TWN Info Service on UN Sustainable Development (Nov17/02)
1 November 2017
Third World Network

Israel called to end 50 years of occupation of Palestine
Published in SUNS #8565 dated 1 November 2017

Geneva, 31 Oct (Kanaga Raja) - The Government of Israel should bring a complete end to the 50 years of occupation of the Palestinian territories in as expeditious a time period as possible, under international supervision, a United Nations human rights expert has recommended.

In his report to the seventy-second session of the UN General Assembly in New York, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Mr Michael Lynk (of Canada), said that States who administer another territory under international supervision - whether as an occupier or a mandatory power - will cross the red line into illegality if they breach their fundamental obligations as alien rulers.

The Special Rapporteur submitted that Israel's role as occupant has crossed this red line. The challenge now facing the international community is to assess this analysis and, if accepted, devise and employ the appropriate diplomatic and legal steps that, measure by measure, would completely and finally end the occupation.

"Israel's role as occupier in the Palestinian Territory - the West Bank, including East Jerusalem, and Gaza - has crossed a red line into illegality," said the rights expert in presenting his report to the General Assembly on 26 October.

"The laws of occupation are very clear that the occupying power cannot treat the territory as its own, nor can it make claims of sovereignty. Yet this has been Israel's pattern of governing the occupied Palestinian territory for most of its 50 years of rule," he added.

Mr Lynk noted that Israel was in non-compliance with more than 40 resolutions of the United Nations Security Council and with more than 100 resolutions of the General Assembly.

International law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace with justice will be pursued, he said in his report.

It is a tribute to the international community that it has sustained this vision of international law throughout its supervision of Israel's occupation of the Palestinian territory.

"But it is no tribute that - as the occupation deepened, as the occupier's intentions became crystal clear, and as its defiance grew - the international community recoiled from answering Israel's splintering of the Palestinian territory and disfiguring of the laws of occupation with the robust tools that international law and diplomacy provide. International law, along with the peoples of Palestine and Israel, have all suffered in the process."

The rights expert also pointed out that the human rights situation in the Occupied Palestinian Territory (OPT) following the fiftieth year of its occupation by Israel is in a state of severe deterioration.

The rights expert said the human rights and humanitarian law violations associated with the occupation impact every aspect of life for Palestinians living in the West Bank, including East Jerusalem, and Gaza.

SITUATION IN GAZA

In his report, the Special Rapporteur noted that since April 2017, Gaza has been facing a severe electricity crisis, which deteriorated even further over the course of June.

As of the time of writing of this report, no durable solution has been found, and the people of Gaza are living with often as little as four hours of electricity per day.

The right to health for Palestinians is of particular concern as a result of this crisis, as hospitals and medical facilities are severely affected by the lack of electricity.

In addition, water supplies are at risk, with most homes receiving water through the piped network for only a few hours every 3-5 days, while the desalination plants are functioning at only 15 per cent of their capacity.

More than 108 million litres of untreated sewage were reportedly being discharged into the Mediterranean every day.

The Special Rapporteur pointed out that the humanitarian crisis in Gaza - both the recent sharp decline in the situation as well as the long-term challenges faced in Gaza over the past ten years - is entirely human-made.

The current electricity crisis - the result of Israel's reduction in its supply of electricity to Gaza stemming from a decision of the Palestinian Authority (PA) prompted by the internal political divide between Hamas and Fatah - was entirely preventable.

In addition, Israel, as the occupying power, is obligated to ensure sufficient hygiene and public health standards in the occupied territory, as well as to ensure the provision of food and medical care to the population under occupation.

Compounding the health concerns raised by the electricity crisis are the increasing difficulties faced by patients seeking to travel through the Erez crossing out of Gaza for medical treatment.

The rate of Israel's denial or delay of permit requests rose in the second half of 2016.

In July 2017, the situation remained concerning. Of permit applications in the month of July, 42.6% were denied or delayed (787 applications).

SITUATION IN THE WEST BANK AND EAST JERUSALEM

The Special Rapporteur noted that his previous report had highlighted the sharp rise in announcements of new settlement construction seen at the start of 2016.

According to Peace Now, there have been tenders for construction of 2,858 housing units since the start of 2017, a significant increase over 2016 (42 housing units).

In addition, for the first time in 25 years, Prime Minister Benjamin Netanyahu announced a new settlement, on which ground was broken for construction in June.

Accompanying the announcements are a number of statements from political leaders calling for continued settlement expansion and in many cases annexation.

At the beginning of the year, Israel's Prime Minister Netanyahu reportedly said, in a meeting with members of the inner security cabinet, that he had lifted all restrictions on construction in East Jerusalem and that he would also advance construction in West Bank settlements.

"These statements, combined with the reality of the expansion of settlements and extensive announcements of new construction, put the two state solution on life support, with a fading pulse, and ensure the continuation of human rights violations associated with settlements, including limitations on freedom of movement affecting the rights to education and health, heightened risk of arrest and arbitrary detention, use of land and natural resources thus hindering Palestinians' right to development, and many others," said Mr Lynk.

