIOLATIONS
States have a duty to respect, protect and fulfil the human rights of people under their jurisdiction, including people living in territory that is outside national borders but under the effective control of the state. The ICJ confirmed that Israel is obliged to extend the application of the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and other treaties to which it is a state party to people in the OPT. Israel is a state party to numerous international human rights treaties and, as the occupying power, it has well defined obligations to respect, protect and fulfil the human rights of Palestinians.
However, as has been well documented for many years by the UN, Amnesty International and other NGOs, Israel’s settlement policy is one of the main driving forces behind the mass human rights violations resulting from the occupation. These include:
Violations of the right to life: Israeli soldiers, police and security guards have unlawfully killed and injured many Palestinian civilians in the OPT, including during protests against the confiscation of land and the construction of settlements. UN agencies and fact-finding missions have also expressed concern about violence perpetrated by a minority of Israeli settlers aimed at intimidating Palestinian populations.
Violations of the rights to liberty, security of the person and equal treatment before the law: Amnesty International has documented how Palestinians in the OPT are routinely subjected to arbitrary detention, including through administrative detention. Whereas settlers are subject to Israeli civil and criminal law, Palestinians are subject to a military court system which falls short of international standards for the fair conduct of trials and administration of justice.
Violations of the right to access an effective remedy for acts violating fundamental rights: Israel’s failure to adequately investigate and enforce the law for acts of violence against Palestinians, together with the multiple legal, financial and procedural barriers faced by Palestinians in accessing the court system, severely limit Palestinians’ ability to seek legal redress. The Israeli High Court of Justice has failed to rule on the legality of settlements, as it considered the settlements to be a political issue that that it is not competent to hear.
Violations of the rights to freedom of expression and peaceful assembly: Amnesty International has documented Israel’s use of military orders to prohibit peaceful protest and criminalize freedom of expression in the West Bank. Israeli forces have used tear gas, rubber bullets and occasionally live rounds to suppress peaceful protests.
Violations of the rights to equality and non-discrimination: Systematic discrimination against Palestinians is inherent in virtually all aspects of Israel’s administration of the OPT. Palestinians are also specifically targeted for a range of actions that constitute human rights violations. The Israeli government allows settlers to exploit land and natural resources that belong to Palestinians. Israel provides preferential treatment to Israeli businesses operating in the OPT while putting up barriers to, or simply blocking, Palestinian ones. Israeli citizens receive entitlements and Palestinians face restrictions on the grounds of nationality, ethnicity and religion, in contravention of international standards.
The Israeli authorities have created a discriminatory urban planning and zoning system. Within Area C, where most settlement construction is based, Israel has allocated 70% of the land to settlements and only 1% to Palestinians. In East Jerusalem, Israel has expropriated 35% of the city for the construction of settlements, while restricting Palestinians to construct on only 13% of the land. These figures clearly illustrate Israel’s use of regulatory measures to discriminate against Palestinian residents in Area C.
The UN has also pointed to discrimination against Palestinians in the way in which the criminal law is enforced. While prosecution rates for settler attacks against Palestinians are low, suggesting a lack of enforcement, most cases of violence against Israeli settlers are investigated and proceed to court.
Violations of the right to adequate housing: Since 1967, Israel has constructed tens of thousands of homes on Palestinian land to accommodate settlers while, at the same time, demolishing an estimated 50,000 Palestinian homes and other structures, such as farm buildings and water tanks. Israel also carries out demolitions as a form of collective punishment against the families of individuals accused of attacks on Israelis. In East Jerusalem, about 800 houses have been demolished since 2004 for lack of permits. Israel also confiscates houses inhabited by Palestinians in the city to allocate them to settlers. By forcibly evicting and/or demolishing their homes without providing adequate alternative accommodation, Israel has failed in its duty to respect the right to adequate housing of thousands of Palestinians.
Violations of the right to freedom of movement: Many restrictions on freedom of movement for Palestinian residents are directly linked to the settlements, including restrictions aimed at protecting the settlements and maintaining “buffer zones”. Restrictions include checkpoints, settler-only roads and physical impediments created by walls and gates.
Violations of the rights of the child: Every year, 500-700 Palestinian children from the occupied West Bank are prosecuted in Israeli juvenile military courts under Israeli military orders. They are often arrested in night raids and systematically ill-treated. Some of these children serve their sentences within Israel, in violation of the Fourth Geneva Convention. The UN has also documented that many children have been killed or injured in settler attacks.
Violations of the right to enjoyment of the highest attainable standard of physical and mental health: Restrictions on movement limit Palestinians’ access to health care. Specialists working with Palestinian populations have also documented a range of serious mental health conditions that stem from exposure to violence and abuse in the OPT.
Violations of the right to water: Most Palestinian communities in Area C are not connected to the water network and are prevented from repairing or constructing wells or water cisterns that hold rainwater. Water consumption in some Area C communities is reported by the UN to be 20% of the minimum recommended standard. Israel’s failure to ensure Palestinian residents have a sufficient supply of clean, safe water for drinking and other domestic uses constitutes a violation of its obligations to respect and fulfil the right to water.
Violations of the right to education: Palestinian students face numerous obstacles in accessing education, including forced displacement, demolitions, restrictions on movement and a shortage of school places. An independent fact-finding mission in 2012 noted an “upward trend” of cases of settler attacks on Palestinian schools and harassment of Palestinian children on their way to and from school. Such problems can result in children not attending school and in a deterioration in the quality of learning.
