Date: 4 May 2009
Palestinian and Israeli Human Rights Organisations
call for End to International Donor Complicity in Israeli Violations of
International Law
On 2 March 2009, major
international donors convened in Sharm al-Sheikh to collectively respond
to the destruction caused by Israel’s 23 day military offensive on the
Gaza Strip (the offensive). During the conference, a total of $4.5
billion was pledged in reconstruction funds for Gaza. In light of the
extensive destruction across the Gaza Strip, especially the destruction
of civilian homes and infrastructure, reconstruction is urgent.
However, as Palestinian and
Israeli human rights organisations, we must note that by agreeing to
reconstruction without specific, binding assurances from the State of
Israel, international donors are effectively underwriting Israel’s
illegal actions in the occupied Palestinian territory (oPt).
International law – including, international human rights law,
international humanitarian law (IHL), and the law of state
responsibility for wrongful acts – places specific, binding obligations
on the State of Israel (based, inter alia, on its duties as an
Occupying Power) with respect to the maintenance and development of
normal life in occupied territory. By repeatedly restricting their
action to providing aid, without holding Israel accountable for its
specific obligations, international donors are relieving Israel of its
legally binding responsibilities.
Aid must be accompanied by
strict assurances that are effectively monitored: Israel must not be
allowed to act with impunity. The State of Israel must accept
responsibility for its actions, and fulfil all of its legal obligations.
By repeatedly covering the cost of the occupation, without insisting
that Israel comply with international law, the international community
is implicitly encouraging violations of international law – including
grave breaches of the Geneva Conventions and war crimes – perpetrated by
Israeli forces in the oPt. As High Contracting Parties to the Geneva
Conventions of 1949, individual donor States may be in violation of
their legally binding obligation “to ensure respect” for the Convention
“in all circumstances.” While the international community turns a blind
eye and pays the cost of the occupation, Israel is encouraged to
continue acting outside the limits of international law.
The situation in the oPt is
one of international armed conflict and belligerent occupation. The
applicable bodies of humanitarian law include, inter alia, the
Geneva Conventions of 1949, the Hague Regulations of 1907, and customary
international law. As the Occupying Power for almost 42
years, Israel also has extensive extraterritorial human
rights obligations with respect to the protection of the residents of
the Gaza Strip, and the assurance of life in the territory. Finally, the
principles of international law regulate the actions of all States. Of
particular relevance are the International Law Commission’s Articles on
Responsibility of States for Internationally Wrongful Acts, which place
additional, pressing obligations on the State of Israel consequent to,
inter alia, the recent offensive. These bodies of law converge to
establish a comprehensive legal framework regulating the current
situation.
The Impact of International
Donors
Many of the projects funded
by international donors have subsequently been destroyed by the Israeli
military. In the Gaza Strip, such projects include the Gaza Seaport, the
Industrial Estate, and the Gaza International Airport. Following the
eruption of the second Intifada in 2000, the majority of donor
aid has been focused on emergency crisis relief aimed at combating the
immediate effects of Israel’s occupation policy, including the impact of
the Annexation Wall, restrictions on movement and the import and export
of goods, the razing of agricultural land, the destruction of
infrastructure, and the closure policy.
International aid to the
oPt – funded by the taxpayers of the international community –
constitutes a significant amount of money. In the five year period
between 1999 and 2004, the oPt received at least $5.147 billion in
international aid. At the Paris Conference in 2007, international donors
pledged $7.7 billion between 2008 and 2010 in support of the Palestinian
Reform and Development Programme. As noted, an additional $4.5 billion
was pledged at the recent Sharm el-Sheikh conference, exclusively aimed
at repairing the damage caused by Israel’s assault.
This aid is necessary to
sustain the Palestinian people, and to prevent a widespread humanitarian
emergency; given the extent of the destruction in the Gaza Strip it is
essential to ensure the basic requirements of human existence. However,
Israel’s continuing occupation is the root cause of the Palestinian’s
financial and humanitarian crisis. It impacts on the ability of
Palestinian’s to develop, to trade, and to secure their future. The
State of Israel bears legal responsibility for the consequences of its
actions. By underwriting the cost of the occupation, and in the process
effectively disregarding Israel’s international obligations, the
international community is relieving Israel of accountability and
facilitating impunity.
