Civil Society Calls for Effective Measures to Lift Closure of Gaza and Counter Israel’s Annexation Plans

 

• Joint Written Statement
• United Nations Human Rights Council
• 44^th Regular Session – Item 7

Human rights situation in Palestine and other occupied Arab territories

Human Rights Council Must End Illegal Closure of Gaza as Collective Punishment

Date: 4 June 2020

Submitted by:

• Al-Haq, Law in the Service of Man
• Al Mezan Centre for Human Rights
• Palestinian Centre for Human Rights
• Cairo Institute for Human Rights Studies

Around the world, COVID-19 has exacerbated situations of institutionalised discrimination, shedding light on structural violence impacting the right to health and denying individuals and peoples their inalienable rights. COVID-19 has brought to the forefront Israel’s institutionalised regime of systematic racial domination and oppression over all Palestinians,^[1] amounting to the crime of apartheid.^[2] For decades, Israel has entrenched apartheid through the strategic fragmentation of the Palestinian people, including the denial of Palestinian refugee return and the prolonged closure of the Gaza Strip, which has systematically isolated and separated Palestinians in Gaza from the rest of the Palestinian people. This joint written statement to the United Nations (UN) Human Rights Council highlights Israel’s illegal closure of Gaza as entrenching Israeli apartheid and calls for effective measures to immediately lift the closure and address root causes.

1. Impact of COVID-19 in the Context of Israeli Apartheid

In 2017, the UN Economic and Social Commission for Western Asia found that Israel’s strategic fragmentation of the Palestinian people into four separate legal, political, and geographic domains constitutes the main tool for entrenching apartheid over the Palestinian people.[3] This fragmentation has been particularly visible during COVID-19: preventing Palestinians from responding to the pandemic as a collective, while entrenching their susceptibility as a result of increased movement restrictions hindering access to essential services, including healthcare.^[4]

The Palestinian people suffer systematic policies of institutionalised oppression and neglect, resulting in denial of access to adequate water and sanitation,^[5] as well as overcrowding, particularly in Palestinian refugee camps, Israeli prisons and detention centres, and Palestinian neighbourhoods in East Jerusalem, separated from the rest of the city by the Annexation Wall. In Gaza, where some two million Palestinians live in one of the world’s most densely-populated areas, the health system already faced collapse before the pandemic, with only four per cent of Gaza’s fresh water fit for human use and consumption. Thus, all efforts in Gaza have focused on containing COVID-19 and preventing an uncontrolled and potentially catastrophic spread.

By strategically fragmenting the Palestinian people and the occupied Palestinian territory, Israel ensures that Palestinians are denied the right to exercise any collective rights, including their right to self-determination and the right of Palestinian refugees and displaced persons to return to their homes, lands, and property, of which they have been systematically deprived since 1948.[6] As such, any genuine response to COVID-19 must not only ensure the fulfilment of the right to health of all Palestinians but effectively address the root causes of continued oppression and domination.[7]

2. Illegality of Israel’s closure of Gaza

In addition to ongoing Nakba since 1948, and prolonged occupation since 1967, Gaza has been under intensified closure since 2007, with restrictions on movement and access imposed since the early 1990s.^[8] The international community has widely regarded Israel’s closure of Gaza, which enters its 13th year this June, as illegal. In 2013, the UN Secretary-General considered that “the blockade and related restrictions target and impose hardship on the civilian population, effectively penalizing them for acts they have not committed,” therefore amounting to collective punishment in violation of Article 33 of the Fourth Geneva Convention.^[9] Israel’s closure has deprived the Palestinian people of their means of subsistence, as part of their collective right to self-determination,^[10] and amounts to prohibited ill-treatment.^[11] It further constitutes the crime of persecution,^[12] which gives rise to individual criminal responsibility at the International Criminal Court (ICC).^[13] For 13 years, Israel’s closure has undermined all aspects of life in Gaza, denying Palestinians the enjoyment of all rights without discrimination. Palestinians in Gaza now face profound levels of poverty, aid-dependency, food insecurity, and unemployment, as well as the collapse of essential services.^[14] The UN has repeatedly warned that the Gaza Strip will become uninhabitable by 2020 should Israel fail to lift the closure.^[15]

3. Failure of third States to act despite calls for lifting the closure

Third States, including Member States of the Human Rights Council, have repeatedly failed to adopt effective measures to end the Gaza closure, to address root causes, and to uphold the inalienable rights of the Palestinian people, despite various UN bodies, experts, and officials, having repeatedly called for Israel’s illegal closure of Gaza to be lifted.

