Tag Archives: United Nations Special Rapporteur

Gaza: 7th Year of Unlawful Blockade (UN HRC SR Press Release)

15 Jun

Gaza Blockade

Prefatory Note: I am posting a press release of yesterday, 14 June 2013, to take note of the start of the seventh year of the Israeli blockade. After the Mavi Marmara incident, 31 May 2010 and the more recent November ceasefire agreement between Israel and the Gaza government there was an undertaking to ease the blockade with respect to the flow back and forth of people and goods, but the situation remains desperate for the civilian population of Gaza that remains essentially locked into the Gaza Strip where economic destitution has reached epidemic extremes and where the water is mostly unfit for human consumption. The international community, and its main leaders, have commented adversely on the blockade, but nothing happens! It is this sense of powerlessness that is undermining the legitimacy and relevance of the United Nations to the suffering of the Palestinian people, and with particular relevance to the extreme ordeal of the civilian population of Gaza.

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Freedom Flotilla 

 

 

UN Human Rights Office of the High Commissioner

Press Release on start of 7th year of Gaza Blockade

Collective punishment in Gaza must end: Israel’s blockade enters its 7th year – UN Special Rapporteur        

GENEVA, 14 June 2013 – The United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Richard Falk, called today on Israel to end its blockade over the Gaza Strip, six years after it was tightened following the Hamas takeover in June 2007. The human suffering of the land, sea and air blockade imposed on the 1.75 million Palestinians living in one of the most densely populated and impoverished areas of the world has been devastating.

“Six years of Israel’s calculated strangulation of the Gaza Strip has stunted the economy and has kept most Gazans in a state of perpetual poverty and aid dependency,” said the UN expert. “Whether it is fishermen unable to go beyond six nautical miles from the shore, farmers unable to access their land near the Israeli fence, businessmen suffering from severe restrictions on the export of goods, students denied access to education in the West Bank, or patients in need of urgent medical attention refused access to Palestinian hospitals in the West Bank, the destructive designs of blockade have been felt by every single household in Gaza. It is especially felt by Palestinian families separated by the blockade,” he added.

Gaza children at fence

“The people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel’s collective punishment of the civilian population in Gaza must end today,” said the Special Rapporteur.

“Israel has the responsibility as the Occupying Power to protect the civilian population. But instead of allowing a healthy people and economy to flourish, Israeli authorities have sealed off the Gaza Strip. According to statistics released by the Israeli Ministry of Defense, last month’s exports out of Gaza consisted of 49 truckloads of empty boxes, three truckloads of spices, one truckload of cut flowers, and one truckload of furniture,” he said. In 2012, the total number of truckloads of exports leaving Gaza was 254, compared to 9,787 in 2005 before the tightening of the blockade.

“It does not take an economist to figure out that such a trickle of goods out of Gaza is not the basis of a viable economy,” noted the UN expert. “The easing of the blockade announced by Israel in June 2010 after its deadly assault on the flotilla of ships carrying aid to the besieged population resulted only in an increase in consumer goods entering Gaza, and has not improved living conditions for most Gazans.  Since 2007, the productive capacity of Gaza has dwindled with 80 percent of factories in Gaza now closed or operating at half capacity or less due to the loss of export markets and prohibitively high operating costs as a result of the blockade. 34 percent of Gaza’s workforce is unemployed including up to half the youth population, 44 percent of Gazans are food insecure, 80 percent of Gazans are aid recipients,” he said.

“To make matters worse, 90 percent of the water from the Gaza aquifer is unsafe for human consumption without treatment, and severe fuel and electricity shortage results in outages of up to 12 hours a day. Only a small proportion of Gazans who can afford to obtain supplies through the tunnel economy are buffered from the full blow of the blockade, but tunnels alone cannot meet the daily needs of the population in Gaza.”

“Last year, the United Nations forecast that under existing conditions, Gaza would be uninhabitable by 2020. Less optimistic forecasts presented to me were that the Gaza Strip may no longer be viable only three years from now,” said the Special Rapporteur. “It’s clear that the Israeli authorities set out six years ago to devitalize  the Gazan population and economy,” he said, referring to a study undertaken by the Israeli Ministry of Defense in early 2008 detailing the minimum number of calories Palestinians in Gaza need to consume on a daily basis to avoid malnutrition.  The myriad of restrictions imposed by Israel do not permit civilians in Gaza to develop to their full potential, and enjoy and exercise fully their human rights.

ENDS

In 2008, the UN Human Rights Council designated Richard Falk (United States of America) as the fifth Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967. The mandate was originally established in 1993 by the UN Commission on Human Rights.

Learn more, log on to: http://www2.ohchr.org/english/countries/ps/mandate/index.htm

UN Human Rights – Occupied Palestinian Territories: http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx

UN Human Rights – Israel: http://www.ohchr.org/EN/Countries/MENARegion/Pages/ILIndex.aspx

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15 Jun

Prefatory Note: What follows below is the text of the report presented on 10 June 2013 to the Human Rights Council. It offers an overview of the situation from the perspective of human rights and international humanitarian law in occupied Palestine. Both Israel and the United States boycotted the session, presumably to express their displeasure with the report and my role as Special Rapporteur. UN Watch distributed a defamatory resolution calling for my dismissal from the position, and the United States delegate, Ambassador Donahue, called for my resignation. No government formally endorsed the UNW resolution, and so it was never acted upon, while I took the occasion of the press conference to confirm my unwillingness to resign, and on the contrary, to continue to do my best to reflect as honestly as possible the realities confronting the Palestinian people from the perspective of international law. In the open debate the European Union represented criticized what was called the inappropriate failure to limit my report to ‘law and facts,’ pointing particularly to what was described as ‘the political’ in paragraph 7. In that paragraph the report offers some comments on the futility of securing the Palestinian right of self-determination by way of resuming direct negotiations; by expressing such skepticism about the diplomatic track, the EU apparently regarded the assessment as political, but to my mind it was an appropriate comment on why the prospects for protecting and realizing Palestinian fundamental rights under international law are likely to remain in total eclipse. The text below can be read in its formal context by using the link to the actual document to be found on the Human Rights Council website. *************************

United Nations

A/HRC/23/XX

General Assembly Distr.: General 27 May 2013   Original: English

Human Rights Council Twenty-third session Agenda item 7

Human rights situation in Palestine and other occupied Arab territories

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk*

Summary
     In the present report, while noting the continuing non-cooperation of Israel, the Special Rapporteur addresses Israel’s Operation “Pillar of Defense” and the general human rights situation in the Gaza Strip, as well as the expansion of Israeli settlements – and businesses that profit from Israeli settlements and the situation of Palestinians detained by Israel.

  Contents Paragraphs Page I. Introduction – 3 II. The Gaza Strip – A. Operation “Pillar of Defense” – B. Economic and social conditions C. Health in Gaza – D. Ceasefire implementation – V. Palestinian detainees in Israeli prisons and detention centres – VI. Settlements VII. Businesses that profit from Israeli settlements VIII. Recommendations
I. Introduction

  1. Once again it is necessary to highlight the failure of the Government of Israel to cooperate in the implementation of this mandate even to the extent of allowing the Special Rapporteur to enter occupied Palestine. Such entry is required to gain first-hand information about alleged human rights and international humanitarian violations by the Occupying Power, and appropriate cooperation by Member States in such official undertakings is prescribed in Articles 104 and 105(2) of the Charter. It is further specified in the 1946 Convention on the Privileges and Immunities of the United Nations, especially relevant is Article VI, Section 22, “Experts on Missions for the United Nations.” To enable mandate holders  to carry out their assignments in accordance with best practices, it would be important for the Human Rights Council to insist that Member States of the United Nations  live up to these obligations.
  2. The Special Rapporteur wishes to raise another concern regarding the independence, credibility, and effectiveness of this mandate. Ever since the Special Rapporteur assumed this position, “UN Watch” – a “pro-Israel” lobbying organization accredited as an NGO to the UN ECOSOC, has issued a series of defamatory attacks demeaning his character, repeatedly distorting his views on potentially inflammatory issues. This smear campaign has been carried out in numerous settings, including at the Human Rights Council, as well as university venues where the Special Rapporteur gives lectures in his personal capacity on subjects unrelated to the mandate. The lobby groups’ smears have been sent to diplomats and United Nations officials, including the Secretary-General, who has apparently accepted the allegations at face value, issuing public criticism of the Special Rapporteur. It is disappointing that such irresponsible and dishonest attacks have been taken seriously, with no effort to seek the views of the Special Rapporteur or otherwise verify the accuracy of the allegations. To set the record straight, the Special Rapporteur proposes that UN Watch be investigated to determine whether it qualifies as an independent organization that operates in accord with its name and stated objectives, and is not indirectly sponsored by the Government of Israel and/or other “pro-Israel” lobbying groups affiliated with the Government, as well as whether its programme of work is of direct relevance to the aims and purposes of the United Nations.[1] Even a superficial review of their website confirms their preoccupation with character assassination, and the absence of an organizational agenda that corresponds to its claim to exercise oversight over United Nations activities.[2]  It is notable that despite its efforts to discredit the Special Rapporteur, UN Watch has never offered substantive criticisms or entered into any serious discussion of the Special Rapporteur’s reports.  Such defamation of a special rapporteur is detrimental to the independence and substantive intention of any mandate. It diverts attention from the message to the messenger, and thus shifts public interest away from the need to protect human rights in contexts that have been identified by the Human Rights Council as of particular concern.  The Special Rapporteur recommends that this issue be viewed in relation not only to his mandate, but also as a matter of principle relating to ensuring a responsible role for NGOs within the United Nations system. In like manner, it seems important to encourage a greater willingness on the part of senior United Nations officials to defend special rapporteurs who are subject to such diversionary attacks, or at the least, not to be complicit.
  3. To fulfil the mandate to the extent possible under the circumstances above-mentioned, the Special Rapporteur completed a mission to the occupied Gaza Strip from 1 to 3 December 2012. The mission intended to investigate issues pertaining to the economic and social rights of civilians in Gaza, which have received considerable attention given the comprehensive Israeli blockade that has existed since mid-2007 and continues to preclude economic viability by prohibiting almost all forms of export, thereby continuing to impose unacceptable hardships on the civilian population as a whole. The mission also investigated the effects of a major military attack by Israel, code named Operation “Pillar of Defense,” which occurred from 14 to 21 November 2012.
  4. There are several general developments that have occurred since the submission of the last report to the Human Rights Council that seem relevant to the mandate. Perhaps the most significant development occurred on 29 November 2012, when the General Assembly voted to recognize Palestine as a non-member observer state, a status that is a step on the path to the realization of the collective and inalienable right of self-determination that belongs to the Palestinian people as a whole.
  5. The Special Rapporteur was invited to give the opening address at an international conference involving distinguished experts from several countries. The conference occurred on 8-9 May 2013 at Birzeit University and was devoted to the theme of “Expanding the Legal Paradigm for Palestine”. Because of the impossibility of attending the event in person, the Special Rapporteur addressed the audience via Skype. The presentation emphasized the limits of International Humanitarian Law (IHL) in the context of prolonged occupation, a concern that has been expressed in previous reports. Three overlapping legal regimes were distinguished:
    1. IHL, as contained in the Fourth Geneva Convention of 1949 and  Additional Protocol I: useful for identifying violations associated with behaviour of the Occupying Power toward the civilian population of the Occupied Territory: including construction of settlements, collective punishments, targeted assassinations, diversion of water, excessive force, conditions of detention and imprisonment. There is an additional deficiency here arising from the failure of Parties to the Geneva Conventions to uphold the duty set forth in common Article 1 “to respect and to ensure respect for the present Convention in all circumstances.” If a pattern of persistent violation is present and sustained for a period of years, as with Israel’s occupation of Palestine, then steps should be taken to encourage compliance. Such a collective responsibility by all Contracting Parties to “repress grave breaches” is made clearer in Protocol I, Articles 86 and 91, a treaty that has the status of customary international law.
    2. Oslo Framework: allocation of administrative and governmental responsibilities to Areas A (Palestinian), B (joint Palestinian-Israeli), and C (Israeli) that creates a different legal regime, especially given the different standards of protection and access to law accorded to Israeli settlers and Palestinians living within in the West Bank. The Oslo process, with its five-year timeline for the resolution of final status issues, constituted a humane acknowledgement that a belligerent occupation of a society must be ended. United Nations and European Union reports indicate that the Palestinian presence in Area C (which covers 61% of the land but only 4% of the Palestinian population), is under constant pressure, and even threat of elimination. It is estimated that 350,000 Jewish settlers in about 200 settlements and outposts are living in Area C, having appropriated the preferred land, situated mainly on high ground, making use of disproportionate amounts of water exploited from local aquifers at the expense of the Palestinian population. In other words, the Oslo formula has facilitated additional encroachments on Palestinian territory that have the appearance of permanence and violate the Fourth Geneva Convention’s obligation on the Occupier to refrain from altering the nature of the occupied country or appropriating its resources.
    3. Prolonged Occupation: there is no presently applicable international legal framework that captures the extent to which the interests and wellbeing of the civilian population are severely jeopardized, perhaps irreversibly, if the occupation lasts longer than five years. Israel’s occupation of Palestine has lasted 46 years, a period that causes serious mental disorders associated with living for decades without the protection of laws and rights and with stifling restrictions on mobility and travel. Israel’s occupation shows no signs of ending. The prolonged state of exception and the normalisation of occupation have nurtured a climate where the cumulative impact of large numbers of settlers and settlements, which the Human Rights Council’s fact-finding mission on Israeli settlements aptly described as “creeping annexation”, and the unlawful Israeli annexation and demographic manipulations in East Jerusalem have created fundamental threats to the Palestinian right of self-determination. It is the judgment of this Special Rapporteur that such issues bear directly on upholding the right of self-determination, and represent a flaw or insufficiency in the conventional conceptions of IHL and international human rights. This flaw or inadequacy should be addressed by either the International Committee of the Red Cross by convening an international conference to draft a convention for Occupations that surpass five years, or the manifold issues related to prolonged occupation be examined by a commission of inquiry composed of relevant international law experts.
  6. It has been widely accepted in commentary on the Israel/Palestine conflict that the only path to a sustainable and just peace, as well as the fulfilment of the Palestinian right of self-determination, is through direct negotiations. Strong efforts have been made in the last several months both by the concerned Governments, by the United States as the principal intermediary and by the renewing the Arab Peace Initiative of 2002, to revive negotiations. This Arab Peace Initiative has been modified to allow for ‘land swaps,’ which appears to be a means of incorporating major settlement blocs into Israel and opening the door to territorial adjustments in response to Israel’s security interests.
  7. The Special Rapporteur is sceptical of the value of direct negotiations at this time, especially in relation to the protection of the human rights of Palestinians, above all their right of self-determination. The political preconditions for effective negotiations do not seem to exist on either side: for Israel, a pro-settler Government with a seeming expansionist vision of the territorial scope of Israel and annexationist policies in the West Bank, including East Jerusalem, does not seem inclined to withdraw to 1967 lines or to address such other issues as the division of Jerusalem, the rights of Palestinian refugees, the non-diversion of water from Palestine’s aquifers, and the sovereign equality of a Palestinian state.