In East Jerusalem, as in the rest of the West Bank, settlements as well as demolition of homes and displacement of Palestinians, is of deep concern, he added.

Prime Minister Netanyahu on 2 October 2017 announced his support for the Greater Jerusalem Bill - legislation that would reportedly extend the municipal boundaries of Jerusalem to include a number of settlements.

Accompanying moves such as this, demolitions and evictions of Palestinian residents of East Jerusalem continue at a high rate, with 116 total demolitions recorded from the start of the year through mid-September 2017, displacing 202 people.

50 YEARS OF OCCUPATION

The Special Rapporteur noted that in June 2017, Israel's occupation of the Palestinian territory - the West Bank, including East Jerusalem, and Gaza - marked its 50th anniversary.

"This is the longest-running military occupation in the modern world," he said.

Notwithstanding insistent calls by the international community, most recently in 2016, that the Israeli occupation must come to a complete end, that many of its features are in profound breach of international law, and that its perpetuation both violates the fundamental right of the Palestinian people to self-determination and undermines the possibility of a two-state solution, it has become more entrenched and harsher than ever.

Indeed, the Israeli occupation has become a legal and humanitarian oxymoron: an occupation without end.

"The inability to end the Israeli occupation has been an abject failure of international diplomacy, a darkening stain on the efficacy of international law and the source of multiple broken promises to the Palestinian people."

Nor does the prolongation of this occupation serve the people of Israel, for it corrodes their society and their public institutions by entangling them in their government's drive to foreclose a viable and just solution to the half-century of occupation and the century-long conflict, and makes them the beneficiaries - unwittingly or not - of a profoundly unequal and unjust relationship.

"If Israel's occupation of the Palestinian territory by 1980 was already prolonged and already a matter of overwhelming necessity to end, and Israel had already demonstrated by 1980 its unwillingness to comply with the explicit directions of the international community, how are we in 2017 to characterize the occupation?"

The prevailing approach of the international community has been to treat Israel as the lawful occupant of the Palestinian territory, albeit an occupant that has committed a number of grave breaches of international law in its conduct of the occupation, including the settlement enterprise, the construction of the Wall, the annexation of East Jerusalem and the systemic violations of Palestinian human rights.

In the view of the Special Rapporteur, while the lawful occupant approach may have been the appropriate diplomatic and legal portrayal of the occupation in its early years, it has since become wholly inadequate both as an accurate legal characterization of what the occupation has become and as a viable political, diplomatic and legal catalyst to compel Israel to completely and finally terminate the occupation in accordance with its international legal obligations.

The rights expert noted that created in the aftermath of the bitter experiences of total war and extreme civilian suffering in the 19th and 20th centuries, international humanitarian law is embodied in the 1907 Hague Regulations, the 1949 Fourth Geneva Conventions and the 1977 Additional Protocol 1, among other instruments, as well as in the practices of the modern world.

According to Mr Lynk, Israel has occupied the Palestinian territory - the West Bank, including East Jerusalem, and Gaza - since June 1967. As such, the Fourth Geneva Convention applies in full.

This legal determination has been affirmed by the United Nations Security Council on a consistent and regular basis, starting at the very beginning of the occupation in June 1967 and restated most recently in December 2016.

This is also the position stated at a 2014 meeting of High Contracting Parties to the Fourth Geneva Convention.

As such, the Palestinians in the occupied territory are "protected persons" under international humanitarian law, and are entitled to all of the protections of the Fourth Geneva Convention.

"Israel has denied the application of the Fourth Geneva Convention, and does not recognize the Palestinian territory as being occupied, a position that the international community has widely rejected."

In this regard, the Special Rapporteur proposed a four-part test to determine whether an occupier is administering the occupation in a manner consistent with international law and the laws of occupation, or whether it has exceeded its legal capacity and its rule is illegal.

As the Israeli occupation of the Palestinian territory has lengthened in time, and with many of its features found to be in flagrant violation of international law, some international legal scholars have raised the issue of whether an occupation that was once regarded as lawful can cross a tipping point and become illegal, he said.

According to the rights expert, the four elements of the lawful occupant test are:

(i) The belligerent occupier cannot annex any of the Occupied Territory;

(ii) The belligerent occupation must be temporary, and cannot be either permanent or indefinite. The occupant must seek to end the occupation and return the territory to the sovereign as soon as reasonably possible;

(iii) During the occupation, the belligerent occupier is to act in the best interests of the people under occupation;

(iv) The belligerent occupier must administer the occupied territory in good faith, including acting in full compliance with its duties and obligations under international law and as a member of the United Nations.

The rights expert said the principle of good faith is a cornerstone principle of the international legal system, and has become an integral part of virtually all legal relationships in modern international law.

It has been described as the "cardinal rule of treaty interpretation", which dominates and underlies the entire interpretive process.