In February 2019, the UN Commission of inquiry on the 2018 protests in the occupied Palestinian territory recommended that Israel, the occupying power: “Lift the blockade on Gaza with immediate effect.”^[16] In March 2019, the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Michael Lynk, “endorsed the Commission’s call for an immediate lifting of the Israeli blockade of Gaza, which has repeatedly been described … as a prohibited form of collective punishment.”^[17] On 22 March 2019, Member States of the Human Rights Council adopted the recommendations of the Commission of inquiry and committed to pursuing their implementation.^[18]

In November 2019, the Committee on Economic, Social and Cultural Rights urged Israel to “immediately lift the blockade on and the closures affecting the Gaza Strip and provide unrestricted access for the provision of urgent humanitarian assistance.”^[19] In December 2019, the Committee on the Elimination of Racial Discrimination (CERD) called on Israel to “review its blockade policy and urgently allow and facilitate the rebuilding of homes and civilian infrastructures, ensure access to necessary urgent humanitarian assistance as well as to the right to freedom of movement, housing, education, health, water and sanitation.”^[20] CERD also found that Israel’s closure of Gaza is inconsistent with the prohibition on racial segregation and apartheid.^[21]

All High Contracting Parties to the Fourth Geneva Convention have a legal duty under Common Article 1 to “respect and to ensure respect for the … Convention in all circumstances,” including to bring an end to all forms of collective punishment imposed by Israel, the occupying power, over the Palestinian people. Third States have systematically failed to uphold this obligation.

4. Conclusion and recommendations

Within the context of Israel’s pervasive impunity for widespread and systematic human rights violations committed against the Palestinian people, third States have a responsibility to ensure international justice and accountability. At the Human Rights Council, States must end Israel’s illegal closure of Gaza and address root causes entrenching Israeli apartheid. Accordingly, we call on the Council and all UN Member States to:

1. Adopt effective measures to implement Human Rights Council resolution 40/13 within a clear and specified time frame and without any further delay;
2. Welcome the forthcoming June 2020 report on collective punishment by the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, and act to end all forms of collective punishment imposed over the Palestinian people, including Israel’s illegal closure of Gaza;

• Overcome Israel’s strategic fragmentation of the Palestinian people by welcoming CERD’s 2019 concluding observations on Israel,[22] which highlighted Israeli policies and practices of racial segregation and apartheid targeting the Palestinian people on both sides of the Green Line;

1. Reconstitute the UN Special Committee against Apartheid and the UN Centre against Apartheid and expand the mandate of the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967 to cover the Palestinian people as a whole, on both sides of the Green Line and as refugees and exiles abroad, and call on the Special Rapporteur to report annually to the Human Rights Council and the Third Committee of the General Assembly on steps taken to comply with the terms of the 1973 Apartheid Convention;
2. Pursue international justice and accountability for suspected crimes committed against the Palestinian people by activating universal jurisdiction mechanisms to try suspected perpetrators in their own jurisdictions and supporting a full, thorough, and comprehensive ICC investigation into the Situation in Palestine.

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• Joint Written Statement
• United Nations Human Rights Council
• 44^th Regular Session – Item 7

Human rights situation in Palestine and other occupied Arab territories

Third States Must Act to Prevent Further Israeli Annexation of Occupied Palestinian Territory

Date: 4 June 2020

Submitted by:

• Al-Haq, Law in the Service of Man
• BADIL Resource Center for Palestinian Residency and Refugee Rights
• Cairo Institute for Human Rights Studies

The Israeli government seeks to annex large parts of the occupied West Bank starting 1 July 2020, in violation of the prohibition on the acquisition of territory by force. This follows years of de facto annexation of occupied Palestinian territory, in addition to the de jure annexation of occupied East Jerusalem and the occupied Syrian Golan since 1967. While the international community has repeatedly reiterated the illegality of Israeli annexation, it has failed to adopt effective measures to reverse illegal facts on the ground. This written statement to the United Nations (UN) Human Rights Council calls on third States to abide by their responsibility to cooperate to bring the illegal situation to an end and to uphold the inalienable rights of the Palestinian people.

1. The prohibition of annexation

The prohibition on the acquisition of territory by force is enshrined as a cardinal principle in Article 2(4) of the UN Charter. Moreover, annexation is absolutely prohibited as an act of aggression under international humanitarian law. Under Article 47 of the Fourth Geneva Convention (1949), “Protected persons who are in occupied territory shall not be deprived… of the benefits of the present Convention by any change introduced, as the result of the occupation… nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.” The 1958 Commentary to the Fourth Geneva Convention provides that “occupation as a result of war… cannot imply any right whatsoever to dispose of territory”[23] and that “the Occupying Power cannot therefore annex the occupied territory.”[24] The Commentary further stresses: “an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.”[25]

