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The Case of Palestine

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The Case of Palestine Background documents Exploring strategies for transnational litigation: the case of Palestine Round Table 14 – 15 December 2015 Public Debate 14 December 2015 Palestinians and the Israeli Court System: Litigating Violations of International Humanitarian and Human Rights Law before Israeli Courts. The Nuhanovic Foundation 2 Introduction to Reader TABLE of CONTENTS Foreword p. 4 Introduction p. 5 Documents p. 11 1. Yesh Din; Exceptions: Prosecution of IDF soldiers during and after the second Intifada, 2008. Excerpt: The selected sections give an idea of the types of violations committed against Palestinian civilians and some statistics on the numbers and results of investigations carried out. 2. Yossi Wolfson (for HaMoked) The Right to Compensation for the Violation of Human Rights, 2008. The author considers the fundamental nature of the right to compensation for HR and IHL violations and the obstructions to obtaining compensation for those in the occupied Palestinian territories. 3. R.Goldstone; Report of the UN Fact-finding mission on the Gaza Conflict [of Dec 2008-Jan 2009], Sept. 2009, Excerpt: Part IV (pp 383-404). Part Four of the “Goldstone Report” reviews accountability mechanisms in Israel and Palestine and considers the potential of using universal jurisdiction to address the violations in question. 4. M.Sfard; The Price of internal legal opposition to HR abuses, in Journal of Human Rights Practice Vol.1 (1) 2009, pp 37-50. The author analyses 35 years of human rights related litigation in Israel and considers whether litigating in the courts of the occupier in fact helps to sustain and legitimize the occupation. 5. Public (“Turkel”) Commission report on Israel’s Mechanisms for Examining and Investigating Complaints and Violations of the Laws of Armed Conflict According to International Law, 2013. Excerpt: the reader presents the Commission’s own summary of its 18 recommendations to the Israeli government, including significant changes to both legislation and procedure and increased separation of military/judicial and executive powers (independence of the Military Attorney General). 6. University of Birzeit; Conference report: Law and Politics: Options and Strategies of International Law for the Palestinian People, July 2013 7. R.Falk; Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian territories occupied since 1967, 2014. Excerpt: the excerpt presents the author’s conclusions on Israel’s denial of Palestinians’ right of self-determination, by practices and policies which may constitute apartheid and segregation. His 8 recommendations are addressed to the State of Israel and to third States. 8. Israel State Comptroller’s Inquiry 2015. This press release confirms that the State Comptroller and Ombudsman’s office is currently conducting an inquiry into the decision-making and investigation procedures of the military and political echelons during “Operation Protective Edge” – the war in Gaza in the summer of 2014. The inquiry is in part a response to the recommendations of the Türkel Commission report (No.5 in this reader). 9. Yesh Din; The Ciechanover Report – Dodging the Criminalization of War Crimes and Practical Steps towards Implementation - position paper, October 2015. The Ciechanover Commission was appointed to review and implement the recommendations of the Türkel commission (No.5 in the 3 Introduction to Reader reader). The authors criticize the Commission for failing to stipulate the concrete practical steps needed to impel the implementation of the Türkel commissions recommendations 10. Yesh Din; Data sheet: Prosecution of Israeli Civilians Suspected of Harming Palestinians in the West Bank, May 2015. Up to date statistics on investigations into and prosecutions of Israeli civilians suspected of harming Palestinians in the occupied territories 11. Yesh Din, Data sheet: Law Enforcement on IDF soldiers suspected of harming Palestinians – Figures for 2014, Dec. 2015 Legislation 12. International Criminal Court, Office of the Prosecutor; Report on Preliminary Examination Activities for 2015, Excerpt: The section on Palestine includes the procedural history of Palestine’s accession to the ICC on 2 Jan.2015, leading to the opening of a preliminary examination by the Prosecutor’s Office, a very brief sketch of events in Palestine since June 2014 and an account of how the Office of the Prosecutor has been conducting the examination so far. 13. Israeli (Torts) State Liability Law (1952) with Amendment 7 (2005). This is the Law regulating the extent of Israel’s liability to pay compensation to persons injured by actions of the Israeli security forces. The operative article for the purposes of this public debate and reader is Article 5c which has here been amended to broaden the scope of exclusions. 14. Al Mezan; No Reparations in Israel for Palestinians: How Israel’s Amendment No.8 Leaves No Room for Recourse, July 2015. This Comment explains the effect of Amendment No. 8 (2012) of the Israeli (Torts) State Liability Law (No.12 in the reader). The Amendment widens - once again - the category of situations which preclude the possibility of compensation claims being brought against the State of Israel. 