International Humanitarian
Law
As the Occupying Power in
the Gaza Strip, the State of Israel has specific obligations under IHL
with respect to the care and protection of the occupied Palestinian
population. This responsibility is consequent to the degree of control
exercised by Israel as the Occupying Power, and the fundamental impact
this has on the lives of the civilian population. As far as possible,
civilians must be protected from the effects of hostilities.
IHL considers the Occupying
Power to be responsible for all branches of public order and civil life.
This requirement, first codified in Article 43 of the Hague Regulations,
places a specific obligation on the Occupying Power with respect to,
inter alia, the maintenance and provision of infrastructure, health,
education, quality of life, shelter, and public works (including sewage
treatment, power and water); in other words, the material conditions
under which the population of the occupied territory live. Should the
Occupying Power destroy these essential objects, it is obliged to repair
them, in order to facilitate normal life. This is in keeping with the
status quo ante bellum requirement of occupation law, which holds
that an Occupying Power must restore an occupied territory to its
pre-war state and – should the occupation persist over a protracted
period of time – allow it to develop. Reconstruction consequent to
destruction is thus one specific obligation placed on the Occupying
Power within the broader context of its duty towards the occupied
territory. Given the reality of the current situation, it is
inappropriate that the State of Israel should directly participate in
the physical process of reconstruction. Rather, in light of its primary
responsibility, Israel must first, acknowledge its legal obligations as
regards the reconstruction process, and second, ensure the provision of
all necessary reconstruction materials and equipment.
Articles 55 and 56 of the
Fourth Geneva Convention explicitly require that the Occupying Power
should – to the fullest extent of the means available to it – ensure the
supply of food and medicines, while ensuring and maintaining the health
system. This requirement places the Occupying Power under a definite
obligation to maintain at a reasonable level the material conditions of
the occupied population. Though the phrase ‘to the fullest extent of the
means available to it’ recognises that such obligations may be difficult
to achieve, particularly in the context of ongoing hostilities, the
Occupying Power should nevertheless utilize all means at its disposal.
The requirement that the provision of material should be limited to food
and medicine is now widely regarded as too restrictive, given the
humanitarian purpose underlying the obligation. Consequently, Article 69
of Additional Protocol I additionally mentions the provision of
clothing, bedding and shelter. Given the extent of the damage to
civilian objects in the Gaza Strip, including approximately 21,000
homes, the responsibility relating to shelter is particularly pertinent:
it is essential to the maintenance of the material conditions under
which the occupied population live.
IHL holds that, in the
event of destruction arising consequent to the conduct of hostilities,
urgent action to provide shelter is required, both in the short, and
long-term. The Occupying Power is at all times responsible for supplying
the population under its control. In the current context, Israel is
clearly not taking the measures necessary to maintain the life of the
occupied territory.
International Human Rights
Law
In the contentious DRC
v. Uganda case, the International Court of Justice confirmed that an
Occupying Power is bound by its human rights obligations as regards its
actions in occupied territory. The Court found Uganda “internationally
responsible for violations of human rights law” committed in occupied
territory, and also “for failing to comply with its obligations as an
occupying Power … in respect of violations of international human rights
law and international humanitarian law in the occupied territory.” This,
and other judgments of the International Court of Justice (including
The Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory), and international human rights mechanisms –
such as the Human Rights Committee and other treaty bodies – confirm
that an Occupying Power is bound by its human rights treaty obligations
in occupied territory. With respect to Israel, such binding obligations
include the provisions of the International Covenant on Civil and
Political Rights (ICCPR), the International Covenant on Economic, Social
and Cultural Rights (ICESCR), the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD), and the
Convention on the Rights of the Child (CRC).
In, DRC v. Uganda,
the ICJ placed positive and negative obligations on Uganda as the
Occupying Power. Uganda was found responsible both for acts of
commission and omission, namely not taking measures “to ensure respect
for human rights … in the occupied territories.” The obligation to
ensure – a positive obligation – is a key feature of any human right. It
requires that States take positive steps in giving effect to human
rights obligations, including the realisation of economic, social and
cultural rights; Article 2(1) of ICESCR requires that such positive
steps are taken “to the maximum of … available resources.”