Violations of the right to earn a decent living through work: The expansion of settlements has reduced the amount of land available to Palestinians for herding and agriculture, increasing the dependency of rural communities on humanitarian assistance. Settler violence and the destruction of Palestinian-owned crops and olive trees have damaged the livelihoods of farmers. The UN has reported that in Hebron city centre, the Israeli military has forced 512 Palestinian businesses to close, while more than 1,000 others have shut down due to restricted access for customers and suppliers.
SUSTAINED INTERNATIONAL CONDEMNATION
Most states and international bodies have long recognized that Israeli settlements are illegal under international law. The European Union (EU) has clearly stated that: “settlement building anywhere in the occupied Palestinian Territory, including East Jerusalem, is illegal under international law, constitutes an obstacle to peace and threatens to make a two-state solution impossible.”
The settlements have been condemned as illegal in many UN Security Council and other UN resolutions. As early as 1980, UN Security Council Resolution 465 called on Israel “to dismantle the existing settlements and, in particular, to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.” The International Committee of the Red Cross and the Conference of High Contracting Parties to the Fourth Geneva Convention have reaffirmed that settlements violate international humanitarian law. The illegality of the settlements was recently reaffirmed by UN Security Council Resolution 2334, passed inDecember 2016, which reiterates the Security Council’s call on Israel to cease all settlement activities in the OPT. The serious human rights violations that stem from Israeli settlements have also been repeatedly raised and condemned by international bodies and experts.
Reacties uitgeschakeld voor The Israeli settlements in the occupied Palestinian territories are illegal under International Law/Why?
The recent verdict of the Israeli High Court, which states that the building of the Israeli Wall at the West Bank must be adjusted with 30 kilometers because of the violations of human rights is not only a partial fullfilling of the humanitarian needs of the Palestinian population, but is also in contarily with International Law.
In the first place the motivation for the verdict is being based on the fact that because of the building of the Wall the inhabitants of the Beit Surik community had no entrance to their agricultural grounds and schools, but in the named verdict the Court doesn’t refer to the other Palestinian inhabitants of the West Bank [85.000 people], who are likewise excluded from their agricultural grounds.
In the second place the Israeli building of the Wall is as such a violation of International Law, because it cuts deeply in the occupied Palestinian areas which is a violation of UN Security Council Resolution 242 dd 1967 by which Israel was summoned to withdraw from the in the june-war occupied Palestinian areas.
Further the building of the Wall is being made possible by hugh Palestinian landownings which is yet apart from the flagrant injustice a violation of International Law [the 4th Geneva Convention] which forbids land and house-ownings of ”protected people” [people who are living under an occupation] It is therefore highly recommendable, that the Israeli High Court adjusts its vedict according to the principles of International Law.
INTRODUCTION READERSIsn’t it interesting, when roaming the Internet, to find an old article ofyourself, that you almost forgot!It goes about a Letter to the Editor I wrote in the past [2004] to the webzine”The Pravda” and that they apparently published.Not only is that interesting, but more interesting is the fact, that I wrote about averdict of the Israeli High Court about the building of the Israeli Apartheid Wall [1]You all know, of course, the more known verdict of the International Court ofJustice, declaring the Wall illegal for once and for all [2] but few people[I almost forgot!] will remember, that the Israeli High Court gave also its opinion,in fact supporting the building of the Wall, except for some minor point of criticism [3]And here it is, this voice of the past from Astrid Essed, protesting against theverdict of the Israeli High Court!See directly below And see for the notes, under my almost forgotten Letter to the Editor! ENJOY IT! ASTRID ESSED
ASTRID ESSED: THE VERDICT OF ISRAELI HIGH COURT REGARDING THE WALL6 JULY 2004
The recent verdict of the Israeli High Court, which states that the building of the Israeli Wall at the West Bank must be adjusted with 30 kilometers because of the violations of human rights is not only a partial fullfilling of the humanitarian needs of the Palestinian population, but is also in contarily with International Law.
In the first place the motivation for the verdict is being based on the fact that because of the building of the Wall the inhabitants of the Beit Surik community had no entrance to their agricultural grounds and schools, but in the named verdict the Court doesn’t refer to the other Palestinian inhabitants of the West Bank [85.000 people], who are likewise excluded from their agricultural grounds.
In the second place the Israeli building of the Wall is as such a violation of International Law, because it cuts deeply in the occupied Palestinian areas which is a violation of UN Security Council Resolution 242 dd 1967 by which Israel was summoned to withdraw from the in the june-war occupied Palestinian areas.
Further the building of the Wall is being made possible by hugh Palestinian landownings which is yet apart from the flagrant injustice a violation of International Law [the 4th Geneva Convention] which forbids land and house-ownings of ”protected people” [people who are living under an occupation] It is therefore highly recommendable, that the Israeli High Court adjusts its vedict according to the principles of International Law.
”While Israel is heading for de jure annexation, the Wall is an important tool of Israel’s illegal and ongoing de facto annexation. The Wall’s path and its associated regime are planned to de facto annex some 46% of the West Bank, isolating communities into Bantustans, ghettos and “military zones.” STOP THE WALL.ORG https://stopthewall.org/the-wall/
[2]
”In December 2003, Resolution ES-10/14 was adopted by the United Nations General Assembly in an emergency special session.[111] 90 states voted for, 8 against, 74 abstained.[111] The resolution included a request to the International Court of Justice to urgently render an advisory opinion on the following question.[111]
“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”[111]
The court concluded that the barrier violated international law”
INTERNATIONAL CRIMINAL COURTLEGAL CONSEQUENCES OF THE INSTRUCTION OF A WALL INTHE OCCUPIED PALESTINIAN TERRITORYOVERVIEW OF THE CASE https://www.icj-cij.org/en/case/131
OVERVIEW OF THE CASE
By resolution ES-10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session, the General Assembly decided to request the Court for an advisory opinion on the following question :
“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?”
