Print

Three Years of Israeli Violations of International
Humanitarian Law in the Occupied Palestinian Territories
: The Need for
Accountability

Memorandum to the High Contracting Parties to
the Fourth Geneva Convention
 submitted by the Palestinian Centre for Human
Rights, September 2003

Introduction

As the Al-Aqsa Intifada
enters its fourth year, the cycle of violence which began on 29 September 2000
has escalated to levels unprecedented since 1967.  Israeli military
attacks in the Occupied Palestinian Territories (OPTs), particularly during the
large-scale and prolonged Israeli military incursions into
Palestinian-controlled areas conducted in 2002, have been characterized by
systematic violations of international human rights and humanitarian law,
including war crimes; excessive and indiscriminate use of force; wilful
killings and injuries; restrictions on freedom of movement of people and goods,
including prolonged closures and curfews; demolition of civilian property,
including infrastructure, educational and health facilities; appropriation of
lands; destruction of crops and uprooting of trees; extrajudicial executions;
mass arbitrary arrests and detention; torture and ill treatment.  Over the
last three years, Israeli military actions in the OPTs have resulted in almost
total suffocation of economic, political and social life; the humanitarian
crisis continues to deepen, including escalating unemployment, poverty and
malnutrition rates; civilian infrastructure has been devastated and civil
government is on the verge of collapse.


These systematic violations
of international human rights and humanitarian law have been met with
consistent inaction from the international community, particularly from the
High Contracting Parties to the Fourth Geneva Convention.  Total impunity
for such violations, including war crimes, constitutes a breach of the clear
legal obligations of the High Contracting Parties.  Furthermore, the
failure to heed the warnings of civil society; Palestinian, Israeli and
international; regarding the consequences of this failure to act to ensure
protection of the Palestinian civilian population perpetuates the current cycle
of violence and may ultimately result in a state of total lawlessness in the
region.

 

Fourth Geneva Convention

The Gaza Strip and West
Bank, including East Jerusalem have been subject to an ongoing illegal
belligerent occupation by Israel for the last 36 years.  As such, the
Geneva Convention Relative to Civilian Persons in Time of War 1949, (the
Convention) is the primary legal framework governing activities in the Gaza
Strip and West Bank, including East Jerusalem.  As the Occupying Power,
Israel is obligated to provide a wide-range of protections to the Palestinian
civilian population living within these territories.  The applicability of
the Convention to all of these territories occupied by Israel since 1967 has
been repeatedly reaffirmed by the High Contracting Parties to the Geneva
Conventions, the International Committee of the Red Cross, and in UN
resolutions.  The latest such reaffirmation can be found in the concluding
statement of the High Contracting Parties following their meeting of 5 December
2001.  Israel, however, has continued to deny the 
de jure applicability
of the Convention to the West Bank, including East Jerusalem, and the Gaza
Strip
[1]

 

However, the attitude of
the state of Israel does not alter the
 de jure applicability of
the Convention to the OPTs.  Contrary to some claims by Israel, the
implementation of the Oslo accords, including the establishment of an interim
governing authority, the Palestinian Authority, also does not alter the status
of the Convention.  According to articles 7 and 47 of the Convention, no
agreement between the belligerents shall deprive the protected persons of their
rights as guaranteed in the Convention.  The Convention remains applicable
until the dismantlement of the ongoing military occupation.  The Oslo
accords, which were meant largely as a confidence-building measure to move the
parties towards the end of the occupation with final status negotiations to
have been completed by 4 May 1999, failed to take any account of the rights and
protections afforded to Palestinians both individually and collectively under
this Convention, and international humanitarian and human rights law in
general.  In reality, the Oslo agreements, rather than furthering the
region towards a viable and fair solution for all parties, effectively
permitted the deepening of Israeli military control over the OPTs,
strengthening the apartheid segregation, including the ‘bantustanisation’ of
Palestinian communities, and expediting the development of the settlement
programme.  The so-called "security fence" in the West Bank is
just the most recent manifestation of Israel’s colonial aspirations.

 

The eruption of the
Al-Aqsa Intifada in September 2000 came in response to the continuing
violations of the Convention and other international humanitarian and human
rights law by the Israeli military in the OPTs.  The ongoing
 perpetration of grave
breaches of international humanitarian law had been identified as a catalyst
for the Intifada by PCHR and other human rights organizations even before
September 2000
.  Despite consistent
pressure from PCHR and others to halt Israel’s disregard for international
humanitarian law in the OPTs, the High Contracting Parties to the Convention
consistently ignored their legal obligations and failed to take any
constructive
 action.  A series of resolutions passed during the UN General
Assembly emergency special session recommended the convening of a conference of
the High Contracting Parties
 "on measures to enforce
the Convention in the Occupied Palestinian Territory, including Jerusalem, and
to ensure its respect, in accordance with common article 1
".  However, the meeting of
the High
 Contracting Parties which was then convened on 15 July 1999 was
adjournedafter only 15 minutes on the basis of 
"the improved
atmosphere in the Middle East as a whole"
[2] This
blatant politicization of international humanitarian law, despite the concerted
cooperative efforts of global civil society, was particularly disappointing
given the 50
th anniversary of the Geneva Conventions in 1999.  

 

Human rights
organizations and other civil society groups continued the campaign for
international action, particularly following the outbreak of the Intifada in
September 2000.  On 5 December 2001, the High Contracting Parties
reconvened in Geneva but again failed to take any concrete action in respect of
their obligations under the Convention.   The conclusion of this
second meeting was of particular concern given the context of the dramatic
escalation in violations of the Convention, including grave breaches,
perpetrated by the Israeli military against the Palestinian civilian population
at that time.  The prevailing attitude of the participating High
Contracting Parties contrasted starkly with the findings of UN and other
investigations
[3],
including that of then High Commissioner for Human Rights, Mary Robinson, which
highlighted the consistent violations of international humanitarian law
perpetrated by the Israeli military against Palestinian civilians.  Thus,
this meeting again illustrated a total disregard for the facts on the ground,
including as presented by experts mandated by the international community to
investigate the situation. 

