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Civilians are the main casualties of the conflict. Both Israel and Palestine have ignored the basic principles of distinction and proportionality in their actions against or involving civilians. Palestinian groups have been responsible for an increased number of suicide bombings in Israel and for the killing of settlers. The Israel Defense Forces (IDF) have been responsible for a heavy loss of life in their military incursions, particularly in Nablus and Jenin, and rocket attacks on militants. Many of those killed in both Israel and Palestine have been children.
IDF incursions in the West Bank have resulted in large-scale arrests and detentions. Detainees have been treated in an inhuman and degrading manner, sometimes constituting torture. These incursions have been characterized by a massive destruction of property, estimated by the World Bank at $361 million.
Closures, checkpoints and curfews have destroyed freedom of movement for Palestinians, with disastrous consequences for human freedom, health, welfare and education.
Illegal settlements have continued to grow. Moreover, there is now a plan to build a fence or zone between Israel and the Occupied Palestinian Territory, which will result in a further annexation of Palestinian territory.
Fundamental norms of human rights law and international humanitarian law have been violated on a large scale. The destruction and disruption of the civil administration in the West Bank have serious implications for both the Palestinian people and the rule of law. Under the law, Israel, as the occupant, is obliged either to assume responsibility for civil administration itself or to permit the Palestinian Authority to carry out its functions properly. In terms of the Fourth Geneva Convention, all State Parties are required to ensure that this happens.
** In accordance with General Assembly resolution 55/222, part III, para. 10, the present report is being submitted beyond the 2 July deadline so as to include as much updated information as possible and the decision of the Economic and Social Council.
1. On 26 March 2002, the Special Rapporteur reported to the Commission on Human Rights at its fifty-eighth session on the situation of human rights in the Palestinian territories occupied by Israel since 1967. That report was based largely on a visit to the region in February 2002. Much has happened since then. Violence has escalated in both the Palestinian Territory and Israel, Israel has effectively reoccupied the Palestinian Territory and the peace process has completely stalled. Both the Security Council and the General Assembly have adopted resolutions, but to little avail.1 The present report makes no attempt to give a full account of the events of the past few months or of the failed attempts to restore peace in the region, which are matters of public record that have received wide coverage in the media (see also A/ES-10/186). Instead, it focuses on the principal violations of human rights and international humanitarian law. Inevitably, much will happen in the Occupied Palestinian Territory between the writing of the present report and its presentation. An addendum will therefore be submitted later, based on a visit to the region planned for late August.
II. Human rights and terrorism
2. Since 11 September 2001, the response to terrorism has dominated the world’s agenda and the protection of human rights has been reduced in importance. This is unfortunate as it is clear that the promotion and protection of human rights is the most effective method of combating terrorism. The relationship between terrorism and human rights is nowhere more evident than in the Middle East, where the violation of human rights in the Occupied Palestinian Territory has produced acts of terrorism in Israel, violating the most basic right to life, and this in turn has led to acts of military terror in the Occupied Palestinian Territory, with the inevitable suppression of basic human rights. In this situation, it serves little purpose to apportion immediate blame. It is far wiser to acknowledge that violations of human rights are a necessary consequence of military occupation and to address ways of ending this situation so that the cycle of violence is replaced by the increasingly difficult, but increasingly necessary, quest for peace and security.
III. Civilians: victims of the conflict
3. Civilians inevitably are the main casualties of armed conflict and civil strife. International humanitarian law seeks to limit harm to civilians by requiring that all parties to a conflict respect the principles of distinction and proportionality. The principle of distinction, codified in article 48 of the First Additional Protocol to the Geneva Conventions of 1977, requires that parties to the conflict shall “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited (article 51 (2)). The principle of proportionality codified in article 51 (5) (b) prohibits an attack on a military target which may be expected to cause incidental loss of civilian life, injury to civilians and damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. That these principles apply to both Israelis and Palestinians was confirmed by the High Contracting Parties to the Fourth Geneva Convention when, in a statement issued on 5 December 2001, they called on both parties to the conflict to:
4. Within Israel, most deaths have been caused by suicide bombers who have carried their lethal weapons of destruction on to buses and into busy shopping centres. Despite condemnation from the Palestinian Authority and prominent Palestinian community leaders — and the international community — this instrument of terror, which shows no regard for either the principle of distinction or that of proportionality, continues to be used by paramilitary Palestinian groups.