II. The Gaza Strip A. Operation “Pillar of Defense”

  1. The most sustained use of force since the Operation “Cast Lead” occurred when Israel launched Operation “Pillar of Defense,” on 14 November 2012 that continued for eight days. The timeline of violence leading up to the attack is complex, with no clear cause and effect relationship.[3] There were incidents of border violence and rocket fire in the days before, yet there is widespread agreement that the definitive moment occurred when the Hamas military leader, Ahmed Jabari, was assassinated in a targeted killing. It was a safe assumption that the assassination of such a high value target would occasion a strong retaliation from Gaza. This was confirmed by widely-respected Israeli peace activist Gershon Baskin, who confirmed that Jabari, at the time he was killed, was in the final stages of negotiating a long-term ceasefire with Israel.  In a New York Times article published during Pillar of Defense, Baskin points out that Israel has tried every military option to crush the capacity and will of Gaza to engage in violent resistance. In his words, “The only thing it has not tried and tested is reaching an agreement for a long-term mutual ceasefire.”[4] As Baskin points out, Jabari had long been in Israeli crosshairs and was known to have masterminded the capture and detention of the Israeli soldier Gilad Shalit.  Jabari was the leader who had kept Shalit alive and in good health while in captivity for several years, who had prevented rogue militias in Gaza from engaging in violence against Israel, and had acted to uphold prior ceasefires that had stemmed the level of violence on the Gazan border in recent years, which directly contributed to keeping Israeli casualties at zero since “Cast Lead.”
  2. Israel justified “Pillar of Defense” as a defensive response to Gaza rocket fire. The United States along with several European countries supported this claim. The U.S. Department of State expressed this sentiment when the attacks started: “We support Israel’s right to defend itself and we encourage Israel to continue to take every effort to avoid civilian casualties”.[5] Supporters of Palestine regarded Israel’s concerted use of force against urbanized and vulnerable Gaza as ‘aggression’ and ‘criminal.’ Israeli military analysts argued that the strategic purpose of Pillar of Defense was to restore deterrence in light of the deterioration of recent increases in violence emanating from Gaza and to destroy the capacity of Gaza’s military forces to launch long-range rockets able to reach the major centers of population in Israel.[6] Both sides claimed victory when the Egyptian-brokered ceasefire agreement came into effect on 21 November 2012. Clearly, both sides had made adjustments in light of the experience of Cast Lead. The Israeli side avoided a ground attack that had turned the tide of public opinion against its operation in 2009, and took some steps to avoid large civilian casualties. On the Gazan side, casualties to police and militants were greatly reduced by avoiding targeted facilities and taking secure shelter, and damage to rocket launchers was reduced by greater mobility and use of underground launching sites. The terms of the ceasefire lend support to the claim of the de-facto authorities in Gaza that Israel had given ground: agreeing not to engage in future targeted assassinations, and to meet to discuss the opening of the crossing points to goods and persons. The implementation of the ceasefire agreement is discussed later.

10. The Special Rapporteur’s mission had been conceived to obtain information about the situation in the Gaza Strip in light of the United Nations study that suggested that Gaza’s viability would be at serious risk by 2020.[7] The Special Rapporteur did not abandon that goal, but added concerns regarding Pillar of Defense, since the ceasefire had gone into effect ten days before the Special Rapporteur’s arrival. Several aspects of the attacks raised serious issues of IHL bearing on the use of excessive force in relation to a population living under conditions of occupation. Although Israel implemented its plan of ‘disengagement’ in 2005, it did not end its legal responsibilities as the Occupying Power. This conclusion reflects Israel’s control of entry and exit to Gaza from land, sea, and air; frequent violent incursions; and a blockade maintained since mid-2007. The situation in Gaza has been likened to a large open air prison in which the inmates control the interior while the guards control the perimeter. 11. The Special Rapporteur’s mission consisted of three activities: visits to targeted areas and meetings with families affected adversely by Pillar of Defense; briefings with United Nations officials and with national and international representatives of NGOs active in Gaza; and meetings with local journalists, doctors, and individuals knowledgeable about the policies, practices and discussions among the senior level of the de facto authorities. It was an intense yet illuminating means to acquire a direct appreciation of the overall human rights situation in Gaza. 12. It is difficult to summarize the meetings with family members affected by the attacks. The Special Rapporteur visited the Ismail Mohamed Abu Tabiekh Aslan neighbourhood of Gaza City, which is situated close to the border with Israel and experienced heavy artillery and missile attacks. Some residents reported that drones were used to attack. The Special Rapporteur met with adult residents, mainly men, who spoke movingly of how the attacks damaged the modest infrastructure (especially electricity and water storage) of this extremely poor neighbourhood and killed their animals, which were crucial to their meagre livelihood. They also spoke of their shared sense of vulnerability during the attacks, with no facilities available to offer protection. Strong psychological impacts were widely reported, especially affecting young children who were experiencing nightmares, bedwetting, and panic attacks. There were physical effects resulting from damage to residences in a setting where unemployment was widespread and there were insufficient resources to repair damage even if materials were available. Several interlocutors reported that they had worked in Israel until 2001, but subsequently were unemployed and became dependent on international aid. 13. The Special Rapporteur visited the destroyed residence of the Al Dalou family, which lost ten family members, including four young children during the attack. Jamel Mahmoud Yassin Al Dalou, the surviving grandfather to the four dead children, described himself as a trader in foodstuffs who lived with his family in the Nasser neighbourhood and enjoyed better living conditions than most Gazans. Mr. Al Dalou said that during the November attacks “every one of us was a target…the sky was full of Israeli planes and drones, everything that moved could be hit.” “I left to go to my business by taxi to bring needed food to the family, while there people came to me crying and told me my house had been hit, the worst news I received in my life. I rushed home to find many working to remove the rubble of the destroyed house.” Finding the deaths of his children and grandchildren, Mr. Al Dalou commented, “If they cannot deal with Islamic militants, should they attack children? We have no problem if Israelis attack militants, but this was a great injustice. I lost my family. I am sleeping on the street. Only my son and I survived. This is one of the worst crimes. Where is the international court to prosecute the perpetrators? They destroy our houses, take our land, and destroy our women and children. To whom can I complain?” This man’s voice represented the pain and grief encountered throughout the visit: “I keep asking Allah to help me be patient, to deal with this injustice and tragedy, to punish the perpetrators of these crimes, and to have their mothers and fathers suffer as I am suffering now.” This was the same essential story told by other victims and survivors of the attacks with whom the Special Rapporteur spoke.  From an IHL perspective, what seems striking is that several of the damaged structures were situated in clearly demarcated residential districts. There is a new yardstick by which to assess responsibility for military strikes on civilian targets. On the one side, the bombing and missile technology has become much more accurate, allowing for less accidental or collateral damage. At the same time, this increased accuracy creates a presumption that direct hits on civilian residences are deliberate, and thus exhibit criminal intention. In certain instances, there may have been someone living in a residential building who was acknowledged as a militant or serving in the government, but such a presence does not justify targeting an entire residential or apartment complex. In such circumstances, the collateral damage to civilians far outweighs the direct damage inflicted on legally acceptable targets. The Special Rapporteur was informed by several Gazans that rockets were neither stored nor fired from residential districts, but were stored underground and launched from open spaces. Such information was confirmed in the briefing received from the United Nations security specialist. 14. The Special Rapporteur was briefed by United Nations officials and civil society representatives who had observed and investigated compliance with human rights and international humanitarian law during Pillar of Defense.  The concerns noted above were affirmed and our attention was called to other important issues. Israel’s intentional targeting of journalists covering Pillar of Defense was highlighted as a concern that needs to be addressed by the international community, especially those who advocate for press freedoms.  The view was repeatedly expressed that Israel’s attacks constitute a part of its continuous collective punishment of Palestinians. In this respect complaints regarding Israeli impunity for such actions, including the lack of will of the international community to firmly address Israeli impunity, were frequent. One representative insisted that “justice required accountability of Israelis and upholding rights of Palestinians.” The Special Rapporteur was informed that Israeli attacks had shifted from being restricted to specific targets in the first four days of Pillar of Defense, which appeared to avoid serious civilian casualties and damage, to later attacks on civilian and agricultural targets as well as reliance on less accurate forms of weaponry, particularly shelling by naval and land artillery. It was also noted that a neglected humanitarian impact of the attacks was to create more than 60,000 internally displaced persons, who had no refuge after leaving their places of residence. It was suggested that because there does not appear to be a willingness to have an international inquiry into the violations during the attacks, it places a burden of responsibility on human rights NGOs. There was widespread agreement that the possibility of peace depended on ending the blockade and shifting commerce from the tunnels to the crossings, with Israel being blamed for its lack of clarity in relation to the definition and breadth of the ARAs. The Special Rapporteur was left with the strong impression that the ceasefire agreement, even if were to be fully implemented, was a stopgap measure, and that more fundamental changes needed to be taken to allow Gaza to focus its energies on long-term viability. 15. The Special Rapporteur met with several representatives of Gaza’s fishermen, including Nizar Ayaash, Head of the Fishermen’s Association, and  Mohammed El Asi, Head of Tawfeq Association. There are about 3,700 professional fishermen in Gaza who supply food for approximately 50,000 Gazans. The fishing industry has been hard hit by Israeli restrictions and interference with fishing operations. Fishing had been restricted to three nautical miles, which limits productive activity severely, as most edible fish live near rocks that are mostly situated between 12 and 20 nautical miles from shore. To catch fish nearer to shore requires special equipment that few of the Gaza fishing boats possess, such as drag nets to catch bottom fish. The Pillar of Defense attacks appeared to target buildings on shore belonging to the Fishermen’s Association, and did extensive damage to the structures, as well as destroyed or damaged 85 fishing vessels.  The Special Rapporteur was informed that there were high hopes that restrictions would be eased after the ceasefire, and to some extent this happened. There was a green light to fish the coastal zone up to six nautical miles, although Israeli gunboats were accused of often harassing fishing activities, firing at the boats, arresting fishermen, excluding their boats from the enlarged zone, and even shelling boats for no reason. Incidents reported included the confiscation of and arrest of those on board a boat belonging to one of the individuals at our meeting that had taken place only a couple of days earlier, coupled with attacks on fishing vessels the previous day. No reason was given for such arrests, and although these fishermen were released, it produced considerable anxiety and resentment and often fishermen are unable to recover critical and expensive equipment, such as motor engines for their boats or even the boats themselves. It is difficult for most Gazan fishermen to earn enough to sustain a minimum standard of living for his family. Many have given up fishing.  The Special Rapporteur was also told that the buildings attacked were never used to store weapons, and that this had been confirmed by both the International Committee of the Red Cross and international media. It is evident that under conditions of blockade, the difficulties of providing the population with ample, healthy food have grown and been compounded by budgetary constraints that limit UNRWA’s capability to overcome the shortfall. To allow Gazans to take full advantage of their fishing resources would seem to be a primary obligation of the Occupying Power. 16. The mission met with Palestinian women who had either been prisoners themselves or had close relatives in prison. One was the internationally known Palestinian, Hana Shalabi, who had been released from an Israeli prison in the October 2011 Shalit exchange and then re-arrested in an abusive manner at her family home. Ms. Shalabi had not been accused of a crime, but held under administrative detention, which is inconsistent with IHL requirements of prompt charges and trial in the event of detention. Upon re-arrest Ms. Shalabi started a hunger strike that put her at grave risk of death. Israeli authorities agreed to her release, but with the proviso that she would be deported to Gaza, which is away from her family and habitual place of residence. Such a deportation is clearly punitive, and is disturbingly insensitive to Ms. Shalabi’s needs for family and medical support after her experience. The Special Rapporteur recorded other accounts of prison conditions confronting Palestinians: reliance on solitary confinement, denial of family visits, punishment of hunger striking prisoners, punishment for purely political activity, inadequate medical facilities and treatment. The Special Rapporteur also heard complaints about difficulties of accessing United Nations officials to express grievances, summed up by one comment: “When you live this experience it is completely different from talking about it.”  The situation of Palestinian prisoners in discussed in detail further below. B. Economic and social conditions 17. Several meetings were held with United Nations officials and NGO representatives and experts that were relevant to an assessment of social and economic conditions. Field visits were undertaken to examine some of the difficulties with water and sewage facilities, as well as to view damage inflicted by Pillar of Defense. The mission met with the Deputy Director of UNRWA in Gaza, who imparted some key information. His general conclusions are important: (1) UNRWA is “vastly underfunded” to give needed services, especially food, to that portion of the Gazan population that is dependent on aid; (2) the character of dependence is so acute as to qualify as an of ‘emergency’; (3) the Israeli blockade is responsible for this crisis of dependency, with 10% of Gazans being aid dependent prior to the blockade in 2007, while current the percentage has risen to an astounding 70%; (4) the struggle to restore housing destroyed during Cast Lead was expected to be completed in 2013, but that goal is un-achievable given the $20 million of damage done during Pillar of Defense; (5) the water situation is desperate, with 90% of Gaza’s aquifer “unfit for human consumption,’ and Israel diverting a disproportionate share of the coastal aquifer. UNRWA indicated that resumptions of violence worsen this extremely bad economic and social situation. It was emphasized that allowing exports would “do wonders” to restore economic viability. Another concrete step would be for Israel to allow Palestinian agricultural activity nearer to the buffer zone that Israel establishes for security reasons on the Gaza side of the border. The insufficiency of electricity availability and the contaminated nature of the water supply are among the most serious challenges. It was reported that the tunnel network makes the population rely on black markets for many consumer goods, a dynamic that was declared to strengthen Hamas, which gains large revenue by taxing tunnel traffic, and to weaken the Palestinian Authority, which obtains revenue from products that enter or leave Gaza through the crossings.  To improve longer term prospects in Gaza several steps are essential: (1) lifting the blockade is necessary if the economy is to be normalized, which would still require 5-10 years of unimpeded effort; (2) financing the construction of a major desalination facility, possibly via the International Monetary Fund; (3) shifting agricultural production to less water intensive crops; (4) installing solar networks for heat and electricity; (5) improving sewage treatment to avoid further pollution of the Mediterranean Sea.