 

Following the December
2001 meeting, predictably, the region has witnessed further escalations in
violence.  The prolonged large-scale Israeli military incursions into the
West Bank between late March and June 2002 represented perhaps the greatest
escalation in violence against Palestinian civilians to date.  However, as
this memorandum seeks to demonstrate, the Israeli military has continued to
perpetrate systematic grave breaches of the Convention against the Palestinian
civilian population throughout the OPTs.  Thus, on this, the third
anniversary of the outbreak of the Al-Aqsa Intifada, this memorandum to the
High Contracting Parties to the Convention serves to remind them of their legal
obligations in respect of the enforcement of the Convention in the OPTs and to
provide an updated summary of the pattern of Israel’s disregard for the
Convention in the OPTs over the last three years. 

 

The Israeli military and
other state agents continue to perpetrate a vast range of violations of the
Fourth Geneva Convention in the OPTs.  However for the purposes of brevity
and
 because of the severity of the acts and the regularity with which
they are committed, this memorandum will highlight certain of those grave
breaches of the Convention, as defined in article 147, perpetrated against
Palestinians civilians by the Israeli military in a widespread and systematic
manner.  This memorandum focuses on the period from 29 September 2000
until 28 September 2003.

 

 


 

 

Grave Breaches of the
Convention

 

Wilful Killings

 

Since the beginning of
the Intifada, at least 2235 Palestinian civilians have been killed by the
Israeli military and settlers in the OPTs
[4] (949
in the Gaza Strip and 1286 in the West Bank).  Civilian deaths have been
characterized by the use of excessive and/or indiscriminate force, including in
assassination attempts, military incursions, in demolition operations, during
enforcement of curfews, in response to demonstrations, or as part of routine
violence.  Many of these deaths were targeted killings, including through
use of sniper fire, often during times of quiet.  The majority of deaths
of Palestinian civilians have resulted from Israeli military actions and
methods which disregard the distinction between combatant and civilian, failing
to ensure limitations on civilian casualties. 

 

Wilful Killings of
Children

Of particular concern
are the increasing child casualties; to date, at least 432 Palestinian children
have been killed in the OPTs (212 in the Gaza Strip and 220 in the West Bank
).  Child deaths have continued to increase; in the last twelve
months child deaths in the Gaza Strip alone have increased by 13% over the
previous twelve months
[5]
Child deaths have occurred in three main contexts; during demonstrations;
during Israeli military incursions into Palestinian areas; during times of
total quiet.  It is this last category which has seen the most consistent
increase; in the last twelve months, 41
[6] children
were killed outside the context of fighting, compared with 33
[7] in
the previous twelve months and compared with 12 in the twelve months before
that
[8]
Children have been killed in their homes, as they walk to school, inside
schools, outside playing in the street.  PCHR is concerned at the
particular risk to Gazan children; children consistently constitute
approximately 25% of the total Palestinian deaths in the Gaza Strip, compared
with child deaths in the West Bank which constitute approximately 12% of the
total Palestinian deaths in the West Bank. 

 

PCHR has also recorded a
number of instances in which Palestinian children have been targeted for death
by the Israeli military; in one particularly chilling example, on 1 March 2002
 7 year-old Mahmoud Al-Talalqa was shot dead by an Israeli
soldier positioned inside an Israeli tank near a mosque in Beit Layhia in the
northern Gaza Strip.  The soldier beckoned Mahmoud and several of his
friends to approach the tank, smiling and gesturing to them.  As the
children approached, the soldier opened fire, killing Mahmoud.

 

 

Despite such killings,
there has been widespread impunity for individual soldiers responsible for
civilian deaths
.  The Israeli authorities
have consistently failed to hold individuals accountable for unlawful killings
of Palestinian civilians.  In respect of the Israeli
 military, the response
to such unlawful actions has been typified by a failure to conduct full and
public investigations in the events and a general denial of responsibility for
the incident.  According to an article published in Israeli newspaper,
Yediot Ahoronot, since the Israeli military offensive, Operation Defensive
Shield in Spring 2002, only 6 indictments had been issued against individual
Israeli soldiers in cases in which shooting incidents had resulted in civilian
deaths
[9]

 

State Assassination
Policy

Whilst condemning all
wilful killings of civilians, PCHR wishes to particularly highlight the
increasing
 reliance of the Israeli government and military on the policy of
state assassination.  This government-sanctioned policy is used to
eliminate Palestinians whom the Israeli authorities claim have ordered,
facilitated, or carried out attacks against Israeli targets.  Since June
2003, the policy has been escalated and the target group has been focused
predominantly on political leaders of Palestinian opposition groups, in
particular the Islamic group, Hamas.  Deaths resulting from this policy
constitute 13% of all killings of civilians by the Israeli military in the
OPTs.  These assassinations have been carried out in different ways, but
are generally conducted as aerial attacks against moving vehicles in which the
targeted individual is traveling, or against residential buildings or offices. 
Some assassinations have also been conducted using explosives, sniper fire,
tank shells, and armed ambushes. 

 

The policy itself
constitutes a grave breach of the Convention, and a violation of international
law in general, including in respect of the right to life and the rights to a
fair and regular trial.  The Convention specifically provides for measures
which can be taken against civilians who take up arms and engage in activities
hostile to the Occupying Power.  As a general principle of customary
international law, and as reflected in the Convention, civilians who take up
arms against the Occupying Power relinquish their protected status only for the
duration of the hostile activity.  Unlike combatants, civilians who engage
in hostilities can be arrested and prosecuted for their activities in
accordance with the law but they cannot be made the subject of an attack
outside the duration of their hostile activities.  As Antonio Cassese
qualified in a recent Expert Opinion submitted in The Public Committee Against
Torture et al. v. Government of Israel et al., civilians can only be made the
subject of attack for the duration of their direct engagement in hostilities
and when 
"engaging in a military deployment preceding the
launching of an attack in which he is to participate,…in so far as he carries
arms openly during the military deployment…In no other circumstances may a
civilian be targeted".
[10]  As
he further clarifies, 
"…A civilian who, after carrying out
military operations, is in his house or is going to a private home or to a
market, may not be the object of attack…".  
In respect of
those civilians who have indirectly participated in activities hostile to the
Occupying Power, such as involvement in preparation of such activities, the
principle remains the same.  As Cassese clearly summarises 
"…for
a belligerent lawfully to fire at a civilian it is necessary that such civilian
carry arms openly before and during an armed action; if it were not so,
belligerents would be authorized to shoot at any civilian, on the mere
suspicion of their being potential or actual unlawful combatants"
.  
Of course it is generally accepted also that a civilian who may have taken
direct part in hostilities but is sick, wounded or otherwise 
hors de
combat
, may also not be made the object of an attack.