2. Responsibility of non-recognition

The prohibition on annexation, as jus cogens, gives rise to erga omnes obligations on all States not to recognise the illegal situation, not to render aid or assistance in its maintenance, and to cooperate to bring the illegal situation to an end.[26] In 1980, when Israel entrenched its illegal annexation of East Jerusalem, the Security Council determined in resolution 478 (1980) “that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem… are null and void and must be rescinded forthwith.”[27] Deciding not to recognise Israel’s ‘basic law,’ the Security Council called on “Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.”[28] Yet, the Security Council did not adopt any effective measures towards that end. In 1981, the Security Council again failed to adopt sanctions against Israel for imposing its laws, jurisdiction, and administration on the occupied Syrian Golan. Instead, it reaffirmed “that the acquisition of territory by force is inadmissible,”[29] and decided “that the Israeli decision … is null and void and without international legal effect.”[30] At the time, the General Assembly adopted resolution ES-9/1 of 5 February 1982, under the ‘uniting for peace’ resolution, and called on “all Member States to cease forthwith, individually and collectively, all dealings with Israel in order to totally isolate it in all fields.”[31]

3. Responsibility not to render aid or assistance

In 2016, the Security Council, considering in resolution 2334 (2016) that the establishment of Israeli settlements “has no legal validity,”[32] reiterated its demand “that Israel immediately and completely cease all settlement activities,”[33] and called “upon all States … to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”[34] On 12 February 2020, the Office of the High Commissioner for Human Rights released an incomprehensive[35] database of businesses involved with illegal Israeli settlements, listing 112 companies, including 18 multinationals. The database, mandated by Human Rights Council resolution 31/36 (2016), is to be annually updated, and would serve as a tool for transparency and accountability to be used by States, businesses, and civil society on relevant corporate activities in the occupied Palestinian territory in violation of international law. As primary duty bearers, States have a responsibility to protect against human rights abuses by third parties, including businesses that “have, directly and indirectly, enabled, facilitated and profited from the construction and growth of the settlements.”[36] Home States of companies operating in or with Israeli settlements, including those listed in the database, must take measures in accordance with their responsibility to ensure respect for international human rights and humanitarian law by businesses in their jurisdiction. States should impose mandatory enhanced human rights due diligence for such businesses to assess and prevent their complicity in international law violations. Businesses operating in contexts of prolonged occupation and creeping or de jure annexation should take all necessary steps, including divestment and disengagement, to meet their responsibilities and avoid complicity in grave breaches. Moreover, States should ban products and services originating from illegal settlements as part of their responsibility not to recognise nor render aid or assistance in the maintenance of the illegal situation.

4. Responsibility to bring the illegal situation to an end

Third States have systematically failed in their responsibility not to render aid or assistance in the maintenance of Israeli breaches of international law, including through corporate complicity in illegal settlements, while no effective measures have ever been taken to bring the illegal situation to an end. Instead, third States have even proven complicit in maintaining the illegal situation, particularly the United States (US), which legitimises and even rewards[37] Israel for its serious breaches: in December 2017, the US recognised Jerusalem as Israel’s capital, in violation of the city’s status under international law; in May 2018, the US unlawfully relocated its embassy from Tel Aviv to Jerusalem, followed by a number of other States; in September 2018, the US decided to defund the UN Relief and Works Agency for Palestine Refugees in an effort to undermine the rights of Palestinian refugees, in particular to return; in March 2019, the US unlawfully recognised Israeli sovereignty over the occupied Syrian Golan; and in January 2020, the US issued its so-called “Peace to Prosperity” plan, entrenching Israeli apartheid over the Palestinian people.[38]

5. Conclusion and recommendations

The persistent failure of third States to hold Israel to account, including to adopt sanctions to bring the illegal situation to an end, entails severe and far-reaching consequences for the efficacy of the international system. Accordingly, we emphasize the need for justice and accountability to put an end to Israeli impunity. In light of the above, we call on the Human Rights Council and on all UN Member States to:

1. Abide by their responsibility of non-recognition and non-assistance with regards to Israeli annexation, colonisation, and apartheid, and cooperate to bring an end to the illegal situation;
2. Denounce Israeli changes to the legal status, character, and demographic composition of occupied Palestinian and Arab territories and withdraw their embassies from Jerusalem;

• Adopt a resolution during the 44^th Regular Session of the Human Rights Council to prevent Israel’s annexation of parts of the occupied West Bank;

1. Reject the US “Peace to Prosperity” plan, and any other proposal seeking to undermine the inalienable rights of the Palestinian people, including the right of the Palestinian people to self-determination and the right of return of Palestinian refugees and displaced persons to their homes, lands, and property, as mandated by international law;
2. Welcome the release of the UN database and commit to supporting its annual update, including by providing continuous financial resources to deliver the mandate of Human Rights Council resolution 31/36 (2016), as an important accountability tool for States, investors, companies, and civil society on direct and indirect business involvement in illegal Israeli settlements;
3. Pursue international justice and accountability for suspected crimes committed against the Palestinian people by trying suspected perpetrators in their own jurisdictions and publicly supporting and cooperating with a full, thorough, and comprehensive investigation by the International Criminal Court into the Situation in Palestine.