  1. 18.  The mission met with members of the WASH Cluster and received detailed briefings. There was stress on the urgent need for supporting self-sufficiency and enhanced water quality. The scarcity and supply issues were reportedly aggravated by Israel having cut Gaza off from West Bank aquifers, which appears to violate the arrangements concerning allocation of water in the Oslo II agreements. Israel is implementing an approach that treats Gaza as an entirely independent entity, while from a Palestinian perspective it would be preferable to treat the West Bank and Gaza as one, especially for water policy. Israel currently diverts 92% of aquifers for its own use, and this deprives Gaza of the most efficient way to satisfy its water needs. Given this situation, the practical option for Gaza is a major investment in desalination capabilities, although there were suspicions that Israel is seeking to sell its desalination technology to Gaza. Without desalination and water purification initiatives, the public health hazard of contaminated water is likely to prove catastrophic for Gaza. 95% of water in Gaza is unsafe for human use. It was alleged that Israel allows Gaza to invest in its own program of infrastructural improvements, and then bombs the improvements achieved.  The extent of Israel’s responsibilities as Occupying Power with respect to such matters as water and electricity, which are essential aspects of protecting the civilian population, is paramount. It was recommended that desalination and sewage facilities be regarded as improper targets in the event of Israeli attacks. It was claimed that past targeting of such facilities has discouraged foreign donors from reinvesting, and that difficulties encountered in importing spare parts posed an obstacle to maintenance works. There was an emphasis on the need for greater electricity to pump water, enabling more efficient use of Gaza’s food-producing potential. There were also reports of wasted water due to faulty treatment facilities, increased salinity in ground water, and administrative problems with foreign funding due to the split in control between formal recognition by Israel of the Palestinian Authority as still controlling Gaza and the de facto status of the authorities.
  2. 19.  Fundamental to the viability of Gaza is the question of food security, both as a present and future challenge. The Special Rapporteur was made aware of the range of problems. The Gaza Strip is 321 square miles, and the latest population estimate is 1.75 million residents, making it one of the most densely populated and impoverished territories in the world. These underlying conditions have been aggravated by Israel’s maintenance of a security buffer zone on the Gaza side of the border that deprives Palestinian farmers of 34% of available agricultural land. Periodic Israeli incursions have destroyed wells and farm animals, and have made it hazardous to work the land.  Pillar of Defense inflicted considerable damage on agricultural structures and animal shelters throughout Gaza. The Special Rapporteur was informed that agriculture seemed to have been particularly targeted. To have any hope of achieving long-term viability, the agricultural sector depends on an end to the blockade; improved access to seeds; better irrigation; secure access to the land; a reduced and demarcated buffer zone; and the renewal of exports of key products in viable quantities. Long term projections that assume continued population growth and improving living conditions, including less dependence on international donors, are uniformly pessimistic about the future of Gaza, especially if it continues to be cut off from the West Bank and the outside world.
  3. 20.  The gravity of the situation has been dramatized recently by confrontations between Gazans and UNRWA as a result of food shortfalls.[8] The UN projection of the collapse of Gaza as a viable entity for the current population by 2020 was confirmed by NGO representatives, who even suggested that such a projection was optimistic, especially in relation to water quality and availability, and that 2016 was more realistic. Present conditions are threatening to unleash a health epidemic. There are reports of widespread mental difficulties being experienced by virtually the entire juvenile population. UNRWA felt that it would be only possible to improve the overall situation in Gaza if its annual budget were increased by $200 million to $300 million, which seems unlikely at present. The NGO Action Against Hunger noted that any prospect for agricultural sufficiency and livelihood capacity will depend on Gaza reclaiming at least 50% of the coastal aquifer.