 

In contrast, the Israeli
state assassination policy has been implemented against Palestinian civilians
who are not at the time of the assassination
 attack directly engaged
in hostilities against Israeli targets.  Whether these individuals may
have, in the past, participated directly in hostile activities, or whether they
are indirectly participating in hostile activities, including preparation of
such activities, but were not openly carrying arms at the time at which they
were subject to attack, cannot legitimize in law attacks against them. 
Furthermore, in many instances, the individual targeted for assassination could
in fact have been arrested and detained as provided for in the
Convention.  In one such example, Dr Thabet Thabet, a dentist and a member
of Fatah, was assassinated by the Israeli military on 31 December 2000 at his
home in Tulkarem.  Thabet Thabet, who was exiting his home on his way to
work at the time of the shooting attack, regularly crossed Israeli checkpoints
entering Israeli-controlled areas around Tulkarem where he could have been
arrested at any time.  

 

Clearly, this policy is
by its nature inconsistent with the principles of international humanitarian
law, and as a wilful killing of a protected person (a civilian not actively
engaged in hostilities at the time of the attack) constitutes a grave breach of
the Convention.

 

Moreover, this policy
also constitutes a grave breach in respect of the disproportionate and
indiscriminate nature of some of the attacks.  Indiscriminate attacks
"…any attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects or a combination
thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated"
[11], also constitute grave
breaches of the Convention as clarified in article 85, 3 (b) of Protocol
Additional I to the Geneva Conventions
[12].
The nature, timing and location of the assassination attacks; aerial attacks,
often in the daytime, targeting moving vehicles or buildings located in densely
populated civilian areas; display an increasing disregard for civilian
life.  PCHR statistics collated in respect of the Israeli state
assassination policy clearly evidence the threat of these attacks to
non-targeted civilians.  Between 29 September and 31 December 2000, PCHR
documented 9 cases of assassination which resulted in 9 killings of targeted
individuals and 6 killings of non-targeted civilians.  In 2001, PCHR
documented 44 assassination attacks which resulted in deaths of 43 targeted
individuals and deaths of 17 non-targeted individuals.  In 2002, PCHR
documented 59 assassination attacks, killing 75 targeted individuals and 45
bystanders.  As of 25 September, in 2003 PCHR recorded 45 assassination
attacks which killed 66 targeted individuals.  At least 47 non-targeted
civilians were also killed in these attacks.  Thus, of the total number of
Palestinians killed in the context of this policy (308 Palestinians) at least
38% (115 Palestinians) were non-targeted civilian bystanders.  Perhaps the
clearest example of this failure to protect civilian life in the implementation
of this policy, is the case of the al-Daraj bombing in July 2002.  This
attack, which was an assassination attempt on Hamas activist, Salah Shehada,
left 14 civilians dead, including 8 children.  This aerial attack launched
a one-ton missile from an Israeli F-16 fighter jet into a two-storey building
in the crowded residential neighbourhood of al-Daraj in central Gaza
city.  The missile, which was launched around midnight, struck the
targeted building, totally demolishing it. The explosion also destroyed
neighbouring apartment buildings and other property
[13]
It is clear that in planning this attack, the Israeli military authorities must
have been aware that the impact of such a large missile fired into such a
densely populated residential area, would have resulted in excessive civilian
casualties. 

 

More recently, the
Israeli military has stepped up its use of aerial assassination attacks. 
Between 10 and 13 June 2003, the Israeli military conducted 6 aerial
assassination attacks in the Gaza Strip, killing 6 targeted persons and 21
 non-targeted civilians[14].  
At least 133 bystanders were injured.  Again, between 21 August and 1
September 2003, the Israeli military conducted 6 aerial assassination attacks
in the Gaza Strip, killing 8 targeted individuals.  At least 8
non-targeted civilians were killed and more than 76 non-targeted civilians were
injured in these attacks
[15]
Again, this type of assassination attack; aerial bombardment targeting moving
vehicles or residential buildings in heavily populated civilian areas; displays
a wilful disregard for the civilian population.

 

Wilful Killings of
Internationals

In this memorandum, PCHR
also wishes to highlight its dismay at the ongoing impunity for the apparent
wilful killings of internationals by the Israeli military in the OPTs.  To
date, 5 internationals have been killed in the West Bank and Gaza Strip by the Israeli
military
[16]
These have included British, American, German and Italian nationals.  In
addition to the effective failure of the Israeli authorities to hold those
responsible for such killings accountable in accordance with international
legal standards
[17],
PCHR does not have any information to suggest that High Contracting Parties
have taken effective proceedings, including legal, against the Israeli
government or individual Israelis in respect of the possible willful killing of
their own nationals.

 

 

 

 

Torture or Inhuman Treatment

 

PCHR notes with grave
concern the ongoing prevalence of torture and ill treatment of Palestinian
detainees in Israeli custody.  Particularly since early 2002, PCHR has
received increased reports regarding various methods of interrogation used
against Palestinian detainees, including minors, held in Israeli jails and
detentions centres both inside Israel and in the OPTs, which constitute torture
and ill treatment as defined both in this Convention and in the Convention
Against Torture and other international instruments. 

 

Despite Israel’s clear
legal obligations in respect of the prohibition on torture as both a
 jus cogens norm of
international law, as a High Contracting Party to this Convention, and as a
State party to the Convention Against Torture and other international human
rights treaty law, Israel has consistently failed to outlaw torture and ill
treatment.  In concluding reviews of Israel’s implementation of the
Convention Against Torture, and the International Covenant on Civil and
Political Rights, the UN Committee Against Torture and the UN Human Rights
Committee respectively, reiterated the concerns of human rights organizations
that unlawful practices of physical and psychological pressure continue to be
used by members of Israel’s General Security Services (now referred to as
Israel Security Agency or ISA) against detainees
[18]
A ruling of the Israeli High Court of Justice in 1999 failed to outlaw all
forms of torture and ill treatment and in fact contradicted the absolute nature
of the prohibition on torture in stating that 
“[i]f the State wishes to
enable GSS investigators to utilize physical means in interrogations, it must
seek the enactment of legislation for this purpose.”
  The ruling,
as highlighted by the UN Human Rights Committee, also further allowed for the
use of the "necessity defence" argument as a justification for
actions taken by GSS interrogators.  This argument has been consistently
accepted by the Attorney General in investigations conducted into complaints
from detainees.  Despite claims to the contrary by Israeli officials, the
failure of the High Court in this instance served to support a state-sanctioned
policy of ill treatment of Palestinian detainees in which torture is endemic.