The resolution requested the Court to render its opinion “urgently”. The Court decided that all States entitled to appear before it, as well as Palestine, the United Nations and subsequently, at their request, the League of Arab States and the Organization of the Islamic Conference, were likely to be able to furnish information on the question in accordance with Article 66, paragraphs 2 and 3, of the Statute. Written statements were submitted by 45 States and four international organizations, including the European Union. At the oral proceedings, which were held from 23 to 25 February 2004, 12 States, Palestine and two international organizations made oral submissions. The Court rendered its Advisory Opinion on 9 July 2004.
The Court began by finding that the General Assembly, which had requested the advisory opinion, was authorized to do so under Article 96, paragraph 1, of the Charter. It further found that the question asked of it fell within the competence of the General Assembly pursuant to Articles 10, paragraph 2, and 11 of the Charter. Moreover, in requesting an opinion of the Court, the General Assembly had not exceeded its competence, as qualified by Article 12, paragraph 1, of the Charter, which provides that while the Security Council is exercising its functions in respect of any dispute or situation the Assembly must not make any recommendation with regard thereto unless the Security Council so requests. The Court further observed that the General Assembly had adopted resolution ES-10/14 during its Tenth Emergency Special Session, convened pursuant to resolution 377 A (V), whereby, in the event that the Security Council has failed to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly may consider the matter immediately with a view to making recommendations to Member States. Rejecting a number of procedural objections, the Court found that the conditions laid down by that resolution had been met when the Tenth Emergency Special Session was convened, and in particular when the General Assembly decided to request the opinion, as the Security Council had at that time been unable to adopt a resolution concerning the construction of the wall as a result of the negative vote of a permanent member. Lastly, the Court rejected the argument that an opinion could not be given in the present case on the ground that the question posed was not a legal one, or that it was of an abstract or political nature.
Having established its jurisdiction, the Court then considered the propriety of giving the requested opinion. It recalled that lack of consent by a State to its contentious jurisdiction had no bearing on its advisory jurisdiction, and that the giving of an opinion in the present case would not have the effect of circumventing the principle of consent to judicial settlement, since the subject-matter of the request was located in a much broader frame of reference than that of the bilateral dispute between Israel and Palestine, and was of direct concern to the United Nations. Nor did the Court accept the contention that it should decline to give the advisory opinion requested because its opinion could impede a political, negotiated settlement to the Israeli-Palestinian conflict. It further found that it had before it sufficient information and evidence to enable it to give its opinion, and empha- sized that it was for the General Assembly to assess the opinion’s usefulness. The Court accordingly concluded that there was no compelling reason precluding it from giving the requested opinion.
Turning to the question of the legality under international law of the construction of the wall by Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of international law relevant to the question posed by the General Assembly. After recalling the customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize the illegality of any territorial acquisition by such means, the Court further cited the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV). In relation to international humanitarian law, the Court then referred to the provisions of the Hague Regulations of 1907, which it found to have become part of customary law, as well as to the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court further established that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, United Nations Convention on the Rights of the Child) were applicable in the Occupied Palestinian Territory.
The Court then sought to ascertain whether the construction of the wall had violated the above-mentioned rules and principles. Noting that the route of the wall encompassed some 80 per cent of the settlers living in the Occupied Palestinian Territory, the Court, citing statements by the Security Council in that regard in relation to the Fourth Geneva Convention, recalled that those settlements had been established in breach of international law. After considering certain fears expressed to it that the route of the wall would prejudge the future frontier between Israel and Palestine, the Court observed that the construction of the wall and its associated régime created a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de facto annexation. Noting further that the route chosen for the wall gave expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements and entailed further alterations to the demographic composition of the Occupied Palestinian Territory, the Court concluded that the construction of the wall, along with measures taken previously, severely impeded the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligation to respect that right.
The Court then went on to consider the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall and its associated régime were contrary to the relevant provisions of the Hague Regulations of 1907 and of the Fourth Geneva Convention and that they impeded the liberty of movement of the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights, as well as their exercise of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child. The Court further found that, coupled with the establishment of settlements, the construction of the wall and its associated régime were tending to alter the demographic composition of the Occupied Palestinian Territory, thereby contravening the Fourth Geneva Convention and the relevant Security Council resolutions. The Court then considered the qualifying clauses or provisions for derogation contained in certain humanitarian law and human rights instruments, which might be invoked inter alia where military exigencies or the needs of national security or public order so required. The Court found that such clauses were not applicable in the present case, stating that it was not convinced that the specific course Israel had chosen for the wall was necessary to attain its security objectives, and that accordingly the construction of the wall constituted a breach by Israel of certain of its obligations under humanitarian and human rights law. Lastly, the Court concluded that Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall, and that such construction and its associated régime were accordingly contrary to international law.
The Court went on to consider the consequences of these violations, recalling Israel’s obligation to respect the right of the Palestinian people to self-determination and its obligations under humanitarian and human rights law. The Court stated that Israel must put an immediate end to the violation of its international obligations by ceasing the works of construction of the wall and dismantling those parts of that structure situated within Occupied Palestinian Territory and repealing or rendering ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime. The Court further made it clear that Israel must make reparation for all damage suffered by all natural or legal persons affected by the wall’s construction. As regards the legal consequences for other States, the Court held that all States were under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. It further stated that it was for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination be brought to an end. In addition, the Court pointed out that all States parties to the Fourth Geneva Convention were under an obligation, while respecting the Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Finally, in regard to the United Nations, and especially the General Assembly and the Security Council, the Court indicated that they should consider what further action was required to bring to an end the illegal situation in question, taking due account of the present Advisory Opinion.