C. Health in Gaza 21. The Special Rapporteur met with health experts associated with World Health Organization, UNICEF and the Gaza Community Mental Health Programme. They presented a grim picture of the health situation in Gaza. One unexpected finding was their shared assessment that the health effects of Pillar of Defense were more severe than those that followed from Cast Lead, despite lower casualties. An increased perception of deliberately targeting neighbourhoods and agricultural settings, more fear arising from recollections of past violence, and greater sensitivity to extreme vulnerability were cited. Mental health experts mentioned the extent to which each major violent incursion in Gaza destroys whatever progress had been achieved in recent years causes a net depressive mood and reality summarized by the word often encountered in such briefings: ‘de-development’. 22. As far as medical care there were reports of an increase in referrals for treatment in Israel and Egypt (for instance, 8,000 in 2007 as compared to 16,000 in 2011) for persons suffering from cancer and cardiac conditions, as well as other diseases that could not be treated in Gaza. This increase in referrals was explained as partly caused by the deterioration of medical equipment in Gaza, the inability to import spare parts, and the failure to invest in advanced medical facilities. Despite these shortcomings, health specialists did report that there was some improvement in the overall medical situation following the Mavi Marmara incident in 2010, when it became easier to receive travel permits (95% of requests were approved, although often with harmful delays) and to import certain medical equipment. The Special Rapporteur received reports of tragic deaths caused by delays in issuance or denial of travel permits for those needing urgent treatment. Other problems identified included the unavailability of 30% of essential medicines and pharmaceutical supplies that had to be shipped from the West Bank, 192 drugs were out of stock. 23. During Pillar of Defense, public health facilities were severely strained and the population came to depend on NGO assistance, amidst reports of a high incidence of physical and mental injuries. The Gaza Community Mental Health Programme emphasized the degree to which the impact of the siege and wartime violence on the mental wellbeing of the civilian population has been both adverse and cumulative. They spoke of the high level of stress observed in most Gazans, with secondary symptoms of despair, hopelessness, and powerlessness, and somatic complaints that originate with acute stress such as high blood pressure among children. Health workers in Gaza often sense that there is a need to prepare Gazans psychologically for the next cycle of violence. Under such circumstances there occur signs of a loss of the will to live. Such pessimistic assessments were inconsistent with accounts that emphasized the high morale of the civilian population, despite the stress, as evidenced by the refusal to leave even when opportunities to do so emerge. There were suggestions that the stress and economic challenges of sustaining livelihoods seemed connected with a rise in domestic violence, post-traumatic stress, and indications that for children older than seven there were reactivated haunting memories of the horrors experienced during Cast Lead. It was stressed that medical experts are themselves survivors of trauma-inducing situations who require counselling. While people in Gaza suffering from physical ailments seek help, those with mental difficulties tend not to, being culturally inhibited from acknowledging mental problems. Even taking this into account, it was reported that there exists a 70-80% treatment gap between those who need help but do not receive it because of shortages in the health system. Added to this is the serious health concern relating to disease associated with contaminated water and inadequate nutrition that has led to widespread stunting in children. These impressions were elaborated upon in a meeting with the psychiatrist, Dr. Eyad El-Serraj, who confirmed the observations made by other health specialists and emphasized a variety of issues that were aggravating the situation, including refusals by Israeli hospitals to accept patients from Gaza who were unable to pay the exorbitant costs of treatment. He recommended creation of a private patients’ fund that could be drawn upon for medical treatment outside of Gaza. D. Ceasefire implementation 24. The ceasefire agreement[9] between the de-facto authorities in Gaza and Israel embodied an understanding that, beyond an immediate cessation of hostilities, Israel would refrain from incursions and targeted assassinations in Gaza and would also allow the movement of people and goods at the crossings.  Despite the various interpretations of this broader sense of the ceasefire understanding, with some Israelis contending that it was only an agreement to discuss, there was a general expectation, at least among Palestinians, that Israel would loosen the stranglehold it has held over the civilian population and make life more tolerable.  Both sides have largely refrained from resuming hostilities, but several developments suggest that Israel has not adhered to the spirit of the ceasefire agreement.  There are few signs of a loosening of the blockade and in recent weeks, targeted assassinations of suspected militants and incursions by the IDF into Gaza have resumed.  The excessive use of force by the Israeli security forces in the enforcement of the Access Restricted Areas (ARAs) continues with disturbing regularity.  Several setbacks over the past weeks and months are highlighted hereunder. 25. The Special Rapporteur is disturbed by excessive use of force in the enforcement of ARAs on land and at sea as well as military incursions with bulldozers into Gaza.  The Special Rapporteur is also concerned by punitive measures taken by Israel, such as rescinding the fishing zone and closing border crossings, which amount to the collective punishment of the civilian population. 26. On 22 February, the IDF reportedly fired live ammunition toward a group of Palestinians enjoying a picnic approximately 400 metres from the border fence, resulting in three Palestinians injured.  On 9 and 19 February, a total of six fishermen were arrested in separate incidents less than six nautical miles off the coast.  In both incidents, the fishermen released the same day, but their boats were confiscated.  On 18 and 21 February, a total of four fishermen were shot and injured by Israel, three nautical miles from shore.  Two were shot by rubber bullets, while the remaining two, including one minor, were injured by shrapnel from live bullets. 27. Allegedly in response to a rocket fired on 26 February by the Al-Aqsa Martyrs Brigades, which caused no casualties, Israel closed the Kerem Shalom crossing and tightened restrictions in the ARAs on land and at sea.  Israel also adopted severe measures to enforce the ARAs, including live-fire shooting without warning, leaving civilians, including farmers, seriously injured.  Four Palestinians have been killed and 106 injured by Israel in the ARA since the ceasefire.[10]  Israeli Naval Forces increased their attacks on Palestinian fishermen within six nautical miles by using rubber and live bullets, at times without advance warning, despite the ceasefire agreement which expanded the fishing zone from three to six nautical miles, resulting in injuries to fishermen.  IDF tanks and bulldozers have also made numerous incursions over the past months into Gaza to undertaken levelling and excavations. 28. On 21 March, Israel again reduced the maritime area along the coast, shrinking it three nautical miles.[11]  Fishermen aiming to fish in areas up to six nautical miles were ordered by Israel through megaphone to return to within three nautical miles.  On 23 and 24 March, Israeli naval forces opened fire toward Palestinian boats located at 1.5 nautical miles from the coast.[12] 29. The Special Rapporteur is concerned about Israel’s periodic closure of the Kerem Shalom crossing as a retaliatory measure to tighten the stranglehold of Gaza.  Kerem Shalom is the crossing point for goods and approximately 40% of the goods coming through are food and other basic supplies, including cooking gas. Its prolonged closure leads to shortages of basic items and higher prices of commodities.  After 21 March, Israel closed the Kerem Shalom crossing, bringing the movement of goods to a halt for the second time after the earlier closure from 27 February to 3 March. Restrictions were also imposed at the Erez crossing, limiting movement to humanitarian cases holding permits. The Israeli authorities re-opened Kerem Shalom crossing for a day on 28 March, after having closed it for seven successive days. Crossings at Erez and Kerem Shalom resumed again, subject to pre-21 March restrictions, on 2 April. 30. The Special Rapporteur expresses concern about the human rights and humanitarian consequences of breaches of the ceasefire agreement.  While the continued illegal blockade of Gaza by the occupying power and its failure to uphold its responsibilities to ensure the protection of civilians remain of utmost concern, the Special Rapporteur is alarmed by what appears to be the use of collective punishment upon the entire civilian population of Gaza by Israel. 31. The ceasefire agreement will continue to be tested.  Nevertheless, the Special Rapporteur is mindful that the continued blockade of Gaza, of which the restricted fishing zone is only one component, remains of primary concern to the residents of Gaza.   The Israeli stranglehold is such that Gaza’s monthly exports consist of a few truckloads of cut flowers, date bars, cherry tomatoes and spices.[13]  Israel’s blockade is stunting the potential for economic development in the Gaza Strip. III. Palestinian detainees in Israeli prisons and detention centres 32. The Special Rapporteur continues to be disturbed by reports concerning the treatment of thousands of Palestinians who are detained or imprisoned by Israel.  As of the submission of this report, the Government of Israel had in custody around 4,800 Palestinians.[14]  The Special Rapporteur deeply regrets that Israel continues to ignore problems, which he and other United Nations human rights bodies have repeatedly enumerated in official reports, related to the detention of Palestinians.[15] The results are Israeli violations on a massive scale.  While the Special Rapporteur highlights hereunder cases and issues of concern within the reporting period, the following policies and practices remain serious, on-going concerns: detention without charges and other forms of arbitrary detention, such as Israel’s abusive mis-use of administrative detention; torture and other forms of ill, inhumane and humiliating treatment; coerced confessions; solitary confinement, including of children; denial of equality of arms; denial of visits by family members and the International Committee of the Red Cross; denial of access to legal representation; unacceptable conditions in prisons and detention centres; lack of access to required health care, at times amounting to medical neglect; and denial of access to education, including for children.  These concerns are punctuated by Israel’s flagrant disregard of article 76 of the Fourth Geneva Convention. 33. Israel’s treatment of Palestinian children in detention continues to alarm.  Many of the Special Rapporteur’s concerns in this respect were raised in his report to the General Assembly in September 2011.[16]  A February 2013 UNICEF report reminds the international community that Israel’s treatment of Palestinian children routinely violates the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[17]  It concludes that “in no other country are children systematically tried by juvenile military courts that, by definition, fall short of providing the necessary guarantees to ensure respect for their rights.”  UNICEF’s report further concludes that “the ill-treatment of [Palestinian] children who come in contact with the [Israeli] military detention system appears to be widespread, systematic and institutionalized throughout the process, from the moment of arrest until the child’s prosecution and eventual conviction and sentencing.”  In a clarifying indication of the extent of the problems, UNICEF notes that its conclusions are based, among other things, on ten years of consistent allegations.  Another clarifying indication of the extent of the problems comes by way of one of UNICEF’s recommendations: “Israeli authorities should give immediate consideration to establishing an independent investigation into the reports of ill-treatment of children in the military detention system, in accordance with the 2002 recommendations made by the United Nations Special Rapporteur on the situation of human rights on [sic] Palestinian territories occupied since 1967.”  Over ten years of serious violations against Palestinian children remain to be answered for by Israel.  It is telling to contrast the treatment that Israel metes out to Palestinian children with the treatment it affords Israeli children, including settlers in Palestine.[18]  This contrast is one way of comprehending the grossly discriminatory nature of Israel’s occupation. 34. The death of Palestinian Arafat Jaradat on 23 February 2013, while in an Israeli facility, constitutes another criminal mark on Israel’s detention regime.  While no cause of death was formally recorded,[19] the Palestinian Authority’s chief medical examiner, Saber Aloul, observed the autopsy and reported clear indications of ill-treatment and torture on the body of the previously healthy 30-year-old.  In particular, Dr. Aloul reported that Mr. Jaradat’s death was caused by nervous shock resulting from severe pain, which was due to injuries inflicted through direct and extreme torture.  Dr. Aloul found that Mr. Jaradat displayed severe bruising on his upper back, deep bruising along the spine, and significant bruising on both sides of the chest. The autopsy uncovered bruising on both of his arms and inside his mouth, blood around his nose and three fractured ribs.[20]  The death of a prisoner during interrogation is always a cause for concern. Israel remains firmly committed to impunity for its officials who interrogate Palestinians.  This is evidenced by a study carried out by B’Tselem, which determined that, between 2001 and 2011, over 700 complaints of abuse by Israeli security agents interrogating Palestinians resulted in not one criminal investigation.[21]  In this context, there is a clear need for an outside, credible investigation to clarify the circumstances that led to Mr. Jaradat’s death. 35. On 2 April 2013 another Palestinian died while imprisoned by Israel.  By all accounts Maysara Abu Hamdiyeh died from cancer.  Still, the Special Rapporteur has received credible allegations regarding inadequate health care that may amount to medical neglect.  Such allegations include a four-month delay in sending Mr. Abu Hamdiyeh to a hospital, providing him with the wrong medication, and then transferring him to an eye doctor when he was suffering from throat pain and had swollen lymph and salivary glands.  The Special Rapporteur was informed that Israel had denied Ms. Abu Hamdiyeh’s sons visitation rights for eleven years, and did not release him even when it was confirmed that his cancer was terminal.  Mr. Abu Hamdiyeh died chained to a bed in a prison, without the presence of – or even any chance to say goodbye to –his family. Mr. Abu Hamdiyeh’s death in these circumstances should be considered in the context of years of reports of lack of access to health care and medical neglect suffered by Palestinians detained by Israel.[22]  According to information provided to the Special Rapporteur, there have been at least 54 cases of clear medical neglect that have resulted in the deaths of Palestinians in Israeli prisons. 36. The sense of hopelessness grinded into Palestinian prisoners by Israel has caused many to launch hunger strikes.  Especially over the past year, prisoners have undertaken hunger strikes to protest their treatment and conditions of their detention, especially at Israel’s frequent mis-use of long-term detention without charges.[23]  At the time of finalizing this report, seven Palestinians were on hunger strikes:[24]  Samer Al-Barq; Samer Al-Issawi; Younis Al-Hroub; Muhammad Ahmad An-Najjar; Zakariyah Al-Heeh; Ibrahim Al-Sheikh Khalil; and Hazem Al-Tawil.  Each was protesting against being detained indefinitely without charges.  Samer Al-Issawi had been on a hunger strike for an extraordinarily long period and was in danger of death.  According to media reports, Israel was offering to release him on the condition that he would be forcibly deported to another country.  Such a deportation would likely violate article 49 of the Fourth Geneva Convention, which prohibits the forced transfer or deportation of protected persons from occupied territories.  This was, nonetheless, the treatment given to Ayman Sharawna, who ended his nearly seven month hunger strike in mid-March in return for deportation to Gaza for 10 years. 37. It is interesting to note that Messrs. Sharawna and Al-Issawi had been released from Israeli detention on 18 October 2011, in connection with the deal between Israel and Hamas that resulted in the release of Israeli soldier Gilad Shalit.  It should be of concern to Israelis, Palestinians and international actors that the Government of Israel appears increasingly willing to break the terms of that deal.  While 1,027 Palestinian prisoners were released in exchange for one Israeli soldier, Israeli authorities have since re-arrested at least 15 of the Palestinians who were released.  Twelve remained imprisoned at the time of finishing this report.  To the Special Rapporteur’s knowledge, none of those who were imprisoned were subject to any criminal or other charges.  Similarly, Israel has demonstrated its readiness to disregard the 14 May 2012 agreement reached with representatives of Palestinian prisoners that ended the hunger strike in which at least 1,000 Palestinians participated.  According to that agreement, in return for ending the hunger strike, Israel would remove prisoners from solitary confinement; allow family visits; limit the use of administrative detention; and make efforts to improve general conditions.[25]  All reports indicate that Israel has backtracked on each element.  Yet Israel’s unacceptable disregard of these commitments is part and parcel of its prolonged occupation of Palestine.  Israel’s detention regime, in particular, seems designed to disrupt Palestinian society, producing an atmosphere of arbitrariness, instability and powerlessness.  The Special Rapporteur reminds the international community that over 750,000 Palestinians have been detained by Israel since the occupation began in June 1967 – equaling around 20 per cent of the Palestinian population. IV. Settlements 38. The Special Rapporteur continues to be concerned by Israel’s consistent and systematic expansion of settlements through subsidies, expropriations, house demolitions and demolition orders, granting permits for homes in settlements and intensifying the exploitation of Palestinian natural resources.  In the first quarter of 2013, Israel demolished 204 Palestinian homes and structures, displacing 379 Palestinians.[26] 39. The report of the Human Rights Council’s fact-finding mission to investigate the implications of the Israeli settlements reconfirmed that “the State of Israel has had full control of the settlements in the Occupied Palestinian Territory since 1967 and continues to promote and sustain them through infrastructure and security measures”.  It concluded that “The establishment of the settlements in the West Bank, including East Jerusalem, is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination”.[27]  The process of “creeping annexation” that is slowly redrawing the contours of the West Bank contrasts with Israel’s purported annexation of East Jerusalem, but both are clearly violations of the Fourth Geneva Convention. 40. A lready in July 1979, twelve years after the first illegal Israeli settlement of Kefar Ezyon was established in the West Bank, the report of the Security Council’s Commission established under resolution 446 to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, arrived at similar findings, namely that “… the pattern of that settlement policy […] is causing profound and irreversible changes of a geographical and demographic nature in those territories, including Jerusalem.”, and that “… in the implementation of its policy of settlements, Israel has resorted to methods – often coercive and sometimes more subtle – which included the control of water resources, the seizure of private properties, the destruction of houses and the banishment of persons, and has shown disregard for basic human rights, including in particular the right of the refugees to return to their homeland”.[28]  Among its recommendations, the Commission stated that “as a first step, Israel should be called upon to cease on an urgent basis the establishment, construction and planning of settlements in the occupied territories. The question of the existing settlements would then have to be resolved”. 41. Almost 34 years later, and following another international fact-finding mission, Israel continues to flout, with total impunity, international humanitarian law, including the obligation as specified in Article 49(6) of the Fourth Geneva Convention not to transfer its population into the occupied territory. Israel’s commitment to the settlement enterprise was succinctly expressed decades ago by former Prime Minister Ariel Sharon, when he stated, as Minister of Defense:“In my opinion what determines our fate for many generations to come are the Jewish settlements.  Without underestimating the importance of war and military combat in the defense of our country, I think that in establishing settlements in the Galilee, in the Negev, in the Golan Heights, in Judea and Samaria, in the Jordan Valley and in the Gaza Strip I had the privilege as the chairman of the Settlement Affairs Ministers Committee and as the Defense Minister to decide about the establishing 230 settlements all over Israel, more than 60 of which in the Galilee.  To me, the settlements are the most important thing”.[29] 42. It is telling of Israel’s policy and intentions with regard to settlements that following the General Assembly accorded Palestine the status of non-member observer state at the United Nations on 29 November 2012, Prime Minister Netanyahu authorized 3,000 new units in settlements.  Israel’s population registry indicates that the number of settlers in the West Bank, including East Jerusalem, grew by 4.5 per cent in 2012 to an estimated total of 650,000 settlers. 43. In the course of Israel’s unrelenting settlement expansion, a total of 6,676 residential units were approved in 2012, including 3,500 residential units intended for the controversial “E-1” corridor between East Jerusalem and Maale Adumim.  In its March 2013 report to the Ad Hoc Liaison Committee, the Government of Palestine explained that, “Construction in the Bab Ash-Shams/“E1” area […], would complete the Israeli wedge of settlements that stretches from occupied East Jerusalem down to the Dead Sea, thus separating the northern from the southern West Bank, and destroying all hope for a free, sovereign and viable State of Palestine”.[30] 44. In East Jerusalem, settlers continue their efforts to expand, including through forced evictions in the Old City, Silwan, Sheikh Jarrah, At-Tur, Wadi Joz, Ras al-Amud, and Jabal Al Mukabbir.  According to figures collected by the United Nations Office for the Coordination of Humanitarian Affairs, 299 Palestinians were displaced in the West Bank, including East Jerusalem this year in January and February, compared with 879 Palestinians displaced throughout 2012.[31] 45. The case of the Shamasneh family, in Sheikh Jarrah since 1964, but now subject to eviction proceedings against them by the General Custodian and Israeli Jewish landowners, is symptomatic of a wider trend. Although some Palestinian families in Sheikh Jarrah come under the provisions of the Protected Tenants Act 1972, the Shamasneh family reportedly are not eligible for protection as they did not have a written rent agreement with the Palestinian who sub-leased the property to them between 1964 and 1967.  A ruling on the case by the Israeli High Court is expected on 20 May 2013.[32] 46. In another case of forcible displacement of Palestinians, the Israeli Municipality and the Ministry of Transport are undertaking construction in Beit Safafa to complete a highway to serve the expansion of settlements in and around the southern part of East Jerusalem, and to expedite the annexation of Gush Etzion.  As usual, Palestinian residents were not consulted during the planning process and will not benefit from the highway, which will cut across the centre of Beit Safafa.  Instead, once the highway is completed, the residents of Beit Safafa will find themselves in a fragmented community with further loss of freedom of movement and access to essential services. Residents will lose the ability to use and develop property in proximity to the highway, and its value will fall, violating their collective right to develop the community.  The Special Rapporteur will closely follow the appeal by residents of Beit Safafa for an immediate stop order in the Israeli High Court scheduled on 26 June 2013.[33] 47. Settler violence continues unabated and affects Palestinians, including children living in communities located close to illegal settlements, on a daily basis.  146 cases of settler-related violence resulting in Palestinian casualties or property damage have been reported this year.[34] Incidents of settler violence range from physical assaults against Palestinians, including shooting live-firearms and stone-throwing, to vandalism against schools, mosques and private property.  Hundreds of olive trees and other agricultural assets owned by Palestinians have already been damaged this year.  Beyond the intended effect of intimidating and harming Palestinians, a worrying aspect of this violence has been the almost non-existent efforts of the IDF to protect Palestinians or to investigate settler abuses.  All too often, as repeatedly captured on video, Israeli forces arrive at the scene of violence instigated by Israeli settlers, standby as passive witnesses, or worse – respond by firing tear gas canisters and rubber-coated metal bullets at the Palestinians.  If recently proposed new legislation to give settlers broader discretion to open fire and to allow more permissive rules of engagement, introduced by Naftali Bennett, head of the Jewish Home Party and cabinet member is adopted, it will imbue settlers with a greater sense of impunity. 48. At the time of finalizing this report, Israel’s newly-formed coalition shows no sign of breaking with Israel’s policy of disregard for international law.  The Housing Minister, Uri Ariel, just before President Barack Obama’s visit to Israel and Palestine, declared on television that “building will continue in accordance with what the government’s policy has been thus far”.[35]  The Special Rapporteur believes that without Israel demonstrating good faith compliance with the Geneva Conventions with respect to settlements, the political preconditions for peace negotiations do not exist. V. Businesses that profit from Israeli settlements 49. The Special Rapporteur’s report[36] to the General Assembly in October 2012 focused attention on business enterprises that profit from Israeli settlements.  A central part of the report was the highlighting of a selection of businesses that have engaged in profit-making operations in relation to Israeli settlements. The Special Rapporteur noted his commitment to seeking clarification from these businesses and, in this respect, wishes to briefly mention the responses received from these businesses.  Additional recent developments in relation to businesses that profit from Israeli settlements are discussed thereafter. 50. Of the 13 businesses highlighted in the last report, responses were received from six: Assa Abloy; Cemex; Dexia; G4S; Motorola; and Volvo.  No reply was received from Ahava; Caterpillar; Elbit Systems; Hewlett-Packard; Mehadrin; The Riwal Holding Group; or Veolia Environment.  It is disappointing that the latter six businesses decided that it was not necessary to respond to allegations of serious human rights and international humanitarian law abuses and violations. Yet it is especially disappointing in the cases of Hewlett-Packard and Veolia Environment, as each has signed on to the United Nations Global Compact, which implies the good faith commitment to adhere to the guidelines for corporate behaviour. 51. Volvo’s response clarified that Merkavim no longer produces buses that transport prisoners from Palestine to Israel.  This is useful information.  However, Volvo repeated its argument that, while “it is regrettable and sad if our products are used for destructive purposes…we have no means to ultimately control how and where our products are used.” The Special Rapporteur notes that this line of argument has been adopted by other companies and intends to examine its adequacy against applicable international laws, standards and commitments in a future report. 52. Motorola’s response informed that “As a well-respected and responsible corporate citizen, our global activities are conducted in accordance with U.S., local, country and other applicable laws, as well as our own code of business conduct.  Our company has a comprehensive set of policies and procedures that address human rights that are designed to ensure that our operations worldwide are conducted with the highest standards of integrity.”  It is regrettable that this reply does not respond to the allegations, which were that Motorola provides surveillance and communications systems that constitute integral parts of the infrastructure of Israeli settlements and checkpoints along the wall, and that such systems facilitate the implementation of improper restrictions on Palestinians’ freedom of movement within their own territory.  It would be of particular interest to know how Motorola’s due diligence policy takes account of such allegations, when Motorola considers additional sales to the State of Israel. 53. The Special Rapporteur received somewhat positive responses from Assa Abloy, Dexia, G4S and Cemex.  Assa Abloy clarified that its Mul-T-Locks factory was moved from Barkan, Palestine, to Yavne, Israel in 2011.  The Dexia response clarified that the relevant entity is Dexia Israel Limited (formerly Otszar Hashilton Hamekomi), and that Dexia Israel Limited, as a non-retail bank, does not provide credit to private individuals. It also confirmed that Dexia Israel Limited has a role in servicing loans from the Government of Israel to settlements.  G4S confirmed its intention to exit its contracts with the customers in question and further confirmed that such contracts expire from 2012 to 2015.  G4S also provided an overview of its progress in putting its human rights policies and practices in place, which it expects to do in 2013.  Cemex confirmed that it understands that Israel is the Occupying Power in Palestine, and clarified that its plants in Mishor Adumim, Mevoh Horon and Atarot produce exclusively concrete, not other construction materials.  Cemex asserted that the Yatir quarry is not an Israeli settlement, but referred in this connection to a decision of the Israeli High Court of Justice that characterized the matter as a political rather than a legal issue.  While Cemex also referred to the Occupying Power’s duty, under article 55 of the Hague Convention (1907), to safeguard the capital of the occupied State, the Special Rapporteur recalls that the profits from the quarry go to Cemex, which holds 50 per cent ownership, and Kfar Giladi Quarries. Still, the Special Rapporteur was encouraged to be informed that Cemex, in response to his report, is “considering the possibility of executing a new internal audit on the Cemex Israel [sic] concrete plants in order to check the present compliance with the UN Global Compact Group principles.” 54. International attention is increasingly drawn to the activities of Israeli and international business enterprises involved in profit-making in occupied Palestine. The Human Rights Council’s fact-finding mission to investigate Israeli settlements denoted a range of potential violations that stem from such activities.[37]  The fact-finding mission concluded that “private entities have enabled, facilitated and profited from the construction and growth of the settlements, either directly or indirectly”.  The mission recommended that “[p]rivate companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they are not adversely impacting the human rights of the Palestinian people.  The mission further recommended that the Human Rights Council’s Working Group on Business and Human Rights be seized of the matter. 55. The case for action against businesses profiting from the Israeli occupation has been strengthened by recent reports from a wide range of actors. The report Trading Away Peace: How Europe helps sustain illegal Israeli settlements, by 22 major international human rights and humanitarian organizations, made explicit links between the settlements, businesses and Israel’s critical trade with Europe.[38] A leading Palestinian human rights organization, Al-Haq, reported on the responsibility of EU Members States for the huge settlement produce industry.[39]  Palestinian farming and civil society organizations collectively reported on the extent to which international trade with Israeli agricultural companies is destroying Palestinian agriculture.[40]  A confidential report by the EU heads of mission to Jerusalem contained recommendations to ensure that European consumers are not mis-led into purchasing settlement products that are labelled as originating from Israel.[41]  The EU report also called for EU citizens and companies to be informed of the financial and legal risks involved in purchasing property or providing services in Israeli settlements. Against this backdrop, according to media reports, the EU’s High Representative for Foreign Affairs and Security Policy, Ms Catherine Ashton, wrote to EU Ministers for Foreign Affairs calling for enhanced efforts by Member States to fully and effectively enforce EU labelling legislation vis-à-vis Israel.  It is in this context of increasing awareness that the Special Rapporteur will continue to report on businesses that profit from Israel’s prolonged occupation of Palestine. VI. Recommendations 56. The International Committee of the Red Cross or a commission of inquiry composed of relevant international law experts should convene to examine issues particular to prolonged occupation and move toward a convention to address such occupations. 57. Israel must allow Palestinians to make use of their maritime area, up to 20 nautical miles in line with its commitments under the Oslo Agreements. 58. Israel should lift its illegal blockade of Gaza and clearly demarcate ARAs.  ARAs can only be established in line with applicable international legal standards and commitments undertaken by the State of Israel. 59. The international community, with Israel’s full cooperation, should finance the construction of a major desalination facility in Gaza; install solar networks for heat and electricity; and urgently improve sewage treatment to avoid further polluting of the Mediterranean Sea. 60. The international community, with Israel’s full cooperation and in direct consultation with farmers in Gaza, should support a shift in agricultural production in Gaza to less water-intensive crops, including by facilitating improved access to seeds; should support the improvement of irrigation networks; and should ensure that farmers can utilise their farmland. 61. The international community, with Israel’s full cooperation, should create a private patients’ fund that could be drawn upon to support medical treatment outside of Gaza as needed. 62. The international community should establish a commission of enquiry into the situation of Palestinians detained or imprisoned by Israel.  This enquiry should have a broad mandate, to examine Israel’s track record of impunity for prison officials and others who interrogate Palestinians. 63. The international community should investigate the activities of businesses that profit from Israel’s settlements, and take appropriate action to end any activities in occupied Palestine and ensure appropriate reparation for affected Palestinians. 64. The Office of the High Commissioner for Human Rights, with the support of the Human Rights Council, should establish a mechanism to support Special Rapporteurs who are subject to defamatory attacks, especially those that divert attention from the substantive human rights concerns relevant to their respective mandates.  