An Occupying Power is
required to progressively develop, inter alia, a territory’s
educational and health systems, road network, and power or
telecommunications infrastructure. It is evident that human rights law
places a positive obligation on Israel to safeguard the human rights of
the population under its control. Israel has extensively destroyed
homes, factories, industries, and other infrastructure within the
occupied Gaza Strip. This has evident implications for such fundamental
human rights as the right to life (Article 6, ICCPR), the right to
health (Article 12, ICESCR), and the right to adequate food, clothing,
and housing (Article 11, ICESCR). It must be noted that the right to
health includes both physical and mental well-being. In the aftermath of
the offensive, Palestinian’s mental health is of paramount importance.
Without appropriate attention it is an issue that may affect the
psychological structure and profile of Gaza’s population for decades to
come.
As a Member State of the
United Nations, and in accordance with Articles 55 and 56 of the UN
Charter, the State of Israel has pledged to promote higher standards of
living, and conditions of economic and social progress and development.
Israel is therefore under
an obligation to protect the rights of the citizens of the Gaza Strip,
and to repair the damage done.
State Responsibility for
Internationally Wrongful Acts
International law defines
an internationally wrongful act as a breach of a State’s international
obligation. The International Law Commission’s Articles on State
Responsibility for Wrongful Acts (ILC Articles) set out clear guidelines
regarding the consequences of such breaches. In the current context, the
State of Israel committed numerous internationally wrongful acts –
including war crimes and grave breaches of the Geneva Conventions – over
the course of its 23 day military offensive in the Gaza Strip. These
wrongful acts included the extensive destruction of property not
warranted by military necessity, and violations of the principle of
distinction, a key component in customary international humanitarian
law. These violations engage the responsibility of the State of Israel,
as specified in Article 1 of the ILC Articles.
Article 31 of the ILC
Articles affirm that the State of Israel “is under an obligation to make
full reparation” for any injury caused by its wrongful actions. This
injury, “includes any damage, whether material or moral” caused by the
responsible State. The Permanent Court of Justice confirmed this
responsibility in the Factory at Chorzów case – which concerned
the Polish occupation of a factory in Germany – holding that reparation
“is the indispensable complement of a failure to apply a convention”.
The responsible State must endeavour to “wipe out all the consequences
of the illegal act”. The Court further held that reparation must entail
“restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear”.
Article 35 of the ILC
Articles holds that reparation has a broad meaning, encompassing any
action that needs to be taken by the responsible State. Should
restitution in kind prove impossible, compensation is proposed as an
alternative. It is presented, however, that, given the current closure
regime imposed on the Gaza Strip, compensation is an inappropriate
response, incapable of ‘wiping out’ all the consequence’s of Israel’s
illegal acts. The Israeli military extensively destroyed, or damaged,
Gaza’s infrastructure. At least 21,000 homes were completely destroyed
or severely damaged, along with thousands of dunums of
agricultural land, and approximately 1,500 factories and workshops. The
road, water, sewage and electricity networks were heavily damaged, and
in some cases rendered unusable. It is evident that, in the absence of
reconstruction materials, and in light of the fact that restitution in
kind should be the principal form of reparation (Article 34, ILC
Articles), pure compensation is inadequate, and inappropriate.
Article 16 of the ILC
Articles also places an obligation on the individual states of the
international community not to aid or assist the commission of an
internationally wrongful act. Such aid and assistance includes, inter
alia, financing the wrongful conduct in question. Article 41
explicitly prohibits States from rendering aid or assistance used to
maintain the situation created by a serious breach of international law.
By continually covering the financial costs associated with Israel’s
illegal actions in the oPt, individual States are in breach of their own
international obligations, and complicit in the occupation’s violations
of international law.