The Court concluded by observing that the construction of the wall must be placed in a more general context, noting the obligation on Israel and Palestine to comply with international humanitarian law, as well as the need for implementation in good faith of all relevant Security Council resolutions, and drawing the attention of the General Assembly to the need for efforts to be encouraged with a view to achieving a negotiated solution to the outstanding problems on the basis of international law and the establishment of a Palestinian State.[3]
”Of course this is not to say that that the Israeli ruling is a good one. For example, like many Israeli rulings there are political points that are treated as legal ones, such as the false characterization of all Palestinian resistance as “terrorism” [8]. Further the HCJ does justify the Wall in principle though the projected segments reviewed were deemed to be illegal because of the humanitarian impact of the suggested route [9]” ELECTRONIC INTIFADATHE ISRAELI HIGH COURT OF JUSTICE AND THE APARTHEID WALL15 JULY 2004 https://electronicintifada.net/content/israeli-high-court-justice-and-apartheid-wall/5156
With the recent International Court of Justice (ICJ) Advisory Opinion regarding the consequences of the Apartheid Wall, the legality of this enterprise has been much discussed in almost all circles related to the Israeli/Palestinian conflict. On the Zionist side, aside from the usual canard about the “anti-Semitism” of the United Nations and the like, many commentaries have pointed to the recent Israeli High Court of Justice (HCJ) ruling about the wall and declared, in so many words, that this is the only legal ruling that matters. For example, in the recent diatribe against the ICJ by Alan Dershowitz [1] he writes: “The Israeli government has both a legal and a moral obligation to comply with the Israeli Supreme Court’s decision regarding the security fence.”
The interesting thing about this is that if one actually reads the HCJ decision [2], it in fact makes a very strong case against the Wall in general though its ruling only regarded only one small 40 km stretch of the Wall. Unlike the ICJ Opinion which was, as per its mandate, primarily focused on existing international treaties and conventions and Israel’s obligations stemming from them; the HCJ decision was based more on general legal principle.
The Israeli case – Beit Sourik Village Council v. The Government of Israel, Commander of the IDF Forces in the West Bank – was a petition against eight separate land confiscation orders for the building of the Wall. The net result was that seven of these eight confiscation orders were deemed illegal and the one that was upheld was only upheld because the petitioners didn’t really argue against it [4].
Key point that resulted in the declaration that these confiscation orders were illegal was the principle of “proportionality” that was very succinctly defined in the ruling itself. [5] The actual factors taken into account were essentially the same that served as the basis of the ICJ Advisory Opinion, specifically the human impact that the Wall had on the resident Palestinian population [6]. The question and standard, treated as the third element of proportionality, deserves to be recalled in full (citations removed):
“The third subtest examines whether the injury caused to the local inhabitants by the construction of the separation fence stands in proper proportion to the security benefit from the the [sic] security fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:
“The third element is proportionality itself. According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen. The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.
“This subtest weighs the costs against the benefits. According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other. This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations). All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention. The question before us is: does the severity of the injury to local inhabitants, by the construction of the separation fence along the route determine d by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the fence along that route?” [7]
It was on this basis that the HCJ ruled seven of the eight confiscation orders under review to be illegal. Were this same principle to be applied to most of the Wall as it exists today, especially in cases like that of the Qalqilya ghetto, it is pretty reasonable to assume that most, if not all, the Wall would be deemed illegal. Better yet, the proportionality argument is generally accepted in all modern legal systems, unlike the more specific treaty/convention law that the ICJ was forced to focus on.
Of course this is not to say that that the Israeli ruling is a good one. For example, like many Israeli rulings there are political points that are treated as legal ones, such as the false characterization of all Palestinian resistance as “terrorism” [8]. Further the HCJ does justify the Wall in principle though the projected segments reviewed were deemed to be illegal because of the humanitarian impact of the suggested route [9].
Further, citing the usual excuse used by the HCJ in regard to IDF decisions, it seeks merely to review military actions for their illegality, not to actually impose its judgment on the IDF [10]. This is, along with the IDF option of utilizing the Emergency Regulations, one of the methods allowed to the IDF to freely disregard the High Court of Justice when so inclined. As was the case in the famous court ruling against torture, that in fact merely amounted to a slight change in the phrasing of the IDF terminology, i.e. “ticking bomb” justification, the court’s ruling can be safely ignored if the government chooses – for whatever reason – not to enforce it. This is one of the luxuries of being a non-constitutional state; the political executive is under no actual obligation to enforce any law or legal ruling. In the ruling itself, the IDF freely concedes that should some portion of the fence that is already constructed be deemed illegal, they will pay compensation, but there is no mention – much less compulsion – to reverse illegal sections or the Wall or to in fact stop committing the construction even if deemed illegal. [11]
Nevertheless, in order to portray itself as being a state that respects the rule of law, High Court of Justice rulings are usually afforded at least some general consideration. Thus the HCJ ruling in Beit Sourik Village Council v. The Government of Israel, Commander of the IDF Forces in the West Bank, is in fact a rather grave embarrassment since the projected Wall cannot be constructed in the Occupied Palestinian Territories at all without inflicting the same disproportionate – and hence illegal – circumstances on other local Palestinians. So how do they intend to reconcile this ruling with the Wall?