* Late submission.
[1] For the relevant criteria against which it must be judged, see http://csonet.org/?menu=30.
[3] For a summary of the charges and counter-charges see “TIMELINE: Israel launches Pillar of Defense amid Gaza escalation,” Haaretz, 20 November 2012 http://www.haaretz.com/news/diplomacy-defense/timeline-israel-launches-operation-pillar-of-defense-amid-gaza-escalation.premium-1.479284
[4] See “Israel’s Shortsighted Assassination,” Baskin, New York Times, 16 November 2012 http://www.nytimes.com/2012/11/17/opinion/israels-shortsighted-assassination.html?_r=0%5D
[5] United States Department of State Press Release, 14 November 2012 http://www.state.gov/r/pa/prs/ps/2012/11/200551.htm
[6] See Israeli assessment of Pillar of Defense in Shlomo Brom, ed., “Introduction,” The Aftermath of Operation Pillar of Defense, Institute for National Security Studies, Memorandum 124, 2012.
[7] United Nations Country Team, occupied Palestinian territory, Gaza in 2020: A liveable place? August 2012 http://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf
[8] For a graphic account see Mohammed Omer, “Anger at UNRWA in Gaza grows” Al Jazeera, 01 May 2013 http://www.aljazeera.com/humanrights/2013/04/20134294185559594.html
[9] The following is the verbatim English text:  1. Agreement of Understanding For a Ceasefire in the Gaza Strip.  A. Israel should stop all hostilities in the Gaza Strip land, sea and air including incursions and targeting of individuals.  B. All Palestinian factions shall stop all hostilities from the Gaza Strip against Israel including rocket attacks and all attacks along the border.  C. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents’ free movements and targeting residents in border areas and procedures of implementation shall be dealt with after 24 hours from the start of the ceasefire.  D. Other matters as may be requested shall be addressed.  2. Implementation mechanisms:  A. Setting up the zero hour for the ceasefire understanding to enter into effect.  B. Egypt shall receive assurances from each party that the party commits to what was agreed upon.  C. Each party shall commit itself not to perform any acts that would breach this understanding. In case of any observations Egypt as the sponsor of this understanding shall be informed to follow up.
[10] OCHA Protection of Civilians Weekly Report, 19-25 February 2013, p.3
[11] GFO-DUO Gaza Weekly Update 18-24 March 2013
[12] OCHA Protection of Civilians Weekly Report, 19-25 February 2013
[13] State of Israel Ministry of Defense, Coordinator of Government Activities in the Territories, Gaza Crossing – Monthly report March 2013.
[15] See  the Special Rapporteur’s previous reports (A/HRC/7/17; A/66/358; A/HRC/20/32, and recent reports by the Special Committee on Israeli Practices (A/66/370 and A/67/550).
[16] See A/66/358, paras 34-40.
[18] See A/67/550 para 16.
[22] See, for recent examples, A/66/358 and A/67/550. See also Physician’s for Human Rights Israel, Oversight and Transparency in the Israeli Penal System, (July 2008), available at http://www.phr.org.il/uploaded/דוח%20שקיפות%20ובקרה.pdf.
[23] For video on administrative detention and hunger strikes, see http://therealnews.com/t2/index.php? option=com_content&task=view&id=31&Itemid=74&jumival=8123
[24] See Addammeer, Eight on Hunger Strike: Hunger Strikes are the Weapon of Prisoners in the Fight Against Administrative Detention, 10 March 2013, available at: http://www.addameer.org/etemplate.php?id=584.
[26] OCHA Protection of Civilians Weekly Report 23-29 April 2013
[27] A/HRC/22/63).
[28] Report of the Security Council Commission Established Under Resolution 446 (1979), 12 July 1979 (S/13450) http://unispal.un.org/UNISPAL.NSF/0/9785BB5EF44772DD85256436006C9C85
[30] Report of the Government of Palestine to the Ad Hoc Liaison Committee meeting in Brussels, 19 March 2013, p.13
[31] OCHA Humanitarian Monitor Monthly Report February 2013, p.18
[32] Ibid., pp.12-15
[33] Civic Coalition for Palestinian Rights in Jerusalem, Urgent Appeal for Action, 6 April 2013
[34] OCHA Protection of Civilians Report 30 April to 6 May 2013
[35] Israel Settlements Will Continue To Expand, Says New Housing Minister Uri Ariel, Reuters, posted 17 March 2013
[36] A/67/379.
[37] A/HRC/22/63.
[39] Feasting on the Occupation: Illegality of Settlement Produce and the Responsibility of EU Member States under International Law, available at http://www.alhaq.org/publications/Feasting-on-the-occupation.pdf.
[41] Copy on file with the Special Rapporteur.

Open Letter to Blog Faithful

31 Mar

To the Blog Faithful:

I have had a recurrent struggle to set boundaries on the comments section of this blog. At first, I was determined to have an open forum welcoming critical commentary on any issue, excluding only those comments that seemed struck me as clear instances of hate speech. This approach seemed to work okay except with respect to Israel/Palestine, which increasingly attracted either long argumentative comments posing a list of rhetorical questions or angry serial comment contributors that insulted me as well as others who had submitted comments that were interpreted by them as being pro-Palestinian or hostile to Israel and Zionism. There was no symmetry in the sense the blog received no serial or long provocative comments written by those who more or less supportive of the Palestinian struggle for justice. From blog readers I received mixed reactions, but I was most persuaded by those who expressed dismay about the tendency to fill the comments section with insults and counter-insults or with argumentative views that did not invite serious dialogue.

In reaction after some months, I reached the conclusion that it was preferable, on balance, to limit the comment space of my blog to likeminded views on Israel/Palestine. This meant excluding those annoying serial comments and those pro-Israeli comments that struck me as merely argumentative or dismissive of pro-Palestinian positions. In my view, this more restrictive approach did succeed in raising the quality of interaction between my posts and the authors of comments, as well as enhanced the dialogue among comment writers.

At the same time, as might have been predicted, such selective monitoring provoked angry reactions from those whose comments were being excluded.[see David Singer, “Palestine-UN Special Rapporteur Bans Free Speech,” Canada Free Press, http://canadafreepress.com/index.php/print-friendly/54172] It was claimed that I was violating canons of free speech, and that this was especially wrong, given my position as Special Rapporteur for the UN Human Rights Council. I am not persuaded by these objections. A blog is not necessarily an arena that should observe standards that are respectful free speech or necessarily exhibit openness to all sincerely held viewpoints.

The media governs access to its arenas of expression by its editorial policies, and no one insists that it has no constitutional right to do this, although a newspaper or TV channel is more of a public entity than is a personal blog. If you do not like the editorial approach of say, the Wall Street Journal or Fox TV, you can in a democracy go elsewhere, or find ways to encourage the establishment of more congenial media. Public radio and TV makes a greater effort, partly because of tax policy and funding sources, to be ‘objective,’ that is, to present opposing responsible viewpoints without taking sides. Many of us, however, feel that what CNN views as impartial and objective, seems unduly reflective of the mainstream consensus, and is unreceptive to progressive critical viewpoints, especially those associated with the anti-militarist, anti-capitalist portions of the political spectrum.

As far as my UN role is concerned, it seems irrelevant in relation to a private blog that makes no claim to be associated with my formal position, which is essentially voluntary and unpaid. I retain my right as a private citizen to express personal views on a range of public issues, including those that pertain to Israel & Palestine. My reports to the UN are based, to the best of my ability, on an objective assessment of evidence and procedures of impartial interpretation. My efforts along these lines have been obstructed from the outset by Israel’s refusal to cooperate with this undertaking to gather facts even to the minimal extent of granting me access to the Occupied Palestine Territories; in fact, I was expelled from Israel on December 14, 2008 when I tried to carry out a UN mission to examine conditions in the West Bank and East Jerusalem, and was detained for some hours in a prison located near to the Ben Gurion Airport. Israel has been able to sustain this position throughout my tenure as Special Rapporteur, despite numerous attempts to request reconsideration and Israel’s treaty obligation as a member of the UN to cooperate with its official undertakings. As in other sectors of Israel’s behavior, the realities of impunity shield its officials and government from accountability.

As before, I welcome, and have learned from, a wide range of thoughtful and gracious comments, some critical, some supportive, some inbetween. I have tried to be responsive to well intentioned criticism, learn from my mistakes, and express gratitude to all those who have used the comment section in a constructive spirit. I welcome further discussion on this theme, a continuing struggle to find the right balance for a blog with an avowedly emancipatory political agenda. I offer no apology for this posture of dedication to the pursuit of global justice.

I am most grateful to all those that have given me feedback and support, and made me feel that despite the overcrowded blogosphere, these posts of mine are not completely superfluous wilderness whimperings, and reach a community of co-believers that shares with me the vision that our lives on this planet are spiritual journeys, really pilgrimages.

You make a reasonable case against my blog policy that I have adopted reluctantly. My main disagreement with you is that I do not consider a blog to be a venue for free speech, but rather for civil discourse. I had many complaints about allowing recurrent email that took issue repeatedly and consistently with my views. This blog has nothing to do with my role as a UN Special Rapporteur, which in any event is a burdensome unpaid position that I do as conscientiously as possible. I consider the blog, a birthday gift from my daughter, to be a semi-private way of communicating with likeminded persons, not that all the comments, such as the one you refer to, are to my liking. I do not expect you to understand or accept my view on this issue, but at least I thought it worthwhile to offer this response, and it leads me to think that I should address the issue briefly in a future post.

UN Report on Human Rights Situation in Occupied Palestine, UN Doc. A/66/358

22 Oct

I am making available here my latest report to the UNGA in my role as Special Rapporteur on Occupied Palestine. Because of translation requirements within the UN the early deadline for submission of the text means that recent developments are omitted, including the issuance of the Palmer Report on the flotilla incident of 31 May 2010, the statehood bid put forward by the PLO/PA in the historic speech of Mahmoud Abbas on 23 September 2011, and the very recent prisoner exchange that freed over 1000 Palestinians and the Israeli soldier, Gilad Shalit, but has left over 5,000 Palestinians in captivity. These issues are dealt with briefly in my oral presentation to the Third Committee of the General Assembly on 20 October 2011, and I will put here an edited version of that text in a few days.

***************

United Nations

General Assembly

Sixty-sixth session

Item 69 (c) of the provisional agenda*

Promotion and protection of human rights: human rights situations and reports of special rapporteurs and representatives

A/66/358

Situation of human rights in the Palestinian territories occupied since 1967

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, submitted in accordance with Human Rights Council resolution 5/1.

* A/66/150.

11-49552 (E) 290911

*1149552*

Distr.: General 13 September 2011

Original: English

A/66/358

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967

Summary

The present report, submitted pursuant to Human Rights Council resolution 5/1, gives particular attention to the right of Palestinians to self-determination, the situation of Palestinian prisoners detained by Israel, Israeli settlements in the occupied Palestinian territories, violence by Israeli settlers against Palestinians and their properties, the especially vulnerable situation of children in the occupied Palestinian territories, and the impact of the blockade by Israel on Gaza.

Contents

I. Introduction…………………………………………………………. 3 II. Issuesofnon-implementation…………………………………………….. 3 III. Palestinianself-determination ……………………………………………. 5 IV. Protectionofthecivilianpopulationlivingunderoccupation……………………… 7 V. Detentionandimprisonment……………………………………………… 9 VI. Israelisettlements…………………………………………………….. 10 VII. Palestinian children, human rights and international humanitarian law . . . . . . . . . . . . . . . . . . . 13 VIII. Recommendations…………………………………………………….. 19

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I. Introduction

1. The Special Rapporteur has continued to be unable to obtain cooperation from Israel in the discharge of his obligations under the mandate. He continues to believe that Israel is not fulfilling its duties as a United Nations Member State in this regard. The Special Rapporteur recalls that when he made an attempt to enter Israel on 14 December 2008, in pursuance of his mandate, he was detained in a prison facility near the airport, denied entry and expelled. Because there is no regularized access to the West Bank, including East Jerusalem, except by way of Ben Gurion Airport in Tel Aviv and Israeli-controlled crossings from Jordan, there exist no means to visit these areas of the occupied Palestinian territories in the manner that was possible for his predecessors.

2. The changed circumstances in Egypt have created a prospect of access to Gaza by way of the Rafah Crossing, which Egyptian officials have indicated will be kept open for both the entry and exit of persons. In an encouraging related development, the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of Occupied Territories was able to gain entry to Gaza for the first time in its 43 years of existence.

3. On this basis, a mission under the mandate of the Special Rapporteur was planned to take place between 25 April and 3 May 2011. Unfortunately, the Special Rapporteur was forced to cancel the visit to Gaza owing to a determination by the United Nations on the prevailing security situation during the period. He plans to make another attempt to visit Gaza. Despite this inability to visit the occupied Palestinian territories during the trip, the Special Rapporteur proceeded with the mission to Egypt and Jordan, where he met with Government officials, academics, representatives of civil society organizations and United Nations agencies, human rights defenders and journalists familiar with conditions in the occupied Palestinian territories. Although the visit covered the full range of human rights issues raised by the continuing occupation by Israel, the Special Rapporteur’s particular focus was on how prolonged occupation, the blockade of Gaza and long-term refugee status encroach upon the human rights of children. Those concerns will be given special emphasis in the present report. The mission did provide valuable information that informs all sections of the report, although it remains an inadequate substitute for first-hand visits to the occupied Palestinian territories.