 

According to statistics
recently compiled by the Public Committee Against Torture in Israel (PCATI),
during the first six months of 2003, approximately 58% of Palestinians detained
by Israel were exposed to direct physical violence.  PCATI further found
that 52% of detainees were subjected to sleep deprivation and 79% were
subjected to verbal abuse, threats and humiliation
[19]
Torture and ill treatment of detainees has invariably included beatings;
slappings; shackling in painful positions; kicking; breaking of toes; prolonged
blind-folding and cuffing; denial of access to medical care and supplies;
inadequate provision of water; inadequate provision of food, including rotten
or insufficiently nutritious foods; overcrowding; exposure to extreme
temperatures; blacked out cells; inadequate hygiene facilities and supplies,
including lack of toilets/insufficient access to toilets
[20].

 

The case of Detention
Facility 1391 in particular illustrates the ongoing Israeli policy of torture
and ill treatment of Palestinians in detention.  Detention Facility 1391
is a secret Israeli detention facility which has
 been used to detain and
interrogate Palestinians for many years.  However, its existence was not
publicly acknowledged by the Israeli Minister of Defence until April 2002
following the investigative efforts of human rights organization, Hamoked
which submitted a petition regarding its existence and the
practices implemented against Palestinians held in detention there to the
Israeli High Court.  Statements taken from former detainees revealed that
Palestinians detained in this facility had been routinely subject to inhuman conditions
and methods of interrogation, both physical and psychological, which constitute
torture.  Inhuman conditions of detention included airless cells with the
windows blacked out, cells measuring only 1 metre by 1.5 metres with no toilet
facilities, being blindfolded for many hours.  Interrogation methods and
other treatment from Israeli military guards and GSS personnel included
beatings and other physical and verbal abuse.  Palestinians detained in
this facility were effectively "disappeared"; requests to the Israeli
authorities for notification of the whereabouts of detainees arrested and sent
to this facility were refused, the facility’s existence was denied, access to
legal counsel and to the International Committee of the Red Cross was also
refused.  Human rights organizations are currently campaigning for this
facility to be closed
[21]

 

 

The continuing
prevalence of torture and inhuman treatment by the Israeli authorities,
including the use of methods of interrogation which constitute torture and
other ill treatment as defined in international law, the failure to promulgate
an absolute prohibition in domestic law, and the failure to investigate and
prosecute those responsible for such acts in accordance with international law,
constitutes a grave breach of this Convention. 

 

 

 

Wilfully Causing Great Suffering or Serious
Injury to Body or Health

 

Since the beginning of
the current Intifada in September 2000, the Israeli military and other
government institutions have pursued a number of policies in the OPTs which
have resulted in great suffering to the wider Palestinian population.  As
the
 Occupying Power, Israel’s actions in the OPTs, including those in
the name of "security" must always be limited by the principle of
proportionality.  However, whilst these policies are invariably justified
by Israeli officials as a "legitimate
response to
"terrorist" actions of armed Palestinian groups, as the UN Special
Rapporteur, John Dugard, asserts in his latest report
"…it
may be that Israel’s response to terror is so disproportionate, so remote from
the interests of security, that it assumes the character of reprisal,
punishment and humiliation"
[22].  The ongoing
large-scale military operations, assassination attacks, aerial bombardment have
all brought ongoing suffering to Palestinian civilians in the Gaza Strip and
West Bank, including East Jerusalem.  However, the Israeli policies of house
demolition and closure perhaps illustrate most clearly this absence of
proportionality, and the intentional infliction of suffering on the wider
civilian population.  Pictet’s Commentary clarifies that "great
suffering" within the meaning of article 147 includes physical suffering
but also non-physical suffering, including moral suffering.  Pictet also
asserts that this grave breach refers to great suffering 
"…inflicted
as a punishment, in revenge or for some other motive, perhaps out of pure
sadism."
  PCHR asserts that in this context the Israeli military
policies of house demolition and closures in particular, have inflicted a level
of suffering on the Palestinian civilian population which falls within the
scope of article 147. 

 

House Demolitions

Destruction to civilian
property has been a prominent feature of Israeli military campaigns in the OPTs
and elsewhere for many years.  In the last three years, the demolition of
civilian homes, commercial properties, and education and health facilities has
become a routine occurrence throughout the OPTs.  To date, at least 1260
civilian homes have been totally destroyed in the Gaza Strip alone, leaving
approximately 10000 Palestinians homeless.  At least 1067 more homes have
been damaged.  The context of home demolitions varies throughout the OPTs
but is in most instances related to the expansion of Israeli control over areas
in the OPTs, for annexationist purposes, or for shorter-term gains during
military operations.  It has also been used as a declared method of
punishment and deterrence.

 

The implementation of
this policy in the Gaza Strip in particular has steadily increased over the
past three years; between September and December 31 2000, 114 homes were
totally demolished; 291 were demolished in 2001; 376 homes were demolished in
2002.  As of 24 September, 485 homes were totally demolished.  Thus,
the average annual increase in homes demolished by the Israeli military in the
Gaza Strip is approximately 30%.  In the Gaza Strip, the house demolition
policy has been focused largely in areas surrounding Israeli settlements and
along border areas.  This policy affects mostly the refugee communities in
the OPTs, rendering entire families homeless for the second or even third time
[23]
Rafah town and refugee camp, located along the Israeli-controlled border with
Egypt, has been most affected by this policy.  Home demolitions in Rafah
constitute more than half of the total demolitions in the Gaza Strip in the
last three years; as of 14 August 2003 at least 620 Palestinian homes in Rafah
have been totally demolished by the Israeli military, leaving approximately
6000 Palestinians homeless. 