The Jerusalem Post provided the answer to this question on July 14: “A petition against the appropriation of land for construction of the security fence near the Kissufim road in the Gaza Strip was turned down Tuesday by the High Court of Justice. The petition was submitted by Palestinian residents of the al-Karara village in the Gaza Strip. According to IBA news, the ruling also cancels a freeze order on construction in the area.” [12] Since the HCJ ruling only related to one small segment of the Wall, and the determination has already been made, the HCJ can now simply refuse to accept further petitions, based on the argument that the IDF should be assumed to be taking the same proportionality concerns into account in other areas. That is, in so many words, it seems unlikely that there will be an option of legal appeal to any other segments of the Wall, based on the assumption that the IDF will act in “good faith” taking the previous ruling into consideration. Thus, yet agai n, we have another High Court of Justice ruling that can be safely ignored.
Make no mistake about it, the Israeli High Court of Justice is no friend to Palestinians living in the Occupied Palestinian Territories. Nevertheless, when Zionists and others choose to counter the ICJ Advisory Opinion citing the HCJ ruling, one can – in all honesty – point out that if the HCJ ruling was in fact applied to the entire Wall, most of it would be illegal even under Israeli law. Of course this won’t happen, and even if it did the IDF is under no obligation to comply anyway, nevertheless, for the scoundrels out to justify the legality of the Wall, the High Court of Justice ruling is certainly no help. END OF THE ARTICLE
END OF THE NOTES
Reacties uitgeschakeld voor Voice from the Past!/Letter to the Editor, sent and published by Pravda/”The verdict of the Israeli High Court regarding the Wall”
Nearly 43,000 foreign men, women, and children linked to ISIS remain detained in inhuman or degrading conditions by regional authorities in northeast Syria, two years after they were rounded up during the fall of the Islamic State “caliphate,” often with the explicit or implicit consent of their countries of nationality, Human Rights Watch said today.
The foreign detainees have never been brought before a court, making their detention arbitrary as well as indefinite. They include 27,500 children, most in locked camps and at least 300 in squalid prisons for men, and scores of others in a locked rehabilitation center. The detainees suffer from rising levels of violence and falling levels of vital aid including medical care. In just one case, France has refused to allow a woman with advanced colon cancer to come home for treatment. One detained woman told Human Rights Watch that a guard ran over a young child in a vehicle, cracking his skull.
“Men, women, and children from around the world are entering a third year of unlawful detention in life-threatening conditions in northeast Syria while their governments look the other way,” said Letta Tayler, associate crisis and conflict director at Human Rights Watch. “Governments should be helping to fairly prosecute detainees suspected of serious crimes and free everyone else, not helping to create another Guantanamo.”
Governments that actively contribute to this abusive confinement may be complicit in the unlawful detention and collective punishment of thousands of people, most of them women and young children, Human Rights Watch said.
In February and March 2021, Human Rights Watch communicated via text, email, or phone with eight foreign women detained in camps for family members of male ISIS suspects in northeast Syria as well as relatives of five camp detainees. Human Rights Watch also spoke or emailed with members of six aid organizations and six civil society groups pressing for the detainees’ repatriations, as well as regional authorities, Western government officials, UN officials, journalists, and academics. In addition, Human Rights Watch reviewed dozens of reports, media articles, and videos about the camps and prisons.
People interviewed described increasingly desperate mothers and children struggling to maintain dignity amid harsh conditions and fears of contracting Covid-19. Three women in one camp, Roj, said that guards confiscated Qurans, threatened women for wearing niqabs, and raided tents at night. Women caught with cellphones or suspected of withholding information about crimes in the camp were sometimes beaten and jailed for days or even weeks, the women and a relative said. The regional authority, called the Autonomous Administration of Northeast Syria, denied any abuse by guards and said that some women had attacked guards with stones and sharp objects. Badran Chia Kurd, Autonomous Administration’s deputy co-chair, told Human Rights Watch that women were in most cases jailed only for “a few days” if they tried to flee.=
One relative of a detainee said that her detained family member was suicidal. A young mother wrote that daily life in the camps made her want to “scream from the top of my lungs”:
It’s mentally exhausting. … never gets better here. Always worse. … majority of the children in the camp are sick. Almost everyday something bad happens. Children trapped in burning tents and dies. … We have water tank that contains worms. The toilets are dirty so people started to build [their] own toilets.
Like all detainees who communicated with Human Rights Watch, the women asked that they not be identified by name or nationality for fear of retaliation by other detainees or camp guards.
Holding the foreigners “is a huge burden” for the cash-strapped Autonomous Administration, Chia Kurd said. “The international community, in particular the countries who have citizens in the camps and prisons, are not assuming their responsibility. This issue, if not solved, will not only affect us, but the entire world.”
Countries with nationals held in northeast Syria should answer repeated appeals by the Autonomous Administration to help them provide detainees with due process, including the right to contest the legality and necessity of their detention before a judge. All detainees held in inhuman or degrading conditions, or who are not promptly charged with a recognizable criminal offense in fair proceedings should be immediately released.
Foreign countries should also comply with the Autonomous Administration’s repeated calls for them to repatriate detainees not charged with a crime, prioritizing the most vulnerable. Repatriated children should be accompanied by their parents in keeping with the child’s right to family unity. Foreigners facing risks at home of death or torture or other ill-treatment should be transferred to a safe third country.
Upon transfer home or abroad, detainees can be provided with rehabilitation and reintegration services and as warranted, investigated and prosecuted, Human Rights Watch said. Children who lived under ISIS and any women trafficked by ISIS should be treated first and foremost as victims, and children should face prosecution and detention only in exceptional circumstances.