II. Issues of non-implementation

4. As usual, there are many more serious human rights concerns associated with the occupation by Israel than can be addressed in this report, which is subject to United Nations guidelines as to a maximum number of words. In order to avoid the impression that earlier concerns no longer persist, the Special Rapporteur stresses that there are continuing violations of international humanitarian law and human rights law arising, inter alia, from the issues discussed below.

5. The recommendations of the report of the United Nations Fact-Finding Mission on the Gaza Conflict1 (the “Goldstone Report”) have not been implemented, despite

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1 A/HRC/12/48.

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follow-up reports by the Committee of Independent Experts.2 The reports of the Committee of Independent Experts took particular note of the failure by Israel to conduct investigations of alleged war crimes in a manner that accords with international standards.

6. The findings and recommendations of the Human Rights Council-mandated fact-finding mission on the incident of the humanitarian flotilla of 31 May 2010,3 involving naval attacks by Israel in international waters, which resulted in the death of nine peace activists on the Turkish vessel Mavi Marmara, have not yet led to appropriate action.4 It is observed that the failure to follow through on initiatives recommended by competent international experts under the auspices of the United Nations contributes to a lack of accountability for serious allegations of war crimes and human rights violations. The failure is particularly unfortunate given its impact on those living for many years under a regime of belligerent occupation, which has systematically deprived them of the normal rights and remedies associated with a law-abiding society. Without committed and capable international protection, those living under prolonged occupation are exposed to excesses and abuses perpetrated by the occupier, as the realities of the occupied Palestinian territories confirm in numerous ways.

7. Concern about non-implementation was underscored by the repudiation by Israel of the near-unanimous advisory opinion of the International Court of Justice in 2004 relating to the construction of the separation Wall in the occupied Palestinian territories.5 This authoritative judicial interpretation of the international obligations of Israel, which was endorsed by the General Assembly in its resolution ES-10/15, has been repudiated by Israel without generating any result-oriented international reaction. Although advisory opinions are non-binding in a formal sense, they have important legal effects because they provide an authoritative interpretation of the issues at stake, which is based on legal reasoning by the world’s highest judicial body concerned with international law.6 The advisory opinion is particularly notable in the present instance, since the vote in the Court was 14 to 1— a rare display of consensus among judges drawn from the world’s major legal systems and cultural backgrounds. It is worth noting that even the dissenting judge was in substantial agreement with much of the legal reasoning in the advisory opinion, making the conclusions virtually unanimous. While rejecting the authority of international assessments of illegality, the Government of Israel has agreed to comply with Israeli law to the extent applicable to the construction of the Wall. Yet in practice Israel has been slow to comply with relevant Israeli judicial decisions ordering the removal and relocation of segments of the Wall. In some instances these judicial directives have been ignored for several years, imposing acute suffering on Palestinian communities that are isolated or cut off

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2 A/HRC/15/50 and A/HRC/16/24. 3 See A/HRC/15/21; see also A/HRC/16/73 and A/HRC/17/47. 4 It is noted that the panel appointed by the Secretary-General to investigate these same events

postponed the release of its report until late-August 2011. 5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, I.C.J. Reports 2004 (see also A/ES-10/273 and Corr.1). The International Court of Justice concluded in its advisory opinion that the Fourth Geneva Convention was applicable in the Palestinian territories, which before the 1967 conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel.

6 See Bekkar, “The United Nations General Assembly Requests a World Court Advisory Opinion on Israel’s Separation Barrier”, Insights, December 2003.

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from agricultural land.7 Weekly demonstrations against the Wall have continued, especially in Palestinian villages near Nablus, most prominently in the villages of Ni’lin and Bil’in. As with other issues of violations of international law by Israel, there continues to be a lack of will within the United Nations, and especially among its Member States, to challenge the existence and continuing construction of the Wall, which intrudes so negatively on the lives of many Palestinians living under occupation in the West Bank, especially East Jerusalem.

8. There are two conjoined issues present: the refusal of Israel to adhere to its obligations under international law in administering the occupied Palestinian territories, and the failure of the United Nations to take effective steps in response to such persistent, flagrant and systematic violations of the basic human rights of the Palestinians living under occupation. Yet such steps would seem to be given increased prominence in the light of the adoption of the responsibility to protect doctrine by the Security Council (resolution 1674 (2006)), and its recent application by way of Security Council resolution 1973 (2011) mandating the protection of civilians in Libya.

9. It is worth recalling the language of mutuality and rights emphasized in the Balfour Declaration of 2 November 1917, which underpins the founding of Israel, even now, almost a century after it was issued: “… it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”. This explicit acknowledgement of support in the contested declaration for the establishment of what was then called “a national home for the Jewish people” is the foundation of the claim of right relied upon in the establishment of the State of Israel, and its recognition and admission to membership by the United Nations in 1948. Although the Balfour Declaration was a colonialist overriding of the right of self-determination that was later recognized in international law, its insistence on showing respect for the reciprocal rights of the non-Jewish communities affected, particularly the Palestinians, should continue to provide political and moral guidance in the search for a peaceful and just solution to the conflict.

III. Palestinian self-determination

10. As has been stressed in prior reports, of all the human rights at stake due to the prolonged occupation by Israel of Palestinian territory, the most fundamental is the right of self-determination. This right inheres in the Palestinian people, as much as any other people in the world. However, the fulfilment of this right has been denied by Israel in the occupied Palestinian territories since 1967. Further, various developments in the course of the occupation have entailed encroachments that diminish the scope of self-determination even further than what was envisioned by the historic Palestinian acceptance of the territorial dimension of a two-State solution to the conflict, by way of the 1988 decision of the Palestine National Council, which accepted the parameters of Security Council resolutions 267 (1969) and 338 (1973). It should be appreciated that such a territorial compromise represented a major

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7 In June 2011 Israel began dismantling a section of the barrier near the West Bank village of Bil’in, in compliance with a decision of the High Court of Justice of Israel four years earlier. See Office for the Coordination of Humanitarian Affairs, “Protection of Civilians Weekly Report, 8-21 June 2011”, 24 June 2011. Available from http://unispal.un.org.

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concession by the Palestinian leadership, as it reduced to 22 per cent the approximately 45 per cent of historic Palestine apportioned by the United Nations as belonging to the Palestinians in General Assembly resolution 181 (II). This partition arrangement was rejected in 1947 by leaders of both the resident Palestinian population and the neighbouring Arab Governments at the time, because they deemed it unfair and unacceptable. Palestinian self-determination continues to be widely understood in the international community to be based on the establishment of a viable and contiguous State within the totality of the 1967 borders, subject to agreed small-scale adjustments and equivalent land swaps. This position was reaffirmed by President Obama of the United States of America in May 2011.8 Innumerable efforts, by way of direct negotiations between the parties, to transform this consensus into a solution have failed, contributing to intense disillusionment among the Palestinians and their leadership. It should be further observed that delay in finding a solution has continuously diminished Palestinian prospects for a viable State, especially because of Israeli settlement expansion, the construction of the Wall and the relating network of Israeli settler-only roads.

11. It is against this backdrop that several recent developments bearing on the intergovernmental pursuit of a peaceful and negotiated solution need to be considered, as they relate to the struggle for the protection and attainment of Palestinian rights under international law. A reconciliation or unity agreement between the Palestinian Authority and the de facto authorities in Gaza, signed at the end of April 2011, pledged the establishment of an interim Government tasked with arranging general elections at some future time throughout the Palestinian territory. This intra-Palestinian agreement has been criticized by the Governments of Israel and the United States as undermining prospects for direct negotiations because of objections to including representation of those belonging to a designated “terrorist organization”. At a meeting of the Middle East Quartet held in Washington, D.C. on 11 July 2011, there was a general call for resumed direct negotiations between Israel and the Palestinian side, but no agreement could be reached on preconditions for such negotiations.9 On several occasions, President Mahmoud Abbas has restated his position that negotiations would not be resumed without a complete stoppage of Israeli settlement expansion, including within East Jerusalem. It appears that there is no likelihood of this condition being met by the Government of Israel. On the contrary, accelerated expansions of settlements in the West Bank, including East Jerusalem, have been regularly announced during the past several months;10 and the announcement by President Abbas that the Palestinian Authority intends to approach the General Assembly with the purpose of achieving recognition of Palestinian statehood, based on the 1967 borders, and possibly also seek membership in the United Nations by way of the Security Council. Such a proposed diplomatic initiative is being presented as an alternative to direct negotiations and, for this reason, among

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8 Barack Obama, President of the United States, “Remarks by the President on the Middle East and North Africa”, White House press conference, Washington, D.C., 19 May 2011. Available from http://www.whitehouse.gov/the-press-office/2011/05/19/remarks-president-middle-east-and- north-africa.

9 See Office of the Quartet Representative, “Quartet principals meet with Tony Blair in Washington, D.C., to promote direct negotiations”, 11 July 2011. Available from http://www.tonyblairoffice.org/quartet/news-entry/quartet-meet-in-washington-dc-to-promote-direct- negotiations/.

10 See A/66/364.

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others, it is being condemned as “unilateral” and vigorously opposed by the Governments of Israel and the United States.

IV. Protection of the civilian population living under occupation

12. It is unfortunately necessary to restate the basic obligations of Israel under international humanitarian law as the occupying Power of the West Bank, including East Jerusalem, and the Gaza Strip. These obligations are mainly set forth in the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), to which Israel is party. Most pertinent is section III (arts. 47-78), which addresses issues associated with occupied territories. Of greater detail and more recent origin is the protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), which entered into force in 1978, particularly part IV, which establishes the legal framework applicable to the civilian population. There are 171 States parties to Protocol I. While Israel is not a party to Protocol I, it is bound by the provisions of the Protocol because they have become embedded in international customary law, which does not require the explicit consent of a State to be binding. Other highly relevant international legal instruments pertaining to circumstances in the occupied Palestinian territories are the Convention on the Rights of the Child, with 197 States parties (including Israel) and the International Convention on the Suppression and Punishment of the Crime of Apartheid, with 107 States parties. It is not possible to consider in detail the applicability of these various legal instruments, so only a few salient features will be described.

13. One of the overarching objectives of international humanitarian law, whether in treaty or customary form, is to ensure that the civilian population is not made to suffer unduly from a belligerent occupation — which is assumed to be a temporary condition — and that the occupying Power does not take advantage of the occupation to secure benefits for its Government and society. The legal framework has been negotiated by States, in particular experienced diplomats and military advisers, and balances security considerations against those humanitarian objectives. With those considerations in mind, it can be observed that systematic abuse of civilians as individuals or in their community identity are particularly grave assaults on the international legal regime of occupation, which makes the Israeli settlement project in the West Bank, including East Jerusalem, of continuing concern, especially when coupled with ongoing efforts by Israel and the United States to alter the 1967 borders to incorporate Israeli settlement blocs, notwithstanding their almost universally acknowledged illegality.

14. There are many other issues that illustrate the violation of the legal framework by the occupation policy of Israel. Examples include the annexation — and what even Israeli sources refer to as the “Judaization” — of East Jerusalem;11 the purported geographic expansion of the boundaries of the city of Jerusalem;12 the inability of more than 10,000 Palestinian children to be legally registered in East Jerusalem, thereby forcing Palestinian families to choose between staying together, at the risk of

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11 See, for example, Nir Hasson, “The Orthodox Jews fighting the Judaization of East Jerusalem”, Haaretz (Tel Aviv), 24 June 2010. Available from http://www.haaretz.com/weekend/magazine/the- orthodox-jews-fighting-the-judaization-of-east-jerusalem-1.298113.

12 See Security Council resolutions 252 (1968), 446 (1979) and 478 (1980).

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losing their Jerusalem residency permits, or accepting an enforced separation from their family members;13 the appropriation of increasingly scarce water resources from aquifers in Gaza for use in Israel and by Israeli settlers; the imposition and enforcement of a blockade on the entire population of Gaza for a period of more than four years, which dramatically curtails basic rights to education, housing and health; the maintenance of a dual system of law and administration in the West Bank, which privileges Israeli settlers and openly discriminates against Palestinians; and the systematic abuse of Palestinians arrested and detained by Israeli security forces, including children of a young age.14

15. As well as the patterns of violations of international humanitarian law highlighted in the preceding paragraph, it is important from a moral perspective to take into account the dimension of time on the underlying psychological and physical health of the occupied people. As noted, belligerent occupation is assumed to be short-lived and conducted so as to leave a light footprint, modelled in modern times by the occupations of Germany and Japan after the Second World War, with the restoration of sovereign rights at the earliest practicable time and, above all, the diligent protection of civilians for as long as the occupation lasts. Here, without providing an explanation for the prolonged nature of the occupation, which has increasingly taken on annexationist dimensions, the duration of more than 44 years is a cause for independent and urgent concern and action. This concern is aggravated by the absence of any near-term foreseeable end to the occupation.

16. Israel has contended that its “disengagement” from Gaza in 2005 ended occupation of the Gaza Strip, and thus Israeli responsibilities there as the occupying Power. Such a contention is generally rejected in international law circles, given continuing Israeli control over Gaza’s border, airspace and territorial waters which, along with the blockade (severely curtailing the Gaza fishing industry), has generated a persistent human rights crisis. Even without threats of cross-border violence from Israel, the ordeal of living under confined, crowded, impoverished and utterly disempowered conditions for a period of many years is incompatible with the fundamental purpose of international law to protect the dignity and well-being of an occupied civilian population. Living under siege has a proven deleterious effect on children and young people.15 Among other privations, students are prevented from exercising their right to education outside the confines and limited opportunities available in the Gaza Strip. As stressed in previous reports, international humanitarian law needs to be re-examined to take into account the particular hardships for the civilian population arising from prolonged occupations, which call for special arrangements to allow civilians to have a decent life based on education, travel, employment and social normalcy. For three generations, to varying degrees the Palestinian people have been denied these components of human dignity. It is time for

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13 Information received from the United Nations Relief and Works Agency for Palestinian Refugees in the Near East and the Office for the Coordination of Humanitarian Affairs during mission. See also Office for the Coordination of Humanitarian Affairs, Special Focus: East Jerusalem: Key Humanitarian Concerns, March 2011.

14 See, for example, Defence for Children International — Palestine Section, “In their own words: a report on the situation facing Palestinian children detained in the Israeli military court system”, February 2011. Available from http://www.dci-pal.org/English/Doc/Press/EASTJerusalem_ JANUARY2011.pdf.

15 See, for example, United Nations Children’s Fund, “UNICEF oPt monthly update, July-August 2011”. Available from http://www.unicef.org/oPt/UNICEF_MonthlyUpdate_July_and_ August2011.pdf.

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the United Nations, the International Committee of the Red Cross and key Member States to meet this challenge.