4 Introduction to Reader Foreword This reader presents a selection of documents, from among the many publicly available, on the legal situation of Palestinians living under Israeli occupation. The Introduction explains the background to the uniquely obscure legal context within which Palestinians must operate in their pursuit of legal redress for harm suffered, whether in the context of armed conflict or due to administrative measures imposed by Israel in the occupied West Bank, or to conditions imposed by the blockade of Gaza, ongoing since 2007. The reports and articles focus on legal and practical obstacles to access to justice - an indispensable element of the right to reparations for civilians who suffer violations of human rights. They cover a period (2008 – 2015) in which the investigative procedures and practic- es of Israel’s military advocate general and military court system have repeatedly come under criti- cal scrutiny from national and international observers. Israel has responded by instigating a public commission of inquiry (the ‘Turkel Commission’) and several follow up reports on the implementation of that Commission’s recommendations. In the light of the recent accession of Palestine to the Rome Statute of the International Criminal Court, Israel’s willingness and ability to conduct investigations and prosecutions into alleged international crimes may become the subject of detailed examination. Included also is the report of a conference held at Birzeit University in 2013, in which legal experts proposed rethinking the situation of the Palestinians using other legal paradigms than that of oc- cupation. Among others, the law pertaining to apartheid and the right to self-determination were considered. 5 Introduction to Reader INTRODUCTION Palestinians residing in the West Bank live in a situation of prolonged occupation that is virtually unique in the world today. While Israel’s occupation of Gaza officially ended in 2005, the residents of Gaza have lived under a land and sea blockade involving Israeli control of all border crossings by peo- ple and goods since 2007. Legal options open to Palestinians living in both areas are heavily circum- scribed by the nature of the military occupation and the physical obstacles to free movement within the West Bank and between Israel and the Palestinian territories. Political relationship and borders The dissimilar histories of the two peoples who share Israel and Palestine today and the highly spe- cific circumstances in which the Jewish State of Israel emerged from the ruins of WWII are among many factors that have contributed to a profoundly asymmetrical political relationship between them. The two-State solution, envisaged at various points from 1937 on, and much-favored by the United Nations since the 1970’s, has never eventuated and the borders between Israel and the split territories nominally under Palestinian control remain disputed. The boundary line known as the ‘green line’ marked a non-permanent demarcation agreed upon following the Arab-Israeli war of 1948. In the 1967 ‘six-day war’ Israel extended its control beyond the green line (as well as into the East Jerusalem - then under Jordanian rule - the Gaza strip, the Sinai desert (Egypt) and the Golan heights (Syria)).1 Citing the temporary status of the ‘green line’ Israel disputes today that it ‘occupies’ the West Bank, or indeed that it has effectively annexed East Jerusalem: it observes that these areas were not with- in the possession of any other sovereign State immediately prior to Israel’s westward and eastward expansion, and therefore cannot be under ‘occupation’. While the UN among other international ob- servers emphatically consider Israel to be in occupation of the West Bank, the legally undetermined status of the border has allowed Israel to make many unilateral moves to exercise control of various kinds in the territory, which it justifies mostly with reference to the need to protect its citizens from hostile attack from Palestinian territories. The Israeli government refers to the occupied West Bank as the districts of Judea and Samaria. Meanwhile on the ground – literally - there is by now the incontrovertible border created by the con- crete separation wall, begun in 2000 and presently extending some 500 kms. The barrier approxi- mately follows the green line but extends at many locations well into the Palestinian side of that line. Other less visible borders within the occupied West Bank have been created by the division of the territory under the Oslo II Accord of 1995 – Annex I. Under this agreement Israeli exercises varying degrees of administrative, legal and security control over large areas of the West Bank.2 To its west, Israel has blockaded the Gaza Strip since 2007 following the election of Hamas to political leader- ship of the area. A series of wars, the most recent in August 2014, has both reflected and maintained constant high levels of tension between the two populations and repeatedly reduced large parts of Gaza to rubble.
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