Thus, under international law, a belligerent occupier is required to govern an occupied territory in good faith, said the rights expert.

This can be measured by whether the occupying power fulfills each of the three core principles governing an occupation stated above: (i) it does not annex any of the occupied territory; (ii) it rules on a temporary basis only; and (iii) it governs in the best interests of the protected people.

As well, a belligerent occupier governing in good faith would also be required to: (iv) comply with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation, and (v) comply with the specific precepts of international humanitarian law and international human rights law applicable to an occupation.

According to the Special Rapporteur, Israel's formal annexation of East Jerusalem in 1967 and 1980, and its de facto annexation of significant parts of the West Bank, are intended to solidify its claim for sovereignty.

"This constitutes a flagrant breach of the absolute prohibition against annexation and violates Israel's obligations under international law."

Beyond Jerusalem, he said, Israel is actively establishing the de facto annexation of parts of the occupied West Bank.

In the West Bank, Israel exercises complete control over Area C (making up 60 per cent of the West Bank), where its 400,000 settlers live in approximately 225 settlements.

The settlers live under Israeli law in Israeli-only settlements, drive on an Israeli-only road system, and benefit greatly from the enormous sums of public money spent by Israel on entrenching, defending and expanding the settlements.

Few of these benefits, except incidentally, flow to the Palestinians in Area C. Only one per cent of Area C is designated for Palestinian use, notwithstanding the approximately 300,000 Palestinians who live there.

"What country would invest so heavily over so many years to establish so many immutable facts on the ground in an occupied territory if it did not intend to remain permanently?" Mr Lynk asked.

Israel's occupation is 50 years old, and counting, Mr. Lynk noted. The duration of this occupation is without precedent or parallel in today's world.

Modern occupations that have broadly adhered to the strict principles concerning temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led coalition's occupation of Iraq.

Employing the precept that the longer the occupation, the greater the onus on the occupying power to justify its continuation, the rights expert said Israel lacks any persuasive reason to remain as the occupant after 50 years.

"The only credible explanation for Israel's continuation of the occupation and its thickening of the settlement regime is to enshrine its sovereign claim over part or all of the Palestinian territory, a colonial ambition par excellence."

Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the significant financial, military and political resources committed to the enterprise belies any intention on its part to make the occupation temporary.

Every Israeli government since 1967 has left office with more settlers living in the occupied territory than when it assumed office.

The Israeli occupation has long exceeded the temporariness principle under international law. It has not acted in a manner consistent with the requirement that it take all necessary steps to bring the occupation to a successful close in as reasonable and expeditious a time period as possible. Indeed, far from it.

The rights expert said that whether the occupation is said to be indefinite or permanent, the lack of a persuasive justification for its extraordinary duration places Israel, as the occupying power, in violation of international law.

Under international law, Israel is required to administer the occupied Palestinian territory in the best interests of the Palestinian people, the protected people under occupation, subject only to justified security concerns.

It is prohibited from governing the occupied territory in an acquisitive or self-interested manner.

Contrary to these requirements, Israel has acted in its own expansionary interests unaccompanied by most of the responsibilities attached to a belligerent occupier.

The social and economic impact of the occupation on the Palestinians in the occupied territory, which had always been disadvantageous, has become increasingly dire in recent years.

According to recent reports by the World Bank and the United Nations, the expanding Israeli settlement enterprise and the supporting apparatus of occupation has deepened the already separate and distinctly inferior civil and economic conditions imposed upon Palestinians in the West Bank.

On the probative evidence, Israel, the occupying power, has ruled the Palestinian Territory as an internal colony, deeply committed to exploiting its land and resources for Israel's own benefit, and profoundly indifferent, at very best, to the rights and best interests of the protected people.

"As such, Israel is in breach of its obligations to administer the occupation as a trustee for the well-being of the protected people under occupation."

According to the Special Rapporteur, whether measured by the criteria of substantive compliance with United Nations resolutions or by the satisfaction of its obligations as occupier under the framework of international law, Israel has not governed the Occupied Palestinian Territory in good faith.

"As a UN member state with obligations, it has repeatedly defied the international community's supervisory authority over the occupation. As the occupant, it has consciously breached many of the leading precepts of international humanitarian law and international human rights law that govern an occupation."

The Special Rapporteur recommended that the United Nations General Assembly:

(a) Commission a United Nations study on the legality of Israel's continued occupation of the Palestinian territory;

(b) Consider the advantages of seeking an advisory opinion from the International Court of Justice on the question of the legality of the occupation;

(c) Consider commissioning a legal study on the ways and means that UN Member States can and must fulfill their obligations and duties to ensure respect for international law, including the duty of non-recognition, the duty to cooperate to bring to an end a wrongful situation and the duty to investigate and prosecute grave breaches of the Geneva Conventions.

(d) Consider the adoption of a Uniting for Peace resolution with respect to the Question of Palestine, in the event that there is a determination that Israel's role as occupier is no longer lawful.