V. Detention and imprisonment

17. An issue of grave consequence from the perspective of human rights is the failure by Israel to uphold the basic rights — enumerated under international law — of persons it detains in the occupied Palestinian territories, many of whom are subsequently imprisoned in Israel. According to reports dated March 2009, there were 8,171 Palestinians being held in detention. Of these, 1,052 were held at the Ofer military base in the West Bank, south of Ramallah. The remaining 7,119 Palestinian prisoners and detainees are being held in confinement within the territory of Israel at the present time. The numbers of prisoners vary, but although the current total is slightly reduced, there are still thousands of Palestinians being held by Israel under conditions that violate international law. According to the non-governmental organization Addameer Prisoner Support and Human Rights Association, as at June 2011 Israel was holding 5,554 Palestinian political prisoners, of whom 229 were being held in administrative detention without having been convicted of any crime. Of the prisoners, 211 were children, of whom 39 were not even 16 years old.

18. The Israeli policy of transferring Palestinian prisoners to Israeli territory violates the obligations of Israel as the occupying Power. Article 76 of the Fourth Geneva Convention is unequivocal: “Protected persons accused of offenses shall be detained in the occupied country, and if convicted they shall serve their sentences therein.” That is not only a technical requirement; it also relates to the hardship experienced by someone imprisoned for a long time. Family members have almost no visitation rights, and those who are formally available are made essentially irrelevant due to the onerous permit and permission system imposed by Israel. Young Palestinian males are almost always denied access to Israel, and thus have almost no opportunity to visit their imprisoned relatives. A Palestinian prisoner often loses all contact with family members for years as a consequence.16

19. Article 74 of Protocol I, which is devoted to the special circumstances of “dispersed families”, imposes an obligation on Israel to “facilitate in every possible way the reunion of families dispersed as a result of armed conflicts”, and urges cooperation with humanitarian organizations seeking to arrange for more family connections under the difficult conditions of the occupation. Israel continues to violate this obligation.

20. There also exists the important unexplored issue of whether Palestinians who are members of armed resistance organizations should be entitled to prisoner of war status. The Geneva Convention relative to the Treatment of Prisoners of War seems applicable only if the occupied Palestinian territories can be considered to be a State, which could be one result of the conferral of statehood upon Palestine by the General Assembly, although given the extensive diplomatic recognition accorded to the

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16 For useful exposition of the separation of prisoners from their families for long periods of time, producing great suffering, see discussion by Israeli lawyer Michael Sfard, “Devil’s Island: the transfer of Palestinian detainees into prisons within Israel”, in Threat: Palestinian Political Prisoners in Israel, Abeer Barker and Anat Matar, eds. (London: Pluto Press, 2011). This book contains a valuable overview of these problems, and results from a conference held in Israel, a tribute to Israeli democratic freedoms for its own citizens.

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Palestine Liberation Organization it can be argued that Palestine already enjoys the status of statehood.17

21. Additionally, it has been contended that, under Protocol I, members of Palestinian armed resistance groups could, in principle, be entitled to POW status without having to prove that they belong to a State, so long as the struggle is being carried on by an organized group fighting alien occupation in the exercise of their right of self-determination.18 If prisoner of war status should be accorded to those detained for security reasons, and found to belong to armed resistance militias, a whole range of protections that Israel has denied would come into play for Palestinians engaged in resistance since the start of the occupation.

VI. Israeli settlements

22. As has been stated many times in prior reports, but must not be forgotten, all Israeli settlement activity is unlawful. This assessment is based on the accepted interpretation of article 49(6) of the Fourth Geneva Convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This obligation applies whether or not Palestine enjoys the status of a State. The language of the text here is far from perfect, as it lends itself to a claim by Israel that it is not deporting or transferring Israelis to the settlements, but at most facilitating voluntary decisions based on a range of religious and economic motivations. But the long-standing reality of subsidies from the Government of Israel that encourage settlers and settlements (for construction, water, electricity, schools and other purposes) makes clear the significance of State involvement. Israel continues to insist that the West Bank is “disputed” rather than “occupied” territory, and thus international humanitarian law is not de jure applicable, while Israel purported to annex East Jerusalem in 1967, and has since that time refused to treat it as “occupied”. The Government of Israel has recently sought a reaffirmation from President Obama of the United States of the April 2004 letter from then President George W. Bush to then Prime Minister Ariel Sharon conveying the expectation of the Government of the United States that the Israeli settlement blocs (“major Israeli populations centers” to the east of 1967 borders) would be incorporated into Israel, in whatever agreement resolving the conflict was negotiated in the future.19 Without exploring these issues in detail, there exists a strong international consensus, reinforced by innumerable Security Council and General Assembly resolutions as well as the 2004 International Court of Justice advisory opinion regarding the Wall, that the West Bank and East Jerusalem are “occupied”, and that international humanitarian law applies. Further, it seems clear that the letter on settlements by President Bush may have political weight, but from the perspective of Palestinian rights under international law the letter is irrelevant. The letter also violates basic

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17 John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, 2010).

18 The legal questions are usefully explored in Smadar Ben-Natan, “Are there prisoners in this war?” in Barker and Matar, Threat.

19 Letter from President Bush to Prime Minister Sharon, dated 14 April 2004. Available from http://georgewbush-whitehousearchives.gov/news/releases/2004/04/20040414-3.html. See also Ethan Bronner, “Netanyahu responds icily to Obama remarks”, New York Times, 19 May 2011. Available from http://www.nytimes.com/2011/05/20/world/middleeast/20mideast.html?_r=1.

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principles of equity in international customary law, which do not allow third parties to diminish the claims in law of parties without their participation and consent.20

23. In the context of the overall objectives of international humanitarian law to protect the rights of an occupied population, it is painfully evident that the establishment of more than 100 Israeli settlements with over 500,000 Israeli settlers, expropriating some of the best land and water resources, and moreover on the site of their proposed capital, flagrantly violates Palestinian rights and has a negative impact on Palestinian prospects for a viable, sovereign State. Yet political leaders from Europe and the United States consistently view settlement expansions by Israel as setbacks from the perspective of achieving a peaceful resolution to the underlying conflict. Foreign Secretary William Hague, of the United Kingdom of Great Britain and Northern Ireland, issued a press release on 5 April 2011 in response to an announcement by Israel of its intention to expand a major settlement in East Jerusalem, stating: “I condemn Israel’s decision to approve more than 900 settlement units in the East Jerusalem suburb of Gilo and the retrospective approval which has been given for construction in five West Bank settlements.”21 The leadership of the Palestinian Authority has repeatedly warned that without a total settlement freeze, it will not return to direct negotiations, and has explicitly linked its decision to seek recognition of Palestinian statehood at the United Nations to the Israeli policy on settlements.

24. It is also relevant to observe that strong demonstrations by Israeli civil society to protest skyrocketing housing costs inside Israel have produced new pressures on the Government of Israel to add to the supply of affordable housing, and one way to do this, it has been widely suggested in the Israeli media, is by expanding settlements.22 Whether this path will be taken by Israel is not yet evident, but the issue suggests that Israeli public opinion and some leaders view the settlements as a vital safety valve for explosive social and political pressures building up within Israel.

25. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) has noted that zoning restrictions in occupied East Jerusalem seriously undermine Palestinian development. Thirty-five per cent of the occupied Arab part of the city has been approved by Israeli authorities for Jewish Israeli settlements, while only 13 per cent of the Arab area is even potentially available for Palestinian construction.23

26. All in all, it is widely agreed that the prospects for ending the occupation of the West Bank, including East Jerusalem, are blocked by the continuing expansion of Israeli settlements. The longer this dynamic persists, the more tenuous becomes the possibility of actualizing the two-State option.

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20 It is noted that even treaties, which are a stronger form of agreement than this exchange of letters by the respective leaders of Israel and the United States, cannot affect Palestinian rights under international law. Article 34 of the Vienna Convention on the Law of Treaties clearly affirms this principle: “A treaty does not create either obligations or rights for a third State without its consent.” Even should Palestine not be a State, it is certainly a party, and has been so regarded by all concerned Governments.

21 Statement available from http://www.fco.gov.uk/en/news/latest-news/?view=News&id=579904682. 22 See, for example, Martin Sherman, “Into the fray: come to the carnival, comrade!”, Jerusalem

Post, 8 May 2011. Available from http://www.jpost.com/Opinion/Columnists/Article.aspx?id=232543. 23 Information received from UNRWA and the Office for the Coordination of Humanitarian Affairs

during mission. See also Office for the Coordination of Humanitarian Affairs, Special Focus: East Jerusalem.

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A. Settler violence

27. There has been a serious increase in settler violence in 2011. The Office for the Coordination of Humanitarian Affairs reports a more than 50 per cent increase in incidents in the West Bank involving violence against Palestinians, documenting injuries to 178 Palestinians during the first half of 2011 as compared to 176 for the entire year of 2010.24 According to UNRWA, those injured in settler violence in just the first half of 2011 included 12 children. These specific injuries resulted from stone- throwing, assaults and shootings by Israeli settlers. Yet these incidents only tell part of the story. There are almost daily accounts of settler vandalism against Palestinian agricultural land and villages, with several incidents videotaped by individuals working with B’Tselem, the highly regarded Israeli human rights organization.25 There have been numerous reports of agricultural land and olive groves being burned, especially in the villages around Nablus.26 Also part of this disturbing set of developments is a pattern of passive support for settler activities exhibited by Israeli security forces and border police. It often takes the form of shooting tear gas and stun grenades at Palestinians while doing nothing to stop settler violence and vandalism, and has also been documented by B’Tselem video cameras.27 A further dimension to these activities is the frequent settler harassment of Palestinian children on their way to school — also not prevented by Israeli forces — which has reportedly discouraged many children and their families from attending school, thereby violating their right to education. In some areas, most consistently in Hebron where settler violence is frequent and severe, international civil society organizations such as Christian Peacemaker Teams and the Ecumenical Accompaniment Programme in Palestine and Israel have attempted to step into the breach, providing direct protection of young schoolchildren when Israeli forces do not meet their obligation to prevent settler violence.28 Overall, the failure by Israel to prevent and punish settler violence remains a serious and ongoing violation of its most fundamental obligation under international humanitarian law to protect a civilian population living under occupation, and to accord particular protection to children as specified in Protocol I, article 77.

B. The future of Israeli settlements

28. There have been several explanations given for this intensifying violence and harassment of Palestinian civilians: a reaction to a bloody incident in Itamar settlement in which five Israeli settlers were killed, including three children, while asleep at night;29 an effort by the religiously motivated settlers to encourage support

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24 Information received from the Office for the Coordination of Humanitarian Affairs during mission.

25 Available from http://www.btselem.org/video/search/22. See also Muadi Nadder, ed., An Unjust Settlement: A Tale of Illegal Settlements in the West Bank (Geneva, Ecumenical Accompaniment Programme in Palestine and Israel, 2010).

26 Information received from UNRWA and the Office for the Coordination of Humanitarian Affairs during mission.

27 See, for example, http://www.btselem.org/video-channel/east-jerusalem-six-voices. 28 See Muadi Nadder, ed., An Unjust Settlement: A Tale of Illegal Settlements in the West Bank

(Geneva, Ecumenical Accompaniment Programme in Palestine and Israel, 2010). 29 See “Terror attack in Itamar: 5 family members murdered”, Jerusalem Post, 12 March 2011.

Available from http://www.jpost.com/NationalNews/Article.aspx?id=211780.

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by the Government of Israel for a policy of ethnic cleansing, especially in East Jerusalem, and their claim of biblical birthright to the entire West Bank;30 and a signal to the Government that any future anti-settler moves by Tel Aviv, such as closing settler outposts established without official permission, would be met with what settlers themselves call “price tag” reprisals against Palestinians and their properties.31 Maher Ghoneim, the Palestinian Authority Minister charged with monitoring settlement activity, declared: “This is a government of settlers and its program is one of settlement. This naturally encourages this arrogance and these attacks.”32 Israeli political leaders refer to the West Bank as “Judea and Samaria”, indirectly reinforcing the insistence by religious Israeli settlers that this territory should as a whole be incorporated into or annexed by Israel, and that it is the Palestinians who are the usurpers of the historic and religious entitlements of Jewish settlers.

29. It may be that the increased violence by Israeli settlers reflects the fact that the clash between settler and Palestinian visions of the future is reaching a climax. Nabil Abu Rudaineh, a spokesperson for the Palestinian Authority, was quoted as saying on 8 July 2011 “that all the settlements are illegitimate and must be removed”.33 Yet in this same period, settler leaders insist that not one settler will leave the West Bank regardless of what the Government of Israel agrees to do.

30. In recent months such polarizing views of future relationships have been articulated, ranging from the extremes of unconditional settlement expulsion as a component of withdrawal by Israel and the end of occupation to the complete incorporation of the West Bank into Israel proper, as a “Greater Israel” one-State alternative to the two-State proposal. Obviously, the outcome of such a debate has a direct bearing on whether the Palestinian right of self-determination will be recognized as integral to the dynamics of conflict resolution.

VII. Palestinian children, human rights and international humanitarian law

31. During the planned mission of the Special Rapporteur to Gaza that was redirected to Cairo and Amman, in a series of meetings with representatives of the Palestinian Authority, United Nations agencies with responsibilities in the occupied Palestinian territory and a range of human rights non-governmental organizations, particular attention was paid to the impact of prolonged occupation on the rights and well-being of Palestinian children. The results of these inquiries, reinforced by a variety of secondary sources, were disturbing for three principal reasons:

(a) The very fact of prolonged occupation exerts a constraining burden on civilians. Yet this impact is heavier on children, whose development is deformed by

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30 See, generally, B’Tselem, “By hook and by crook: Israeli settlement policy in the West Bank”, July 2010; and B’Tselem, “Dispossession and exploitation: Israel’s policy in the Jordan Valley and northern Dead Sea”, May 2011. Available from http://www.btselem.org/publications.

31 See, for example, YNet, “Settlers: We’re launching ‘price tag’ policy across the West Bank”, 4 December 2008. Available from http://www.ynetnews.com/articles/0,7340,L-3633599,00.html. 32 Tom Perry, “In West Bank, settler violence seen on the rise”, Reuters, 14 July 2011. Available

from http://uk.mobile.reuters.com/article/worldNews/idUKTRE76D30220110714. 33 “EU: New settlement building units are obstacle to peace”, Jerusalem Post, 19 July 2011.

Available from http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=230096.