 

Clearly the extent of house
demolitions reflects a policy of extensive destruction within the meaning of
article 147 of this Convention (see following section on Extensive Destruction
to Property).  However, in addition, the house demolition policy also
inflicts great suffering on the civilian population in respect of the manner in
which they are conducted and the longer term humanitarian consequences;
demolition operations are often conducted in large-scale military operations
carried out using military bulldozers, tanks, and other armoured
vehicles.  Live ammunition is often used and the operations are very often
conducted late at night whilst the residents are sleeping.  The
inhabitants are rarely given any prior warning of the demolition and are often
only aware of the impending demolition of their home when they hear the
military vehicles approaching.  Increasing numbers of residents have been
injured or killed in such operations
[24]
The excessive force used and the failure to provide warning maximize the
emotional and physical trauma of the demolition on the communities
targeted.  Those made homeless are generally given emergency assistance by
UNRWA or the ICRC, often consisting of a tent and some basic provisions. 
Few have been re-housed in adequate accommodation
[25];
many families remain split between different relatives.  Almost all of the
families subject to home demolitions lost all their possessions.  As most
recently noted by the UN Committee Against Torture, the manner in which these
house demolitions generally take place is also in violation of international
prohibitions on ill treatment
[26]

 

As a legal aid agency,
PCHR has submitted a number of complaints to the Israeli authorities regarding
house demolitions, including requests for investigations, prosecution of those
responsible and
 compensation for the victims of this
policy.  To date, PCHR is not aware of any instance in which the Israeli
authorities have provided any form of reparation to Palestinian victims of the
Israeli military policy of house demolition
.

 

Justifications for house
demolitions are invariably given as "security".  However, the
location, extent and the manner in which these demolitions are conducted
evidences the disproportionate nature of the policy and further indicates that
the demolitions are conducted as a form of collective punishment against
Palestinian civilian communities and for the purposes of expanding Israeli
control in the OPTs (see section on Extensive Destruction of Property).

 

In particular, the
escalating policy of demolishing the family homes of Palestinians suspected of
involvement in attacks against Israeli targets, raises serious concerns under
both this Convention and international humanitarian and human rights law in
general.  The deterrent, and thereby inherent punitive nature of these
demolitions in particular has been espoused by Israeli officials; in reference
to arguments surrounding the use of forcible transfers of Palestinians, Shai
Nitzan, head of Security Matters at the Attorney General’s Office stated, 
"We
believe the deterrent factor is legitimate…There is no question that the
deterrent factor has been accepted as legitimate in some matters, such as house
demolitions.  The army carries out other deterrent measures such as
bombing empty Palestinian security buildings"
[27] 
As the Human Rights Committee most recently noted, as a declared punishment and
deterrent, such demolitions, and the manner in which they are implemented,
constitute a violation of the international prohibition on torture and ill
treatment
[28]
As of 1 September 2003, at least 272 such demolitions have been conducted in
the OPTs, leaving approximately 2000 Palestinians homeless.  Clearly, in
respect of its nature, the extent of its use and its impact on civilians, this
government-sanctioned policy of punishment
[29] constitutes
a violation of article 147 of this Convention on several counts, including as a
form of torture and inhuman treatment, willfully causing great suffering, and
as extensive destruction of civilian property carried out wantonly and
unlawfully.

 

Closures and Curfews

Again, the Israeli
authorities have implemented a policy of movement restrictions on the
Palestinian civilian population in the OPTs for a number of years. 
However, this policy has escalated to unprecedented levels since September
2000.  The network of restrictions on movement of people and goods has
effectively rendered any semblance of normal life impossible.  The system
of military checkpoints, road barriers, fences, trenches, travel permits,
patrols, and closure of external borders have effectively imprisoned the wider
population of the OPTs in their immediate locales.  The regular imposition
of curfews in many areas has further effectively placed thousands of
Palestinians under house arrest.  These ongoing restrictions on movement
of people and goods have crippled the economy, halted family, social, cultural
and political life and have directly precipitated a humanitarian crisis with
rising unemployment and increasing impoverishment of the Palestinian
people.  Figures for February 2002 supplied by the Palestinian Central
Bureau of Statistics estimate that 84.6% of households in the Gaza Strip are
living below the internationally-recognized poverty line of $2 per day. 
Unemployment has reached as high as 80% in some areas.   In addition,
the rising poverty levels, and restrictions on movement of goods, have
necessarily impacted on access to food – according to a survey conducted by
Care International and USAID, 17.5% of the children in the Gaza Strip are
suffering from moderate to severe malnutrition and 7.9% in the West Bank
[30]
This survey was conducted in 2002; in light of the ongoing closures and
military attacks throughout the OPTs, and the resulting ongoing economic
decline, it is appropriate to assume that this figure has continued to
increase. 

 

The impact of movement
restrictions on access to health has been particularly disastrous; road
closures, passage through checkpoints and long periods of curfew prevent access
to hospitals, clinics, and general medical services.  Many patients have
been denied or delayed access through checkpoints to hospitals, including for
emergency treatment.  At least 63 Palestinians have died at checkpoints or
elsewhere following denied or delayed access to medical care because of
closures or curfews since 29 September 2000
[31];
this number continues to increase.  Emergency cases, including women in
labor, and infants, are especially vulnerable to these delays.  During
this Intifada, in the Gaza Strip alone dozens of women have been forced to give
birth in vehicles or elsewhere due to obstructed access through checkpoints to
hospitals and clinics.  Closures and curfews have also resulted in
scarcity of medical supplies.  As the casualties from the ongoing violence
perpetrated by the Israeli military against Palestinian civilians has
continued, accessibility of effective medical supplies and equipment has
conversely declined due to the ongoing closures and curfews. 

 

Access for International
Humanitarian Agencies

Closures and curfews
have also impacted on the services provided by the International Committee of
the Red Cross and other humanitarian agencies.  The consistent access
restrictions imposed on staff members of the International Committee of the Red
Cross raises particular concerns in relation to their special status as the
guardians of the Geneva Conventions
[32]
In addition, UN agencies, government humanitarian programmes and
non-governmental humanitarian agencies have all been affected.  The
deliberate obstruction of movement of international and local staff of these
organizations, has severely impacted on the quality and quantity of
humanitarian services provided, including distribution of basic foodstuffs,
medical supplies, and other humanitarian services.  Such obstructions are
particularly grave in light of the increasing dependence of Palestinian
civilians (approximately 30% of the population of the OPTs are entirely
dependent on aid from international humanitarian organizations). 
Obstructions on access for these organizations is not only limited to denial of
access through checkpoints.  Both staff and equipment have regularly
reported being shot at or physical or verbally threatened by Israeli
soldiers.  In the worst case, an international staff member of the UN
Relief and Works Agency (UNRWA) was shot and killed by an Israeli sniper in
Jenin refugee camp on 22 November 2002
[33]

 

 

These arbitrary
restrictions on movement are imposed by Israeli soldiers at the more than 200
permanent checkpoints, and additional temporary or roaming road blocks located
throughout the OPTs.  Passage through checkpoints has been characterized
by harassment, physical and verbal abuse
[34],
killings, humiliation, arbitrary arrest and detention, prolonged and
unnecessary delays.