The State of Israel must
accept responsibility for its illegal actions – as demanded by
international law – and rebuild those sections of the Gaza Strip which
it destroyed or damaged. Given the reality of the current
situation, it is inappropriate that the State of Israel should directly
participate in the physical process of reconstruction. Rather, in light
of its primary responsibility with respect to restitution in kind,
Israel must first, acknowledge its financial obligations as regards the
reconstruction process, and second, ensure the provision of all
necessary reconstruction materials and equipment.
In the interim, thousands
of families remain homeless, and the Gaza Strip’s fragile economy
continues to deteriorate.
The Continuing Isolation of
the Gaza Strip
In June 2007, in response
to the Hamas movement’s takeover of the territory, the State of Israel
imposed a drastically tightened closure regime on the Gaza Strip. The
supply of goods – including essential foodstuffs and medical provisions
– has been severely restricted, and is insufficient to meet the
fundamental needs of the population. Electricity and fuel cuts, which
affect the operation of essential services such as hospitals, and water
and sanitation works, were also imposed. The closure contributes to a
steadily worsening humanitarian crisis in the Gaza Strip. In spite of
the extensive suffering and destruction caused by the offensive, this
policy – which has now been in place for 22 months – continues to this
day.
The restrictions on goods
extend to essential reconstruction materials. Despite the extensive
destruction, thousands of homeless civilians, and a dilapidated
infrastructure (including the electricity, water, and sanitation
networks), Israel has refused to allow reconstruction materials through
the borders. As long as the borders remain closed, reconstruction and
recovery are impossible.
This situation renders
reconstruction pledges meaningless. International funds will, at best
lie idle, or at worst, be wasted, as long as Israel refuses to allow
reconstruction materials into the Gaza Strip.
Conclusion
As human rights
organisations we are calling for international donors to demand
specific, concrete assurances from the State of Israel. These
assurances, and the political will necessary to ensure their compliance,
must form an integral part of international assistance to the
Palestinian people. As the responsible party, Israel must accept the
consequences of its actions. As illustrated herein, the State of Israel
is subject to explicit legal obligations: it bears the responsibility
for reconstructing and maintaining the Gaza Strip. Bank rolling the
occupation without demanding an end to its violations of international
law, is equivalent to tacit complicity on the part of the international
community
Reconstruction aid must be
accompanied by strict conditions and assurances from the State of
Israel. Otherwise, the taxpayers of the international community will
continue to support an endless cycle of
aid-destruction-aid-reconstruction. The Palestinian people will continue
to suffer at the hands of a brutal and illegal occupation.
We further note that,
Israel’s primary responsibility notwithstanding, international
reconstruction materials must not be procured in Israel. The State of
Israel must not profit from its illegal actions, and the destruction it
has wrought.
International assistance is
most appropriate at the political level. It has become increasingly
evident that international aid alone cannot resolve the conflict. In
order to facilitate long-term development and recovery, political will
and political action are required.
All potential avenues that accord with
humanitarian and human rights law must be pursued in order to ensure the
State of Israel's compliance with international law.
We call on the taxpayers of
the international community to pressurise their governments, to lobby on
behalf of the Palestinian people, and to ensure that their money is no
longer wasted by governments willing to fund a school but not willing to
take action in response to that school’s destruction, or to ensure that
the cement necessarily for its reconstruction is permitted to enter
Gaza.
International aid is
currently being used to finance the consequences of an illegal
occupation, and the accompanying serious violations of IHL and
international human rights law.
Signed on behalf of:
Palestinian NGO Network (PNGO)
The Palestinian Centre for Human Rights (PCHR)
Al Dameer Association for Human Rights
Al Haq
Al Mezan
BADIL Resource Centre for Palestinian Residency and
Refugee Rights
Gaza Community Mental Health Program (GCMHP)
Gisha: Legal Center for Freedom of Movement
Israeli Committee Against House Demolitions (ICAHD)
ITTIJAH – Union of Arab Community Based Organisations
Physicians for Human Rights – Israel (PHR)
The Centre on Housing Rights and Evictions (COHRE)
Public Committee against Torture in Israel (PCATI)
Women’s Affairs Centre (WAC)
This document, and the
accompanying factsheet are open for further signature. Please contact
PCHR for further details, pchr@pchrgaza.org