In the meantime, foreign governments and donors should immediately increase aid to improve camp and prison conditions in northeast Syria and press the United Nations Security Council to reauthorize vital aid operations across Syria’s northeast and northwest borders to speed the delivery of aid.
Only 25 countries are known to have repatriated any nationals from northeast Syria and most have brought home or helped return only a token few, primarily orphans or young children, in some cases without their mothers.
The UN and donors, including many home countries of the foreign detainees, are providing humanitarian aid to the detainees and others in northeast Syria. But acute shortages of clean water, food, medicine, and adequate shelter and security persist, say UN experts and others.
The United States military, which leads the US coalition against ISIS, has funded measures to bolster security and ease overcrowding for some of the prisons, according to Chia Kurd, media, and US government reports. However, the measures appear to have done little to bring the prisons in compliance with minimum detention standards. Moreover, neither the US nor other members of the international community, including countries with nationals detained in northeast Syria, have funded any measures to provide the prisoners with due process, Chia Kurd said.
The international coalition against ISIS also reportedly plans to fund construction of additional detention centers for women suspects, as well as a 500-bed “rehabilitation center” for older boys. The United Kingdom, another key coalition member, is reportedly funding a project to double the capacity of one of the prisons, in Hasakah, from 5,000 to 10,000 detainees. UK and US defense officials did not respond to requests for comment in the time provided.
“Improving horrific prison conditions does not change the fact that indefinite detention without judicial review is unlawful,” Tayler said. “Expanding prisons and locked rehabilitation centers to warehouse hundreds of children who never even chose to live under ISIS is unconscionable.”
The detainees
Backed by a US-led coalition, regional fighters called the Syrian Democratic Forces rounded up tens of thousands of ISIS suspects and family members during the fall of Baghouz, then the last ISIS stand in Syria, during a weeks-long battle that ended March 23, 2019. The Syrian Democratic Forces are still holding nearly 63,400 of the family members, nearly all of them women and children, in two locked, heavily guarded, open-air camps encircled by barbed wire. Roughly 20,000 are from Syria, 31,000 from neighboring Iraq, and nearly 12,000 others – 8,000 children and 4,000 women – are from almost 60 other countries. Conditions for the non-Iraqi foreigners, who are kept in special annexes, are particularly dire.
The Syrian Democratic Forces are also holding about 10,000 men as well as at least 700 boys of all nationalities, most ages 14 to 17 in 14, overcrowded, makeshift prisons for ISIS suspects, Chia Kurd said. Prison conditions “do not meet minimum standards,” he said, blaming scarce international aid for the abusive conditions. Human Rights Watch in 2019 and 2020 documented the inhumane conditions in some of these prisons.
Camp Conditions
In al-Hol and Roj, the locked camps for family members, more than 90 percent of children are under age 12 and more than half under 5, aid groups say. Syrians and Iraqis in the camps have relative freedom, including the ability to leave and return to the camps. During multiple visits to the two camps from 2017 to 2019, Human Rights Watch documentedconditions in the foreigners’ annexes that amounted to cruel, degrading, and inhuman treatment. Combined with the indefinite and arbitrary nature of detention, these conditions may also amount to torture when they deliberately inflict serious physical or mental harm on a detainee. Since then, detainees, family members, civil society representatives, and aid workers told Human Rights Watch, conditions have deteriorated further along with detainees’ despair.
“You can feel that people are giving up on the outside world, they are so desperate you meet a wall of hopelessness,” said Natascha Rée Mikkelsen, founder of Repatriate the Children-Denmark, who has visited the camps several times, including in February. “And the young children, some of them have diarrhea all the time and they are so skinny and so small. They just have this look like they are locked up. They have nothing to do and they know nothing about their future.”
Detainees and others interviewed by Human Rights Watch complained of contaminated water, overflowing latrines, shortages of fresh food and diapers, tents leaking or catching fire, rampant disease, insufficient medical care, and almost no schooling for children or counseling for a severely traumatized population.
While conditions are somewhat better in Roj than in the larger camp, al-Hol, detainees and family members described harsh conditions there as well. Three relatives, a civil society member and two detainees said noxious fumes from adjacent oil fields were causing asthma, deep coughs, and lung inflammations. One mother texted of being terrified by the lack of medicine for her child, by guards threatening to cut detainees’ clothes if they were not “short and colorful,” and of the desert winds that flipped over her tent at night:
Honestly I have ptsd [Post-Traumatic Stress Disorder] from the camps more than IS territory (even though I am traumatized from that lifestyle). … I would hold my daughter tight and stay alert all night watching the tent as it was about to collapse onto us at any moment. And it did actually happen many times.
In mid-March, said a Western European man whose grandchildren are in the camps, a small group of children no older than 6 crossed an internal camp fence to pick dandelions just on the other side. “The camp guards saw them, caught them, and beat them severely,” he said. “The children didn’t decide to be there, they don’t deserve to live like this in such terrible conditions.”
Two relatives described detainees waiting hours to access a shared phone that they could only use for seconds. Communication in one section for foreigners in Roj is limited to messages of less than a minute every 8 to 10 days, compounding detainees’ isolation, one relative said.
Life-Threatening Conditions
According to humanitarian groups and the UN Office of Counterterrorism, more than 700 detainees in al-Hol and Roj – at least half of them children – have died in the past two years. Several were killed by detainees in al-Hol who remain loyal to ISIS, while others died in crossfire between guards and detainees or from lack of medical care, unsanitary conditions, and accidents such as tent fires.