 

Closures have also been specifically
identified by various international agencies as being the primary cause of the
ongoing humanitarian crisis in the OPTs.  In March 2003, the World Bank
concluded that
 The proximate cause of Palestinian
economic crisis is closure – the Government of Israel’s imposition of
restrictions on the movement of Palestinian goods and people across borders and
within the West Bank and Gaza”
[35]
The UN Office for the Coordination of Humanitarian Affairs asserted in December
2002 that 
"…the humanitarian crisis in the West Bank and Gaza is a
crisis of access and mobility
….”.  Information regarding the impact
of closures on the humanitarian situation and on wider economic development has
been widely distributed, repeatedly updated, and specifically provided to the
Israeli government, military and public. 

 

Closures
as a policy are claimed necessary to improve Israel’s security.  However,
the methods of implementation and the results of these measures indicate that
any security justifications for closures and curfews are relatively baseless;
attacks against Israeli targets both inside Israel and in the OPTs have
continued; individuals intent on attacking Israeli targets are able to
circumvent checkpoints, use fake identification papers.  Indeed, the
ongoing use of closures has conversely fuelled hostility and anger towards
Israel through impoverishment, humiliation and death.  PCHR asserts that
these factors indicate intent to cause suffering, and that the suffering
inflicted reaches a level of severity which falls within the scope of the
prohibition provided in article 147 of the Convention.

 

Unlawful Confinement

The extent to which the
Israeli military has sought to control the freedom of movement of Palestinians
in the OPTs may also raise issues under the prohibition of unlawful confinement
of a protected person, defined as a grave breach of this Convention in article
147.  As detailed above, the network of controls on movement have resulted
in the effective imprisonment of Palestinians within their immediate
locales.  The curfews, usually enforced by shooting at Palestinians who
break the curfew for whatever reason, have further effectively placed thousands
of Palestinians under house arrest for periods of up to 3 months. These
movement restrictions are almost entirely arbitrary.  Curfews in
particular are implemented without warning on whole communities.  In some
instances, 24-hour curfews are lifted for a period of 2-3 hours only once a
week and have continued for months; between June and September 2002, the town
of Nablus was placed under 24 hour military curfew for at least 70 days. 
Many communities throughout the OPTs have been subjected to nightly curfews
since the beginning of the current Intifada.  Individuals who fail to
observe the curfew, including those who have sought emergency medical
attention, have been shot and killed.  Commonly, when the curfew is lifted
for a short period to obtain basic supplies the Israeli military have
re-imposed the curfew earlier than stated.  PCHR therefore asserts that
the extent of these movement controls, particularly the widespread and
prolonged use of curfews, may constitute deprivation of liberty to an extent
which falls within the scope of article 147.

 

Serious Injury to Body
or Health

Over the last three
years, approximately 23,630
[36] Palestinians
have been injured in Israeli military actions conducted in civilian
areas.  Many of these wounded have sustained long-term and even permanent
injuries as a result.  Like wilful killings, injuries to civilians have
been sustained in the context of disproportionate and indiscriminate use of
force by the Israeli military in the OPTs.  Palestinian civilians have
been injured in demonstrations, during Israeli military incursions, during
house demolition operations, at checkpoints, during times of complete quiet,
and during assassination attacks.  Again, it is this last category which
raises particular concerns, illustrating an increasing disregard for the
principles of proportionality and civilian life.  The total number of
Palestinians injured in assassination attacks since the beginning of the
Intifada is at least 626.  Of these, only 32 were targeted persons. 
The remaining 95%, or 594 Palestinians injured were non-targeted civilians,
passing by.  The numbers of injuries are increasing; in 2001, 40
non-targeted civilians were injured in 44 assassination attacks; in 2002, 210
non-targeted civilians were injured in 59 assassination attacks; and to date in
2003, 331 non-targeted Palestinian civilians have been injured in 45
assassination attacks by the Israeli military.  It is the facts regarding
injuries to Palestinian civilians, including during assassination attempts,
which perhaps most clearly illustrate this consistent pattern of the use of
increasingly excessive and indiscriminate force by the Israeli military. 

 

Injuries, particularly
those which impact on long-term health, have serious consequences not only for
the individual, but also for the family, and for the community.  The
economic and social impact of a long-term injury to a main income-provider in
 the family, particularly
the father, can be especially serious, placing additional financial and other
burdens on families already impoverished in the ongoing wider economic and
social breakdown in Palestinian society.  Rehabilitation of injured
civilians is hampered by the impact of closures on availability and
sustainability of medical supplies and services.  The increasingly large
percentage of the population whose health has been permanently impaired by such
injuries will impact on future sustainable development, including in respect of
the size of the workforce, and the costs of necessary provision of welfare and
long-term medical services.

 

Again, to date, and
despite repeated complaints to the Israeli military and government, PCHR is
unaware of any case in which a Palestinian civilian, injured by the Israeli
military, has received full and fair reparation, including compensation
.

 

The impact of the
increasing violence on mental health of Palestinian civilians, particularly
children, also raises concerns.  Aside from physical injuries, there has
been increased prevalence of mental health problems within the wider
Palestinian community.  Areas that are subjected to routine violence by
the Israeli military, such as the refugee communities in Rafah and Khan Younis
in the Gaza Strip, have seen a particularly high instance of mental health
problems.  These areas witness daily artillery attacks by the Israeli
military located in nearby settlements and military posts.  These
communities have been ravaged by repeated Israeli military incursions, hundreds
of homes have been damaged, civilians have been killed and injured,
infrastructure has been destroyed and any efforts to rebuild the area or supply
essential services are obstructed by the routine violence of the Israeli
military in the areas. 