5. The Israel Defense Forces (IDF), presumably well educated in the rules of international humanitarian law, have likewise shown little regard for the principles of distinction or proportionality. Recent military incursions into the West Bank and the reoccupation of Palestinian towns and cities have resulted in heavy loss of civilian life. That was nowhere more apparent than in Operation Defensive Shield, in March and April 2002, in which the refugee camp of Jenin and the city of Nablus were subjected to heavy bombardment from air and land before IDF troops entered, employing bulldozers to facilitate their movement and allegedly using Palestinian civilians as human shields against snipers. Of the 80 persons killed in Nablus, 50 were civilians, and of the 52 killed in Jenin, 22 were civilians. Since November 2000, the IDF has targeted and killed a number of selected militants in precision bombings. These assassinations have often been carried out, however, with no regard for civilians in the vicinity. Of the 165 persons killed in such actions, at least one third have been civilians. A recent incident starkly illustrates the manner in which such attacks have sometimes been made. On 22 July, the IDF carried out a late night air strike, aimed at Hamas military leader Salah Shehada while he was in a densely populated residential area of Gaza City, which killed 15 persons (including 9 children) and injured over 150 others.
6. Many of the civilians killed have been children. In 2002, over 100 children have been killed, not in crossfire between Palestinian and Israeli forces, as is usually believed, but mainly when the IDF has randomly opened fire or shelled civilian neighbourhoods. Over 20 children have been killed “ collaterally” in the course of the assassination of militants.
IV. Detentions, inhuman treatment and children
7. The assaults on Palestinian towns in March and April in Operation Defensive Shield and subsequent military operations in the West Bank have resulted in massive arrests and detentions. In the period between 29 March and 5 May alone, some 7,000 Palestinians were arrested, of whom 5,400 had been released by that date.2 In many towns and refugee camps, all males between the ages of 16 and 45 were arrested. Most were held for several days only. Arrests of this kind constitute a form of collective punishment as in most instances there has been no regard for the personal responsibility of those arrested. In many cases, arrested persons have been subjected to humiliating and inhuman treatment. They have been stripped to their underpants, blindfolded, handcuffed, paraded before television cameras, insulted, kicked, beaten and detained in unhygienic conditions. Those not released are held without trial or access to a lawyer. Some are held in administrative detention; others are held in terms of Military Order 1500, issued on 5 April to permit lengthy detention of those arrested since 29 March. Military Order 1500 authorizes incommunicado detention for up to 18 days — which may be renewed for up to 90 days. There are widespread allegations of torture, consisting of sleep deprivation, severe beating, heavy shaking, painful shackling to a small chair, subjection to loud noise and threats of action against family members.
8. In my report of 6 March to the Commission on Human Rights (E/CN.4/2002/32), I drew attention to serious allegations of inhuman treatment and torture, of the kind described in the preceding paragraph, of juveniles detained and imprisoned for political offences, particularly throwing stones at members of the IDF. I stressed that such treatment violated important norms of international law contained in the Convention on the Rights of the Child (art. 37), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (arts. 1, 6) and the Fourth Geneva Convention (arts. 27, 31, 32, 76). I accordingly called upon the Israeli authorities to conduct a thorough investigation into those allegations (detailed fully in the reports of non-governmental organizations) carried out by an independent body outside the military, police and prison services. Sadly, no such action has been taken. On the contrary, the position of children has deteriorated still further. It is estimated that between 1 0 and 15 of the thousands recently detained are children.3 Moreover, there is evidence that many have been subjected to the same humiliating and inhuman treatment (sometimes amounting to torture) as adults, described above.
V. Curfews, checkpoints and the reoccupation of Palestine
9. Since the start of the second intifada, in September 2000, Israel has imposed a stranglehold on the lives of Palestinians by means of restraints on freedom of movement. First came the closure of international borders and the sealing off of Gaza from the rest of the Palestinian Territory. Second came the erection of 120 checkpoints on roads in the West Bank. Third, in 2002, came the curfew, not of a town or neighbourhood, but of a substantial portion of the nation. It is these measures, vigorously enforced by the IDF, which constitute the reoccupation of the Palestinian Territory.
10. The IDF operation “Determined Path”, commenced in mid-June, has resulted in the reoccupation of seven of the eight major West Bank urban centres and adjoining refugee camps and villages. Between 18 and 25 June, curfews were imposed on Jenin, Qalquiliya, Bethlehem, Nablus, Tulkarem, Ramallah and Hebron. That has subjected over 700,000 persons to a regime similar to house arrest which confines them to their homes, except every third or fourth day when the curfew is lifted for several hours to allow residents to obtain essential supplies. The curfew is strictly enforced by the IDF and there have been many incidents of shooting of civilians who had failed to observe the curfew.