At least 29 people were killed in al-Hol camp alone in January and February 2021 including seven children. “The people who work there feel more and more scared of the situation, as if they have no control,” Mikkelsen said. “You have the feeling that any time you could be killed.”
In text messages relayed to Human Rights Watch, one woman in Roj described a fire breaking out in a tent housing two children whom guards left in the camp while jailing their mother for having a cellphone. The woman said it was one of three fires in Roj so far in 2021:
The 5 year old boy put the tent on fire and his 7 year old sister took him out from the burning tent. Two tent burned that day, it was terrible day cuz it took very long time to put the fire [out] since many fire extinguisher didn’t work and we didn’t know if there was more ppl trapped in the fire.
In February, 10 Frenchwomen in the camps went on a hunger strike to publicize their demand to stand trial at home. That same month, Pascale Descamps, a Frenchwoman whose 32-year-old daughter and four young grandchildren are held in Roj, began her own hunger strike to press the government to let her daughter leave to receive medical treatment for advanced colon cancer. Doctors in northeast Syria told her daughter that she needed “urgent” treatment but that the operation would be high-risk if performed locally, Descamps told Human Rights Watch. In December, the UN Committee Against Torture called on France to repatriate Descamps’ daughter for medical care but she remains in Roj. Descamps said that in intermittent audio messages, her daughter sounded desperate:
Every time my daughter talks to me, she starts crying. She tells me that she is getting worse, bleeding a lot, and getting weaker. She is like an animal in her tent, dying in front of her children. … I am not exonerating my daughter, but she has the right to a fair trial and to receive proper medical care given the seriousness of her health condition … I am also fighting for my grandchildren not to have to go through all this any longer. It is a stake in the heart to know that they see their mother so ill and to imagine that she could die there when France could repatriate her and her children. It’s like they have no rights anymore.”
Covid-19 is another threat. As of February 16, the UN had reported 8,537 cases of the virus in northeast Syria, but humanitarians warn that rates are vastly under-counted because of insufficient staff and supplies for extensive testing. At least 13 cases of Covid-19 had been reported in al-Hol and Roj as of December 2020. A greater outbreak could disproportionately harm camp and prison detainees as most are malnourished with severely limited access to medical services.
Detainees began receiving monthly handouts of masks and gloves in mid-2020 but they have to reuse them several times because of shortages, two women in Roj said.
Inhuman Prison Conditions
Despite some improvements, only one of the 14 makeshift prisons for male ISIS suspects is fit for the purpose, said a June 2020 US military report. The 10,000 men, most Syrian and Iraqi and 2,000 from other countries, are jammed into severely overcrowded cells with open latrines and poor ventilation. The prisons lack essential services including adequate medical care for festering wounds and infectious diseases including tuberculosis. Up to several hundred men have died in the prisons including one from Germany and another from the UK.
The 700 or more boys in the prisons are held separately from the men. About 400 are Syrian, 200 are Iraqi, and the rest come from several other countries, Chia Kurd said. The boys have access to outdoor courtyards, but have little access to education, recreation, and other essential services, he said.
Three well-informed sources speaking on condition of anonymity said that many of the boys in the prisons were taken from the camps where they lived with their mothers and siblings when they reached mid-adolescence and that some were as young as 12. Imprisoned Syrian boys can visit with families, but imprisoned foreign boys are not allowed visits with their mothers and siblings in the camps, Chia Kurd said. Between 100 and 110 more boys are living in a locked rehabilitation center. Services there, too, are “insufficient” due to a lack of aid, Chia Kurd said. The Autonomous Administration would like to transfer the boys in prisons to additional rehabilitation centers if foreign governments will build them, he said.
Chia Kurd said some of the boys were taken from the camps for families and elsewhere “for committing acts of violence” or for ISIS ideology, although Human Rights Watch received reports from local family support groups that at least some of the boys were taken simply because they had reached adolescence. UK-based Rights and Security International in 2020 reported that Syrian Democratic Forces forcibly disappeared dozens of boys from the camps.
The Kurdish-led coalition had prosecuted about 8,000 Syrians suspected of membership in ISIS and other armed groups in People’s Defense Courts as of early 2021, with about 4,000 more awaiting local prosecutions. The trials have been piecemeal with due process gaps and the Autonomous Administration has sought assistance from foreign governments to bring them in line with international standards. For two years, the Autonomous Administration has asked foreign governments to help it create a hybrid or international court to prosecute the detainees, Chia Kurd said. At times the regional authorities have proposed internationally supported local courts. But “the international community has not been cooperative with us,” he said.
Humanitarian Access
Medical and other supplies are scarce in the camps and prisons, in part because of difficulties aid workers face in gaining access to the region. Russia has since January 2020 used and threatened its veto power at the UN Security Council to force the closure of three of the four vital border crossings into Syria that UN agencies had used to transport medicine and other aid into the country. Turkey and Turkish-backed forces have also repeatedly cut offwater supplies to Autonomous Administration-held areas of northeast Syria, including al-Hol camp.
Representatives of four aid organizations said that these factors combined with mounting insecurity have forced many humanitarian organizations to suspend or scale back operations in northeast Syria.
Scant Repatriations
Despite the deplorable conditions, only 25 of nearly 60 home counties have repatriated any of their nationals from northeast Syria, and repatriation operations fell from 29 in 2019 to 17 in 2020 and 3 in the first 10 weeks of 2021, according to Save the Children and Human Rights Watch tallies. Kazakhstan, Kosovo, Russia, andUzbekistan have together brought home more than 1,200 of their citizens, about 85 percent of all returns. Repatriations by Western countries remain piecemeal. The UK, Australia, and Denmark have stripped citizenship of some nationals detained in northeast Syria, in some cases even when the revocation may leave them stateless.
