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Statement to the United Nations General Assembly, High-Level Meeting on the Rule of Law Prolonged Occupation, and Self- Determin

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Statement to the United Nations General Assembly, High-Level Meeting on the Rule of Law Prolonged Occupation, and Self- Determin SSTATEEMENNT TTO THEE UUNIITEED NAATTIOONS GGENNERAALL ASSSEMMBBLYY, HHIIGHH--LLEVVELL MMEEETINNG OON THEE RRULLE OF LAAWW PPRROLONGGED OOCCUPPAATIION,, ANND SSEELFF-- DDETEERMMIINAATTIOONN: TTHE CCASE OOFF THHE PPAALLESSTTINNIAANN PEOPLEE UUNDDER IISRAAELLI RRULLE SSEPTEEMBEER 200112 This project is funded by the United Nations Development Programme The Israeli Committee Against House Demolitions | P.O.B 2030 Jerusalem 91020 Israel Tel. +972-2-6245560 | Fax. +972-2-6221530 | www.icahd.org | [email protected]| 1 The Israeli Committee Against House Demolitions (ICAHD) is a human rights and peace organization established in 1997 to end Israel’s Occupation over the Palestinians. ICAHD takes as its main focus, as its vehicle for resistance, Israel’s policy of demolishing Palestinian homes in the Occupied Palestinian Territory and within Israel proper. ICAHD was awarded ECOSOC Special Consultative Status in 2010. Published by the Israeli Committee Against House Demolitions (ICAHD) PO Box 2030 Jerusalem 91020 Israel +972 2 624-5560 [email protected] | www.icahd.org The contents of this publication are the sole responsibility of the Israeli Committee Against House Demolitions and can in no way be taken to reflect the views of the United Nations Development Programme. Author: Itay Epshtain , LL.M. The Israeli Committee Against House Demolitions | P.O.B 2030 Jerusalem 91020 Israel Tel. +972-2-6245560 | Fax. +972-2-6221530 | www.icahd.org | [email protected]| 2 I. Executive Summary 1. ICAHD submits the following information for consideration on the occasion of the United Nations (UN) General Assembly High-Level Meeting on the Rule of Law. This submission focuses on Israel’s protracted failure to comply with fundamental principles of rule of law and human rights obligations in relation to its occupation of the Palestinian territory, repercussions of the Israeli occupation for the Palestinian people, and Israel’s responsibility to respect, protect and fulfil Palestinians human rights, in accordance with international law and standards. 2. In her statement to the meeting, UN High Commissioner for Human Rights Navi Pillay has urged all States to “fulfill their obligations to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law.” 3. In stark contrast, for as long as they have been subjugated by Israeli occupation, Palestinians have been denied such fundamental rights and freedoms, while Israel has negated its inherent responsibility to respect, protect and fulfill the rights of all those under its effective control. We therefore must remain cognizant of the Charter of the United Nations (the Charter) Article 6, stipulating that “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.” 4. Short of expulsion from membership and for the restoration of the rule of law, the very nature and legality of occupation, as well as the legal principles that outline a political compact, must be addressed. Primary considerations include: fulfillment of human rights enshrined in international law; a just solution to the Israeli/Palestinian conflict that has confounded the region and the world for decades; and the realization of Palestinian’s inalienable right to national self-determination. 5. ICAHD encourages the United Nations General Assembly to adopt a Resolution calling for an International Court of Justice Advisory Opinion that establishes a new normative paradigm of prolonged occupation; reinforces the inalienable human rights of the Palestinian people to development and self-determination; and depicts the scope and magnitude of Israel’s illegal policies and practices in the OPT, beyond what are IHL breaches and referred to in the 2004 Advisory Opinion; and upholds the legal obligations of all states and international organizations to cooperate to end Israel’s breaches, and prolonged occupation. The Israeli Committee Against House Demolitions | P.O.B 2030 Jerusalem 91020 Israel Tel. +972-2-6245560 | Fax. +972-2-6221530 | www.icahd.org | [email protected]| 3 II. Applicable Legal Order 6. At the outset we note that the normative framework applicable to occupation, in particular the Hague Regulations and the Fourth Geneva Convention were envisaged to regulate short-term occupation, although nothing under international humanitarian law (IHL) would prevent the Occupying Power from embarking on long- term occupation, such as Israel has imposed over the last 45 years. However, IHL scholars, including the International Committee of the Red Cross (ICRC) 2012 expert meeting on occupation and other forms of administration of foreign territory, assert that prolonged occupation raises legal issues requiring reinterpretation and adjustment, as we set forth in the following statement. 7. As the Occupying Power, Israel is bound by the provisions of IHL, namely the Hague Regulations of 1907, and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949, both of which constitute binding customary international law. Israel’s claim that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territory (OPT) has been consistently rejected by the international community, including the UN Security Council and the International Court of Justice. 8. Nevertheless, in July 2012, the Edmond Levy Committee appointed by the Israeli government to explore the legalization of settlement outposts, published its findings in converse. Retired Israeli Supreme Court Judge Edmond Levy and other Committee members (retired District Court Judge Techia Shapiro, and Adv. Alan Baker) upheld the legal doctrine of the Missing Reversioner, claiming that the provisions of the Fourth Geneva Convention do not apply in the case of Israeli occupation of Palestinian land and people. According to the Committee, the Geneva Conventions apply only to the sovereign territory of a High Contracting Party, and therefore do not apply, since neither Jordan nor Egypt exercised sovereignty over the region in question. Whereas the Committee’s recommendations have no legally binding effect, they signal a precarious slide toward the absorption of the occupied territory into the recognized sovereign territory of Israel, while disenfranchising its Palestinian inhabitants. 9. Notably, the aforementioned Missing Reversioner doctrine was authoritatively negated by the International Court of Justice (ICJ) Advisory Opinion on the Wall (2004): “Under customary international law, the Court observes, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories have done nothing to alter this situation. The Court concludes that all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of Occupying Power.” The Israeli Committee Against House Demolitions | P.O.B 2030 Jerusalem 91020 Israel Tel. +972-2-6245560 | Fax. +972-2-6221530 | www.icahd.org | [email protected]| 4 10. It has long been established that Israel’s practices in the OPT violate not only the provisions of IHL (outlined in detail below), but further violate Palestinians’ economic, social, cultural, civil, and political rights enshrined in several bodies of international human rights law (IHRL). Specifically, these include human rights contained, inter alia , in the Universal Declaration of Human Rights of 1948; the International Covenant on Economic, Social and Cultural Rights of 1966; the International Covenant on Civil and Political Rights of 1966; the International Convention on the Elimination of All Forms of Racial Discrimination of 1969; and the Convention on the Rights of the Child of 1990. 11. From the genesis of Israeli occupation of Palestinian Territory some 45 years ago, UN Bodies have consistently rejected both the Israeli assertion that IHRL does not apply extraterritorially in the OPT, and Israel’s claim that it can legitimately differentiate between Israelis and Palestinians in the OPT on the basis of citizenship. 12. ICAHD maintains that IHRL is applicable to all territory over which a state exercises effective control, including occupied territory, as expressed by numerous UN Treaty Bodies and, most notably, the ICJ Advisory Opinion on the Wall (2004): “The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions.” 13. Likewise, the Human Rights Committee (HRC) General Comment no. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), Article 10, stipulates that: “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the
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