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^[1] Al-Haq, “Israeli Apartheid Undermines Palestinian Right to Health Amidst COVID-19 Pandemic,” 7 April 2020, http://www.alhaq.org/advocacy/16692.html.
^[2] Article 7(2)(h), Rome Statute of the International Criminal Court.
[3] E/ESCWA/ECRI/2017/1, p. 4.
^[4] WHO, Monthly Access Report, April 2020, http://www.emro.who.int/images/stories/palestine/documents/April_2020_Monthly.pdf?ua=1%EF%BB%BF.
^[5] Al-Haq, “On World Water Day, Al-Haq Recalls Israeli Water-Apartheid Amidst a Global Pandemic,” 23 March 2020, http://www.alhaq.org/advocacy/16625.html.
[6] Al-Haq, “Palestinian, regional, and international groups submit report on Israeli apartheid to UN Committee on the Elimination of Racial Discrimination,” 12 November 2019, http://www.alhaq.org/advocacy/16183.html.
[7] Bram Wispelwey and Amaya Al-Orzza, “Underlying Conditions,” LRB, 18 April 2020, https://www.lrb.co.uk/blog/2020/april/underlying-conditions.
^[8] Al-Haq, “Gaza Closure Enters its Tenth Year,” 19 June 2017, http://www.alhaq.org/advocacy/6335.html.
^[9] A/HRC/24/30, para. 22.
^[10] Article 1, ICCPR and ICESCR.
^[11] Article 7, ICCPR; Article 16, CAT.
^[12] Article 7(1)(h), Rome Statute of the International Criminal Court.
^[13] See Al Mezan, “Palestinian Human Rights Organizations & Victims’ Communication to the ICC on the Illegal Closure of the Gaza Strip,” 23 November 2016, http://www.mezan.org/en/post/21630.
^[14] UNCT oPt, “Gaza Ten Years Later,” July 2017, https://unsco.unmissions.org/sites/default/files/gaza_10_years_later_-_11_july_2017.pdf.
^[15] E.g. TD/B/62/3.
^[16] A/HRC/40/74, para. 122(a).
^[17] OHCHR, “Accountability needed to end excessive use of force against Palestinian protesters in Gaza, says UN expert,” 5 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24255&LangID=E.
^[18] A/HRC/RES/40/13.
^[19] E/C.12/ISR/CO/4, para. 11(a)
^[20] CERD/C/ISR/CO/17-19, para. 45.
^[21] Al-Haq, “Human rights organisations welcome Concluding Observations of the UN Committee on the Elimination of Racial Discrimination on racial segregation and apartheid on both sides of the Green Line,” 21 December 2019, http://www.alhaq.org/advocacy/16324.html.
[22] CERD/C/ISR/CO/17-19.
[23] Jean Pictet (edn), The Geneva Conventions of 12 August 1949: Geneva convention relative to the protection of civilian persons in time of war, Volume 4, ICRC, 1958, at 275.
[24] Ibid.
[25] Ibid, at 276.
[26] Articles 40-41, Draft Articles on State Responsibility of States for Internationally Wrongful Acts, 2001.
[27] S/RES/478 (1980), para. 3.
[28] Ibid, para. 5(b).
[29] S/RES/497 (1981), Preamble.
[30] Ibid, para. 1.
[31] A/RES/ES-9/1, para. 13.
[32] S/RES/2334 (2016), para. 1.
[33] Ibid, para. 2.
[34] Ibid, para. 5.
[35] Al-Haq, “Over 75 Organisations Commend UN High Commissioner for Human Rights, Michelle Bachelet, on the Release of the Database of Businesses Involved in Illegal Israeli Settlements,” 25 March 2020, http://www.alhaq.org/advocacy/16637.html.
[36] A/HRC/22/63, p. 20.
[37] Al-Haq, “Al-Haq’s Open Letter to the UN Security Council on Israel’s Plans to Annex the West Bank,” 23 April 2020, http://www.alhaq.org/advocacy/16769.html.
[38] Al-Haq, “Palestine: United States Plan to Entrench Israel’s Apartheid Regime Must be Rejected,” 5 February 2020, http://www.alhaq.org/advocacy/16429.html.