A few countries, including Germany and Finland, have brought home some mothers with children. But others including Canada, the UK, and France have repatriated one or more children without their mothers and others, such as Sweden and Belgium, plan to do so. Systematic returns of children without their parents flout the Convention on the Rights of the Child, which states that countries should uphold the principle of family unity absent a professional assessment that separation “is necessary for the best interests of the child.” While governments obtain mothers’ written consent to take their children without them, Human Right Watch questions whether consent can be informed and voluntary for women indefinitely detained inside locked camps with no access to redress or counsel.
“If I had to choose again, I don’t know if I would have done it,” a Canadian mother in Roj said of her anguished decision to allow Canada to repatriate her 4-year-old daughter without her in March. “It’s the hardest sacrifice for a mother to make.”
Many governments contend that repatriations pose too much of a security risk. While governments have an obligation to keep people safe, security concerns do not obviate their parallel duty to uphold human rights, Human Rights Watch said. Moreover, as even the US-led coalition against ISIS argues, abandoning these detainees to indefinite confinement in dire conditions may pose a greater risk than bringing them home.
Men imprisoned as ISIS suspects in northeast Syria have repeatedly rioted and more than 100 have escaped to whereabouts unknown. With no way to leave legally, women are regularly paying traffickers to smuggle them and their children out of the locked camps, placing them at risk of being trafficked into forced labor and sexual exploitation, among other abuses, or of rejoining ISIS. Shunned by home countries, children may be vulnerable to recruitment by ISIS hardliners in the prisons and camps.
In contrast, repatriations or third-country transfers allow governments to conduct individual assessments of each returnee, monitor them as appropriate, and hold to account those who have committed serious international human rights crimes, a critical step in redress for thousands of ISIS victims.
Repatriations of the foreigners may also improve conditions for the Syrian ISIS suspects and family members whom the local authorities are also detaining in the camps and prisons. The Autonomous Administration has allowed more than 9,100 Syrians to return to their communities since 2019, including more than 2,600 under an amnesty it announced in October 2020, but thousands of others remain. As with the foreign detainees, the local authorities should release any Syrians held in degrading or inhuman conditions or without due process, and improve conditions for those who may not be able to return home because of risks that their communities may reject them or fears of returning to areas held by the government.
In January, UN Secretary-General António Guterres called repatriations by home countries, particularly of children, “an urgent and strategic counter-terrorism imperative.” The European Parliament and UNICEF have also called on member states to repatriate all children, taking into account the best interests of the child. The UN human rights commissioner, the UN counterterrorism chief, and 22 UN specialized human rights experts have called on home countries to repatriate their nationals as well. The 22 UN human rights experts noted that the “violence, exploitation, abuse and deprivation” suffered by foreign detainees in northeast Syria have resulted in deaths and in and of themselves “may well amount to torture or other cruel, inhuman or degrading treatment or punishment under international law,” with no effective remedy.
International Legal Standards
Countries have a responsibility to take steps to protect their citizens when they face serious human rights violations, including loss of life and torture. This obligation can extend to nationals in foreign countries when reasonable action by their home governments’ actions can protect them from such harm. International human rights law also provides that everyone has the right to a nationality. Governments have an international legal obligation to provide access to nationality for all children born abroad to one of their nationals who would otherwise be stateless, as soon as possible. All individuals have the rights to adequate food, water, clothing, shelter, and mental and physical health, and fair trials. All children have the right to education.
Detaining people in conditions that amount to inhuman or degrading treatment is strictly prohibited under human rights law.
The Autonomous Administration’s indefinite detention of these foreigners without due process, including their right to appear before a judge to review the legality and necessity of their confinement, is arbitrary and unlawful. The detention of ISIS suspects’ family members, particularly the children but also women who are not being investigated for any crimes, also amounts to guilt by association and collective punishment, prohibited under international law.
The arbitrary detention and lack of reintegration support for these children violates international principles for children associated with armed groups, who are to be viewed primarily as victims. UN Security Council Resolution 2396 of 2017, which is binding on all member states, emphasizes the importance of assisting women and children associated with groups such as ISIS who may themselves be victims of terrorism, including through rehabilitation and reintegration.
Resolution 2396 also calls on member states to investigate and prosecute suspects for involvement with foreign terrorist groups if appropriate. Given the absence of any fair trial proceedings for foreigners detained in northeast Syria, investigations by home countries remain the only viable option at this time to provide redress to victims for any serious crimes these detainees may have committed.
Countries with Citizens Detained in Northeast Syria
Citizens of at least 58 countries are reported to be detained in camps and prisons in northeast Syria: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bangladesh, Bosnia and Herzegovina, Canada, China, Denmark, Egypt, Estonia, Finland, France, Georgia, Germany, Indonesia, India, Iran, Iraq, Kazakhstan, Kyrgyzstan, Lebanon, Libya, Morocco, Maldives, North Macedonia, Malaysia, Netherlands, Norway, Pakistan, Palestine, Philippines, Poland, Portugal, Romania, Russia, Saudi Arabia, Senegal, South Africa, Spain, Sudan, Somalia, Serbia, Sweden, Switzerland, Tajikistan, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United States, Uzbekistan, Vietnam, and Yemen.
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Reacties uitgeschakeld voor [Human Rights Watch]/Thousands of Foreigners Unlawfully Held in NE Syria
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