11. That reoccupation by closure and curfew has affected every feature of Palestinian life. There have been shortages of basic foodstuffs; interference with medical services by the denial of access to doctors and hospitals; interruption of family contacts; and stoppages of education (at a particularly important time — that of end-of-year examinations). Municipal services, including water, electricity, telephones, and sewage removal have been terminated or interrupted; and the IDF has denied permission to repair damaged municipal service supply units. There has also been a near complete cessation of productive activity in manufacturing, construction and commerce as well as private and public services, which has had serious consequences for the livelihood of most of the population. Inevitably, the incidence of poverty has increased dramatically. In May, the World Food Programme estimated that food aid was a priority need for 620,000 Palestinians in the West Bank and Gaza.
12. No one is exempt from the curfew. Chairman Arafat himself has been confined to his compound in Ramallah and his supplies of electricity and water have been intermittently cut off.
VI. Destruction of property
13. The assaults on cities in the West Bank in Operation Defensive Shield, from 29 March to 7 May, left devastation in their wake. In Jenin, 800 dwellings were destroyed and many more damaged, leaving over 4,000 people homeless. Losses were estimated by the World Bank at $83 million. In Nablus, there was extensive damage to the old city, including religious and historic sites. Repair costs have been estimated by the World Bank at $114 million. Refugees were the hardest hit. In the military offensives of 27 February to 17 March and 29 March to 7 May, over 2,800 refugee housing units were damaged and 878 homes destroyed or demolished, leaving 17,000 persons homeless or in need of shelter rehabilitation. The World Bank estimates that Operation Defensive Shield caused physical damage amounting to $361 million in the West Bank as a whole, compared with the $305 million caused by damage in the first 15 months of the intifada.4 Private businesses suffered the most ($97 million), followed by housing ($66 million), roads ($64 million) and cultural heritage sites ($48 million).
14. In the past, there has often been a disciplined, retributive approach to the destruction of property. For instance, the houses of suspected militants have been demolished in a clinical display of collective punishment — a practice that continues to this day. The destruction of property in Operation Defensive Shield, however, had a wanton character that surprised even the harshest critics of the IDF. In many houses entered by the IDF, soldiers broke holes into the walls in order to reach neighbouring houses. Sometimes, holes were made from one apartment to another where it was possible for soldiers to have entered from a veranda or window. Worse still, there were reports of systematic trashing of homes, of wanton destruction of televisions and computers in homes, schools and office buildings and of looting.5
VII. Territorial integrity of the Occupied Palestinian Territory
15. The international community is united in its categorization of Jewish settlements in the West Bank and Gaza as contrary to article 49 (6) of the Fourth Geneva Convention, which prohibits an occupying power from transferring parts of its own civilian population into the territory it occupies. In numerous resolutions, the Security Council and the General Assembly have condemned the settlements as illegal and, in their Declaration of 5 December 2001, the High Contracting Parties to the Fourth Geneva Convention reaffirmed that position.
16. Today, there are some 190 settlements in the West Bank and Gaza, inhabited by approximately 390,000 settlers, of whom some 180,000 live in the East Jerusalem area. Settlements are linked to each other and to Israel by a vast system of bypass roads that have a 50- to 75-metre buffer zone on each side in which no building is permitted. These settlements and roads, which separate Palestinian communities and deprive Palestinians of agricultural land, have fragmented both land and people. In effect, they foreclose the possibility of a Palestinian State as they destroy the territorial integrity of the Palestinian Territory.
17. The relationship between settlers and Palestinians is an unhappy one and each side views the other with hostility, anger and suspicion. Protected by the Israeli military, and exempt from the jurisdiction of the courts of the Palestinian Authority, settlers have committed numerous acts of violence against Palestinians and destroyed Palestinian agricultural land and property. Since the beginning of the second intifada, incidents of settler violence have dramatically increased. Palestinian hostility towards settlers has grown alarmingly since the start of this intifada and many of the Israelis killed in the current conflict have been settlers or soldiers charged with the task of protecting settlements and roads leading to settlements. In the past few months, acts of terrorism against settlers have escalated as Palestinian militants have attacked settlements or buses en route to settlements.