 

According to a survey
conducted by the Gaza Community Mental Health Programme amongst children in the
Tuffah area of Khan Younis and in the Salah al-Din Gate area in Rafah, 34.5% of
children had begun to display
 medium Post-Traumatic Stress Disorder
symptoms and 54.6% of children had begun to develop symptoms of acute Post-Traumatic
Stress Disorders.  Again, considering the ongoing closure policy imposed
on the Gaza Strip and its impact on health services, treatment for children and
adults suffering from mental illness, and other psychological problems, is, and
will continue to be, insufficient.  Such widespread mental health
problems, which in many instances receive inadequate or no assistance at all,
again raise serious concerns for future development of Palestinian society.

 

 

 

Unlawful Deportation or
Transfer

 

PCHR is concerned at the increasing use of
deportation and transfer of Palestinians by the Israeli authorities.  In
2002, the Israeli authorities resumed a policy of deportation and transfer of
Palestinians which had been dormant for many years
[37]
In May 2002, following negotiations to end the siege of the Church of the
Nativity in Bethlehem, and in agreement with the Palestinian Authority, 13
Palestinians were deported to various European states and a further 26 were
transferred to the Gaza Strip.  The acquiescence of those transferred or
deported does not negate the illegality of this measure; the deportation and
transfer of these individuals remains a violation of international humanitarian
and human rights law, including article 147 of this Convention. 

 

However, PCHR is
particularly concerned about the Israeli policy of
 
"
assigned
residence" which essentially allows the Israeli military to forcibly and
unlawfully transfer Palestinian civilians from the West Bank to the Gaza
Strip.  This policy is provided for in Security Provisions (Judaea and
Samaria) Order no.510, Amendment no. 84, empowering the Military Commander of
the West Bank to assign residence to Palestinians alleged to pose a threat to
"security".  The first implementation of this order occurred in
September 2002 when the brother and sister of a Palestinian whom Israel alleges
was involved in attacks against Israeli targets, were transferred from
detention in the West Bank to the Gaza Strip.  The assigned residence
order imposed was for a two-year period with reviews to determine whether there
was an ongoing security threat scheduled every six months
[38]
To date, three such reviews have been conducted but the order has not been
rescinded.  Throughout this process, the defense was denied access to
information submitted to the Israeli military, the Military Appeals Committee
and the Israeli High Court, by the General Security Services (GSS).  This
information formed the basis of the original order and was the basis for the
refusal of both appeals. 

 

In 2003, there have been
at least two further instances of unlawful transfer of Palestinians within the
OPTs; on 13 May 2003, a registered
 Palestinian resident of the Mawasi
area in the southern Gaza Strip, was issued with a military order signed by
Maj. Gen. Doron Almoge, GOC of the Southern Command, demanding he leave the
area (the Mawasi) within 24 hours.  The order was valid for a six month
period.  Appeals were submitted to the Israeli High Court and
rejected.  The individual was then transferred out of the Mawasi on 21 May
2003.  In the second case, on 18 May 2003, a Palestinian resident of Jenin
was transferred to the Gaza Strip under an Israeli military 
"assigned
residence" 
order for a period of two years.  The
individual was first arrested on 19 June 2002, and was being detained under an
Israeli military administrative detention order when the assigned residence
order was issued.  

 

In a third case, in May
2003 the Israeli Military Commander of the Central Command, Major General Moshe
Kaplinski, ordered 5 Palestinians, who were at the time held in administrative
detention, to be 
"assigned residence" to the Gaza
Strip from the West Bank for a period of two years.  The 
"assigned
residence"
 order was challenged before a Military Appeals
Committee but before a final decision was reached the order was rescinded.

 

In addition to the use
of military orders to facilitate transfers, PCHR has documented a number of
cases in which Palestinians registered as resident in the West Bank were
arbitrarily transferred to the Gaza Strip by the Israeli military without
issuance of a military order, often following periods of detention.  In
one such case, a Palestinian registered to the West Bank was transferred to the
Gaza Strip on 12 August 2003.  The individual was arrested in Jaffa for
failing to have obtained a permit to enter Israel.  He was fined by
Israeli police and then handed over to the Israeli military who then
transferred him to the Erez crossing.

 

PCHR remains concerned
that this policy of transferring Palestinians to the Gaza Strip, both with and
in the absence of an Israeli military order, will continue
.

 

 

 

Unlawful Confinement of
a Protected Person…Wilfully Depriving a Protected Person of the Rights of Fair
and Regular Trial

 

The Convention regulates
the lawful detention of civilians by the Occupying Power.  Powers of
arrest and detention are subject to internationally-standard limitations that
seek to prohibit torture and ill treatment, arbitrary arrests and detentions,
and guarantee detainees’ rights.  The Convention provides that the
Occupying Power may arrest and detain, to intern and to assign residence to
civilians in the territories it occupies
[39]
Each of these measures is subject to specific conditions, including reviews and
appeals, access to legal counsel, rules of evidence, proportionality of
penalties, and non-retroactivity
[40]

 

In contrast, the Israeli
military and security services have continued to subject thousands of
Palestinians, including minors
[41],
to arbitrary arrest and detention in violation of these fundamental provisions
of the Convention.  The last three years have seen a massive increase in
the number of arrests and detentions of Palestinians by the Israeli military
and security services in the OPTs.  In particular, during the Israeli
military offensives, Operation Defensive Shield and Operation Determined Path,
as many as 8000 Palestinians were detained in mass arrests campaigns. 
Most of these Palestinians were arrested on the basis of gender, nationality
and age.  Many were detained in Israeli military posts for periods of up
to ten days before being released.  However, hundreds were transferred to
detention facilities in Israel where they were, and in some cases continue to
be, held without charge or trial, denied access to legal counsel.  Many of
these detainees reported varying forms of torture and ill treatment in
detention.

 

The year 2002 in
particular witnessed an unprecedented increase in the use of administrative
detention orders against Palestinians in the OPTs.  As of the end of 1999,
13 Palestinians remained in administrative detention in Israeli detention
facilities.  Accurate figures for current administrative detainees are
difficult to collate but human rights organizations estimate the number of
Palestinians currently held by the Israeli military under administrative
detention orders at 1150.  Administrative detention orders are imposed by
the Israeli military commanders for terms of up to six months which are renewable
indefinitely.  Palestinians subjected to administrative detention orders
have been detained without charge or trial, access to legal counsel and family,
and without access to effective appeals.  As highlighted by the UN Human
Rights Committee in August 2003, prolonged detention without access to legal
counsel or others also raises serious concerns under the international
prohibition on torture and ill treatment. 