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pervasive deprivations affecting health, education and overall security. The insecurity of Palestinian children is aggravated in the West Bank, including East Jerusalem, by settler violence and night-time raids by Israeli occupation forces, house demolitions, threatened expulsions and a host of other practices, and in Gaza by the blockade and by traumatizing periodic violent incursions and sonic booms resulting from airplane overflights, as well as the still unrepaired destruction of refugee camps, residential communities and public buildings by Israeli forces during Operation “Cast Lead”;

(b) The available evidence suggests a pattern of increasing abuse, not just by the continued hardships of occupation, but by specific policies that entail more serious and systematic violations of the rights of children guaranteed by the norms of international humanitarian law;

(c) The testimony of experts on child development agrees that children suffer more from violations than adults, and the protection of their rights should be of particular concern to the international community. Writing on the impact of home demolitions, an UNRWA report of 12 June 2011 notes: “The impact of home demolitions on children can be particularly devastating. Many children affected by demolitions show signs of post-traumatic stress disorder, depression and anxiety.”34

32. The treatment of Palestinian children is ultimately related to the quest for a solution to the conflict that brings peace to both peoples and recognizes fundamental rights. As Gandhi famously said: “If we are to teach real peace in this world … we shall have to begin with the children.” From the evidence available and what was learned on the mission, an intention to achieve a sustainable peace in the conflict would give immediate priority to respect for the rights of Palestinian children, including enabling their normal and positive development despite the constraints of occupation.

33. To illustrate patterns of deprivation, this report discusses arrest and detention procedures relating to children in the West Bank and East Jerusalem and the damaging impact on children’s health arising from unsafe water in Gaza.

A. Arrest and detention procedures for Palestinian children

34. In the Convention on the Rights of the Child, the most widely ratified of all international legal treaties, a detailed framework is set forth of the special protection that parties are legally obligated to provide for children. This encompasses children living under belligerent occupation. Article 3 (1) of the Convention expresses the general approach taken in the Convention, and hence is now embodied in international human rights law: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 38 (1) declares: “States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” Article 40 specifies the obligatory steps regarding criminal charges brought against children in keeping with the mandate of article 40 (1) that the child be “treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the

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34 UNRWA, “Demolition watch”, 12 June 2011. Available from http://reliefweb.int/sites/ reliefweb.int/files/resources/Full_Report_1154.pdf.

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child’s age and the desirability of promoting a child’s reintegration and the child’s assuming a constructive role in society”. This approach reflects the general directive of article 77 (1) of Protocol I: “Children shall be the object of special respect.” It is against this background that the pattern of deleterious treatment of Palestinian children living under occupation, as confirmed by many testimonies received during the Special Rapporteur’s mission and published reports of respected NGOs, confirms continuing violations by Israel of international law, in particular international humanitarian law.

35. Many of the arrests of Palestinian children arise out of allegations of stone- throwing aimed at settlers or Israeli security personnel in the West Bank.35 Those accused, unlike Israeli children in the West Bank, are subject to Israeli military law, which offers far fewer protections for minors than are present in Israeli criminal law. Most relevantly, in military law there is an absence of protective provisions regarding the presence of a parent during interrogation, the hours that the interrogation must be conducted or respect for the dignity of the child during the arrest process. The arrest procedures documented by United Nations agencies and reliable human rights organizations include arrests in the middle of the night without prior notification, removal of the child from parents for questioning, abusive treatment in detention and conviction procedures that appear to preclude findings of not guilty. During our mission we were frequently told that these arrest procedures seemed systematically intended to frighten and humiliate those arrested, and to turn them towards collaborating by identifying protest leaders in demonstrations and refraining from anti-occupation activities in the future.

36. In the period between 2005 and 2010, 835 children were prosecuted for stone- throwing, of which 34 were 12 or 13 years old, 255 were 14 or 15, and 546 were 16 or 17.36 Since 2007 the number prosecuted has risen each year. The length of the sentences did take into account the age of the accused, varying from more than a year for older children to a few weeks for younger ones. Israel did establish a youth military court in 2010, and so far its sentences for children in the 12 or 13 year-old category have been lighter, with the longest sentence imposed being nine days, which is far less than in earlier years. The very existence of a military court for children is inconsistent with international humanitarian law’s fundamental commitment to uphold, pursuant to article 40 (1) of the Convention on the Rights of the Child, “a child’s sense of dignity and worth”. B’Tselem has expressed its main finding on this topic as follows: “The present report indicates that the rights of minors are severely violated, that the military law almost completely fails to protect their rights, and that the few rights granted by law are not implemented.”36 Among the serious results of this way of handling Palestinian youth accused of transgressions is the denial of their educational possibilities while in custody or prison, and the disallowance of their ties with families, which go against international legal standards. This abuse also inflicts fear and suffering on parents and other family members who witness the arrest procedures and are not even informed about where their child is being held in custody.

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35 See, generally, B’Tselem, “No minor matter: violation of the rights of Palestinian minors arrested by Israel on suspicion of stone-throwing”, July 2011; and B’Tselem, “Caution: children ahead: the illegal behavior of the police towards minors in Silwan suspected of stone-throwing”, December 2010. Available from http://www.btselem.org/publications.

36 B’Tselem, “No minor matter: violation of the rights of Palestinian minors arrested by Israel on suspicion of stone-throwing”, July 2011.

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37. There is abundant anecdotal evidence of child abuse associated with interrogations and arrests of children.37 The United Nations Children’s Fund occupied Palestinian territory child protection programme contains a summary that overlaps and confirms other reputable descriptions, saying that reports of interrogations are widespread and include fingerprinting, blood tests, humiliation, using dogs to frighten the children, forcing parents into the streets on their knees, arresting boys and girls and bringing elderly women and invalids for interrogation. The same source tells of extreme instances in the village of Awarta. One three-year-old girl was reportedly taken outside her home at 3 a.m. and threatened at gunpoint. She was told she would be shot and her family home destroyed unless she reported on the whereabouts of her brother. Now, her mother explained, she can’t sleep through the night and is bedwetting. One nine-year-old girl reportedly tried to follow her father when he was arrested and she was grabbed by the neck and is still having pain and is afraid to go outside. 38

38. A report of the Association for Civil Rights in Israel details how the Israeli Youth Law is often violated in the arrest and interrogation of Palestinian children in East Jerusalem. The report is specific in its allegations:

Children have been detained for hours on end, handcuffed, they have been threatened during interrogations, screamed at, and coerced by any means into revealing information about the incidents taking place in their neighbourhood. In this context it is important to emphasize that the younger the child is, the greater the chance that he will experience trauma and psychological damage from such treatment.39

Expansion of Israeli settlements in East Jerusalem is coordinated with private security guards, who operate with even less constraint towards Palestinian children than Israeli police. This reliance on security guards is especially prevalent in the Silwan neighbourhood, where settler ambitions have collided sharply with the security of long-term Palestinian residents. According to Sahar Francis, General-Director of Addameer Prisoner Support and Human Rights Association, the arrests of children are intended to intimidate and scare youth so as to discourage “political activism more generally”,40 raising questions as to a specific denial by Israel of the affirmation by the General Assembly of a right of resistance to unlawful occupation policies.

39. It is little wonder in view of such incidents that both Médecins Sans Frontières and UNICEF have recently said that the number of children suffering from stress disorder has greatly increased.41 Colonel Desmond Travers, a member of the United Nations Fact-Finding Mission on the Gaza Conflict (whose report is generally known as the “Goldstone Report”) said in a recent interview: “If the British had behaved toward children who threw stones at them in the manner that is the norm on the West Bank for Israeli security forces — whereby children are rounded up in the evening

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37 See, for example, Defence for Children International — Palestine Section, “In their own words”. 38 Ibid., “Awarta update”, 18 April 2011. 39 Association for Civil Rights in Israel, “Violations of the ‘Youth Law (Adjudication, Punishment

Methods of Treatment) — 1971’ by the Israeli police in East Jerusalem”, March 2011. Available

from http://www.acri.org.il/en/?p=2428. 40 J. Kestler-D’Amours, “The tactic of arresting Palestinian children”, Al Jazeera, 8 July 2011. 41 See “Trauma of Palestinian children increasing, say health groups”, Electronic Intifada, 27 July

2011. Available from http://electronicintifada.net/content/trauma-palestinian-children-increasing- say-health-groups/10212.

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and taken to places of detention, hooded, beaten, and in some cases tortured — the Northern Ireland problem would not be resolved today. It would be still a place of conflagration.”42

40. In response to this pattern of abuse the above-referenced B’Tselem report recommends the following guidelines:

1. Set the age of minority in the military legislation to conform with the age of minority in Israel and the rest of the world immediately;

2. Prohibit night arrests of minors;

3. Restrict interrogations to daytime hours, with parents present, and give minors the opportunity to consult with an attorney in an orderly manner that respects the minors’ rights;

4. Prohibit the imprisonment of minors under the age of 14;

5. Promote alternatives to detention and find solutions offering alternatives to imprisonment;

6. Establish educational programmes in all prisons and offer study opportunities in all subjects to minimize the harm to the minors’ studies while they are detained and imprisoned;

7. Facilitate the issuing of permits to visit minors who are detained and imprisoned.36

B. Gaza blockade, collective punishment and Palestinian children

41. As emphasized throughout the report, children are the most vulnerable and most acute victims of Israeli violations of the provisions of international humanitarian law that are designed to protect an occupied civilian population. With the blockade of Gaza now extended beyond 4 years, and the overall occupation more than 44 years, the impact of those violations is exponentially increased. UNRWA, which normally avoids drawing conclusions as to the character of the occupation, issued a press release on 14 July 2011 expressing its heightened concern and calling attention to the plight of Gaza’s children, stating: “Today, there is a crisis in every aspect of life in Gaza. In education we need to build 100 new schools in three years for these children.”43 UNRWA spokesman Chris Gunness has noted that “the abject poor living on just over 1 dollar a day has tripled to 300,000 since the blockade was imposed and with many reconstruction projects still awaiting approval, the future looks bleak”.44 With more than half the population of Gaza under the age of 18, those facing that bleak future are overwhelmingly children. UNRWA recalls the condemnation by the International Committee of the Red Cross of the blockade as “collective punishment in clear violation of international humanitarian law” and calls on the international

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42 Philip Weiss, “Col. Travers: Israel’s treatment of Palestinian children shows that it does not seek peace”, 11 July 2011. Available from http://mondoweiss.net/2011/07/col-travers-Israels-treatment- of-palestinian-children-shows-that-it-does-not-seek-peace.html.

43 UNRWA, “A goal for Gaza: at 2011 Summer Games, 2,011 children set football world record”, 14 July 2011. Available from http://unispal.un.org/UNISPAL.NSF/0/E014A7DE55B9E6B0852578 CD0065C530.

44 UNRWA, “Gaza blockade anniversary report”, 13 June 2011. Available from http://www.unrwa.org/ etemplate.php?id=1007.

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community “to ensure that repeated appeals by States and international organizations to lift the closure are finally heeded”. It ends with this appeal: “We endorse these calls for accountability, because we need to lift the blockade and give the kids of Gaza a chance to fulfil their true potential.”43 As an aspect of the multidimensional crisis facing Gaza, UNRWA itself is experiencing a funding crisis that already is impinging on its capacity to continue even at present levels to provide for the 80 per cent of the Gazan population that is currently dependent on international assistance for subsistence, and lacks the resources to meet the additional needs of Gaza’s families, which of course encompasses the children.

42. What is said about Gaza is only a shade less true for the West Bank, including East Jerusalem, where the ordeal of prolonged occupation weighs heavily on the future prospects of children living in an atmosphere of fear and intimidation from birth onwards. Recent developments in Area C, which is 60 per cent of the West Bank, are in their own way as severe in their deprivation of rights as the situation in Gaza, especially in relation to the displacement and dispossession of Bedouin villages that have created a general atmosphere of fear and foreboding, especially among Bedouin children.45 According to UNRWA field staff with whom the Special Rapporteur met during the mission, the 155 herding communities left in Area C, which is fully controlled by Israel, include many Bedouin refugees now facing forcible displacement. Those communities, including many children now largely without regular access to schools, have dramatically deteriorated since 2000, with half the population having been forced out of the West Bank grazing areas, losing their herds and involuntarily ending up in small towns and villages. Part of this forced displacement and forced urbanization has been the result of an Israeli policy of systematic demolition of the traditional cistern-based water infrastructure essential for maintaining the Bedouin people’s nomadic and agricultural way of life, which the occupying Power contends is unlicensed, and thus subject to removal. Bedouin children, most of whose families have already been made refugees in the past, face the particularly difficult challenge of losing their homes and entire way of life as a result of this forced abandonment of their herding traditions, as well as being denied the protection of citizenship associated with upholding the dignity and rights of individuals.

C. Palestinian children’s health and polluted water in Gaza

43. Children are particularly vulnerable to the unsafe water conditions that exist in Gaza. It is estimated that 54 per cent of Gaza’s 1.6 million civilians are children under the age of 18, with 20 per cent of the total under 5 years of age. Within this youngest age group, nearly 300,000 children are at acute risk; this age group is most vulnerable to the effects of water-associated disease, accounting for 90 per cent of annual deaths due to diarrhoeal diseases, including cholera.46 Studies demonstrate that it is Gaza’s unsafe waters that account mainly for the differences in health and survival (child mortality) between children in Gaza and those in the West Bank. The study mentioned above clarifies this conclusion: Gaza’s sole water source is an

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45 See Harriet Sherwood, “Bedouin children hope their West Bank school will be spared Israel’s bulldozers”, Guardian, 12 June 2011.

46 See UNICEF, “Protecting children from unsafe water in Gaza: strategy, action plan and project resources”, March 2011. Available from http://www.unicef.org/oPt/FINAL_Summary_Protecting_ Children_from_unsafe_Water_in_Gaza_4_March_2011.pdf.

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aquifer that is chemically contaminated with dangerous levels of chlorides, nitrates and other pollutants, some in excess of World Health Organization guidelines. Water scarcity aggravates the problem. Almost two thirds of Gazans surveyed indicated that their water is of bad quality due to its high salinity and water pollution, which is especially caused by wastewater contamination. The World Bank and Coastal Municipal Water Utility in Gaza stated that “only 5 to 10% of the aquifer is suitable for human consumption and … this supply could run out over the next five to 10 years without improved controls”.46

44. What is at stake with respect to water quality in Gaza is the right of the child to life and health. Exacerbating the crisis is the continuing impact of the unlawful blockade by Israel, which prevents the importation of tools and materials necessary to repair and restore the water purification system partially destroyed during Operation “Cast Lead”.

VIII. Recommendations

45. In the light of the above, the Special Rapporteur recommends that the Government of Israel take the following measures:

(a) Immediately adopt in policy and practice the guidelines of B’Tselem for the protection of Palestinian children living under occupation who are arrested or detained as a minimum basis for compliance with international humanitarian law and human rights standards under international law;

(b) Allow on an urgent basis entry to Gaza of materials needed for repair of water and electricity infrastructure so as to avoid further deterioration in the health of the civilian population, especially children, which is currently in critical condition;

(c) Develop and implement appropriate detention and imprisonment policies and practices for Palestinians, including fully observing the prohibition on transferring prisoners from occupied Palestinian territory to Israeli territory;

(d) Immediately lift the unlawful blockade of Gaza in view of its violative impact on all aspects of civilian life, its undermining of the basic rights of an occupied population and its grave impact on children.

46. The Special Rapporteur recommends that the General Assembly request that the International Court of Justice issue an advisory opinion on the legal status of prolonged occupation, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and the imposition of a dual and discriminatory administrative and legal system in the West Bank, including East Jerusalem.

A/66/358