18. Despite threats to the life and security of settlers, the Government of Israel has made no attempts to reduce the number of settlers. Indeed, it has refused to provide them with assistance in returning to Israel and has encouraged them to stay on settlements by continuing to offer cheap housing, discounted loans and tax incentives.6
19. Assurances by the Government of Israel that it will limit the growth of settlements cannot be reconciled with the facts. Settlements have continued to increase, mainly by means of informal “outposts” established in the proximity of existing settlements, officially tolerated if not officially authorized; and by means of the construction of new housing units in existing settlements. Since February 2001, a total of 44 “outposts” have been constructed, according to Peace Now, the Israeli peace and human rights movement. In July 2002, steps were taken to destroy some of the smallest, unpopulated outposts, a step castigated by YESHA, the settlers’ association, as an encouragement of terrorism. Politically, settlers wield considerable power within the Israeli body politic and this enables them virtually to dictate policy to the Government.
B. Fences and buffer zones
20. The failure to prevent Palestinian suicide bombers from reaching their targets in Israel has led to a new strategy on the part of the Government of Israel. This is the construction of a 360-kilometre security fence or zone comprising ditches, barricades, walls, monitored electrified fences and patrol roads to separate Israel from Palestine. The exact course and breadth of the fence/zone is uncertain but it is clear that it will not carefully follow the existing Green Line marking the pre-1967 borders between Israel and Jordan. Instead, it will encroach further on Palestinian territory by establishing a buffer zone several kilometres wide within Palestine and by incorporating settlements near to the Green Line. Moreover, it will incorporate East Jerusalem and neighbouring settlements, such as Ma’ale Adumim into Israel. This unilateral redrawing of the border in the name of security is simply a pretext for the illegal annexation of Palestinian territory.
VIII. The occupation from the perspective of international human rights and international humanitarian law
21. Speaking to the Security Council on 12 March 2002, the Secretary-General, Kofi Annan, called upon Israel to end its “illegal occupation” of the Palestinian Territory. Asked to explain why he used the term illegal to describe the occupation of the Palestinian Territory, he replied that “the Security Council and the General Assembly have both at various occasions declared aspects of Israeli occupation as illegal”. He noted, in particular, the building of settlements, the annexation of East Jerusalem and recent events in the region. The comments of the Secretary-General underscore the fact that it is by the law of occupation that Israel’s conduct must be judged and that many of its practices violate basic principles of that governing law.
22. The governing body of law is to be found in the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and international human rights conventions on civil and political rights, social, economic and cultural rights and the treatment of children, as supplemented by customary international law. That international human rights law forms part of the law of occupation is clear from article 27 of the Fourth Geneva Convention, which provides that the occupying power is to respect the fundamental rights of protected persons. According to the commentary of the International Committee of the Red Cross on this provision: “The right to respect for the person must be understood in its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers; it includes, in particular, the right to physical, moral and intellectual integrity — an essential attribute of the human person” (p. 201). The “rights of the individual” have been proclaimed, described and interpreted in international human rights instruments, particularly the international covenants on civil and political rights, and economic, social and cultural rights of 1966, and in the jurisprudence of their monitoring bodies. These human rights instruments therefore complement the Fourth Geneva Convention by defining and giving content to the rights protected in article 27. This is borne out by the Vienna Declaration adopted by the World Conference on Human Rights in 1993, which states that:
23. The most basic and fundamental rights have been violated in the course of the conflict in both the Occupied Palestinian Territory and Israel itself. The right to life, upon which all rights depend, has suffered dramatically as a result of terrorist suicide bombings in Israel, attacks on settlers in the Occupied Palestinian Territory and violence against Palestinians by the IDF, including acts of terrorism, assassination, military incursion and the shooting of civilians. The right to human dignity, freedom from torture and arbitrary arrest and the right to a fair trial have been violated on a large scale by Israeli military interventions in the West Bank. Freedom of movement has been completely destroyed for Palestinians by closures, checkpoints and curfews; and the right to property has been dramatically undermined by military offensives. Economic, social and cultural rights have likewise suffered. Curfews, checkpoints and the destruction of housing have violated articles 11 to 13 of the 1966 International Covenant on Economic, Social and Cultural Rights, which together recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, to the enjoyment of the highest attainable standard of physical and mental health, and to education. Sadly, many of the provisions of the Convention on the Rights of the Child have been violated. These include the right to life, to health care, to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, to education, to freedom from torture, inhuman treatment and arbitrary arrest, and to a fair trial as well as the obligation on States to “ensure to the maximum extent possible the survival and development of the child” (article 6 (2)). That Convention, moreover, requires States, in accordance with their obligations under international humanitarian law, “ to ensure protection and care of children who are affected by an armed conflict” (article 38 (4)).
B. Violations of international humanitarian law
24. Many of the most basic principles of international humanitarian law have also been violated. As shown in paragraphs 3 to 6 above, neither party to the conflict has shown respect for the principles of distinction and proportionality in their actions against or affecting civilians. The prohibition on collective punishment “and likewise all measures of intimidation or of terrorism” contained in article 33 of the Fourth Geneva Convention has been violated in many ways by the IDF, including by the destruction of property, curfews, and the arrest of all men between the ages of 16 and 45. The wanton destruction of property carried out as part of Operation Defensive Shield, particularly in Nablus and Jenin, cannot be reconciled with article 53 of the Convention, which prohibits the destruction of property “except where such destruction is rendered absolutely necessary by military operations”.
C. Civil administration in a state of occupation
25. The law governing occupation, reflected in international custom, the Hague Regulations of 1907 and the Fourth Geneva Convention, is designed to ensure that, notwithstanding the security needs of the occupying power, the day-to-day lives of civilians in an occupied territory will continue normally. In today’s world, this means that civilians must have adequate food, shelter, electricity and water; that municipal services such as garbage and sewage removal will continue; that the sick will have access to proper medical care; and that education will not be obstructed.
26. There is no single rule of international law that specifically states that a belligerent occupant is responsible for the civil administration of an occupied territory. There are, however, two sources of law that create such a responsibility: first, article 43 of the Hague Regulations and, second, provisions of the Fourth Geneva Convention. Article 43 is brief and fails to detail the obligations of the occupying power. It simply provides that:
The reason for the failure to spell out the duties of the occupant is that in 1907 “the establishment of a system of administration by the occupant was widely accepted in practice ... as mandatory”.7
28. In terms of the Oslo Accords, the responsibility for civil administration in the West Bank and Gaza was transferred to the Palestinian Authority. Today, however, the identity of the authority responsible for the civil administration of the West Bank and Gaza is not so clear. The military operations of 2002 have effectively destroyed much of the infrastructure of the Palestinian Authority. Electricity and water supplies have been cut, municipal services terminated, access to food denied, health care obstructed and education seriously interrupted. Does this mean that Israel is now obliged to assume responsibility for the civil administration of the Occupied Palestinian Territory?
29. Although Israel has announced that it anticipates a prolonged occupation of the Palestinian Territory, it clearly does not intend resuming responsibility for the civil administration of the territory.9 Rather than do this, it is considering handing over some of the $600 million due to the Palestinian Authority for customs’ duties and tax it has blocked since September 2000.10 Similarly, the Palestinian Authority, despite complaints that Israel has de facto scrapped the Oslo Accords, is understandably unwilling to contemplate surrendering the power of civil administration to Israel.
30. The current situation is untenable. Israel cannot, in terms of international humanitarian law, deny the Palestinian Authority the capacity to provide an adequate and functioning civil administration, and at the same time refuse to accept any responsibility for such an administration itself. In law, it is obliged either to assume this responsibility or to permit the Palestinian Authority to provide the services that comprise an adequate civil administration. There is a heavy burden on all parties to the Fourth Geneva Convention to take measures to ensure the restoration of a proper civil administration in the Palestinian Territory in accordance with their obligation under article 1 of the Convention “to ensure respect” for the Convention “in all circumstances”.
IX. Concluding remarks
31. The Occupied Palestinian Territory is a testing ground for human rights and humanitarian law. The great advances in these two bodies of law are undermined by a situation in which human rights and humanitarian law are denied and disregarded with no meaningful response from the international community. The rule of law is one casualty of the conflict in the Occupied Palestinian Territory, but the main casualties are the people of Palestine and of Israel .
1 See Security Council resolutions 1397 (2002), 1402 (2002) and 1405 (2002) as well as General Assembly resolution ES-10/10.
2 Statement by the State Attorney’s Office to the Israeli Supreme Court: HCJ 3239/02 Iyyad Ishaq Mahmud Mar’ab et al v. Commander of IDF Forces in the Judea and Samaria Area. Response by the Respondent, 5 May 2002, para. 14.
3 See the report on Israeli Practice towards Palestinian Children submitted by Defense for Children International, Palestine Section, to the Committee against Torture, May 2002.
4 International Herald Tribune, 16 May 2002.
5 Amnesty International, Israel and the Occupied Territories: The Heavy Price of Israeli incursions , 12 April 2002.
6 See further, B’Tselem, Land Grab: Israeli Settlement Policy in the West Bank, 2002.
7 E. Benvenisti, The International Law of Occupation (1993), pp. 4-5.
8 M. Greenspan, The Modern Law of Land Warfare (1959), pp. 230-235.
9 See the statements by Mr. Ben-Eliezer, Minister of Defence, and Major General Amos Gilad reported in the International Herald Tribune, 24 June.
10 International Herald Tribune, 23 July.