 

Fair Trials

Palestinians in the OPTs
continue to be subject to the jurisdiction of the Israeli military court
system.  Article 66 of the Convention provides for the establishment of
 "properly constituted, non-political military
courts
that sit in the occupied
territory.  As Pictet clarifies, these courts are to be established in
 "accordance with the recognized principles
governing the administration of justice
".  The requirement of being "non-political" is included to preclude the use of courts as "an instrument of political or racial persecution"[42].  For many years, international, Palestinian and Israeli human
rights organizations have argued that the Israeli military court system fails
to meet minimum international standards on rights to a fair and regular
trial.  Dominant issues of concern regarding military court procedures
include:

·              Failure
or delays in notifying legal counsel of the location, date and timing of court
hearings

·              Refusal
to submit the bill of indictment to the defendant or defence counsel

·               Delays
and postponements of hearings without reasonable justification

·               Holding
court sessions in the absence of the defendant or defence counsel

·               Inadequate
or absence of translation services (Hebrew-Arabic-Hebrew
)

·              Use
of confessions obtained through torture

·               Refusal
to submit prosecution evidence to the defendant or defence counsel for review

·               Reliance
on evidence presented by the prosecution but to which the defence is denied any
access

·               Lack
of an effective appeals process

 

The Convention
specifically provides for procedures regarding trials; article 72 in particular
details the requirements of access to defence counsel of choice, right to
interpretation services, the right to call and examine witnesses and, for
defense counsel, 
"the necessary facilities for preparing the
defense"
.  As Pictet’s commentary further clarifies, the "defense
counsel must be given by the judicial authorities concerned all the facilities
and freedom of action necessary for preparing the defence.  Above all, he
must be allowed to study the written evidence in the case, to visit the accused
and interview him without witnesses and to get in touch with persons summoned
as witnesses"
[43]

 

Access to Defense
Counsel

Access to defense
counsel as provided for in the Convention presents one of the greatest problems
of the Israeli military courts system.  Firstly, since 1995 and the
establishment of the Palestinian Authority, Palestinian lawyers have not been
granted permission to visit clients detained by the Israeli authorities, nor to
represent them in Israeli military courts.  Only those lawyers who have
qualified under the Israeli Bar are permitted to make representations before
the Israeli military and civil courts.  Since Palestinians from the Gaza
Strip have no access to the Israeli legal training system they cannot qualify
under the Israeli Bar and are therefore effectively denied access to Israeli
military courts.  This is also the case for West Bank Palestinian lawyers. 

 

Secondly, even for those
lawyers who are able to make representations in the Israeli military courts,
access to clients detained by the Israeli military and security services is
extremely restricted.  Israeli military order no.1500, issued on
 5 April 2002 and effective retroactively from 29 March 2002,
permits
 an IDF officer of the rank of at least Captain
or a police officer of the equivalent rank
 to ”order in
writing the holding of a detainee in detention, for a period of not more than
18 days”
.  The order permits the denial of access to legal counsel
for the period of 18 days.  At the end of the 18 day period, the detainee
must be brought before a judge who can effectively extend the period of
detention and impose an order further prohibiting access to legal
counsel.  The existing military order no. 378, permits the renewal of this
order for a period of up to 90 days.   In May 2002, the Israeli military
further issued an additional three military orders (no.1501, 1502, 1503)
permitting further extensions to the prohibition on detainees’ access to legal
counsel.  Petitions submitted to the Israeli High Court of Justice by
human rights organisations challenging the legality of these orders have been
rejected.

 

Israeli High Court of
Justice

In addition, over the
last three years, the qualification of the Israeli High Court as an effective
appeals body, as an essential component of the right to a fair and regular
trial
has been called into question.  Final
appeals against rulings of the Israeli military courts have been regularly
challenged by petition to the Israeli High Court.  In the last three
years, the Israeli High Court has been asked to rule on the legality of a
number of policies implemented by the Israeli military, including use of
flechette tanks shells
[44],
human shields, house demolitions, access to legal counsel during detention
[45],
and state assassinations.  However, to date, the Israeli High Court has
not acceded to requests from petitioners to rule on the legality of Israeli
military methods and policies.  Invariably the High Court has relied on an
argument that
 "choosing military means the defendant [the Israeli
military] uses to prevent lethal terrorist attacks before they occur is not a
subject that this court can consider."
[46] 
This ongoing failure to hold the Israeli military and state accountable
according to its obligations under both customary international law and as a
State party to international treaty law, including this Convention, raises
serious doubts regarding the independence of the Israeli High Court and its
qualification as an effective appeals body within the meaning of international
law, including article 73 of this Convention.

 

 

 

Extensive Destruction and Appropriation of Property not Justified by
Military Necessity and Carried out Wantonly and Unlawfully

 

Destruction of Civilian
Property

As detailed above, the
Israeli military have pursued a policy of destruction of civilian property for
many years, but since September 2000 destruction to civilian homes, businesses,
agricultural land, educational and health facilities, civilian infrastructure,
civil government property has reached an unprecedented level.  This
extensive destruction to civilian property has been carried out in various
contexts throughout the OPTs.  Perhaps the most intensive large-scale
destruction of civilian property took place during the Israeli military
offensives, Operation Defensive Shield and Operation Determined Path, conducted
largely in the West Bank in 2002.  Between March and June 2002, the
Israeli military systematically damaged or destroyed civilian homes; commercial
properties; educational institutions; hospitals, clinics, medical vehicles
throughout the West Bank.  This period also saw widespread and targeted
destruction to civilian infrastructure including electrical, water,
communications and sewage networks.   The town and refugee camps of
Nablus, Ramallah and Jenin were particularly affected.  In Jenin refugee
camp alone, approximately 169 Palestinians homes, totaling 374 apartment units
and affecting 800 families
[47],
were totally destroyed by the Israeli military during their prolonged siege of
the refugee camp and town in April 2002. 

 

In the Gaza Strip, such
targeted attacks on civilian property have devastated many areas.  In
Rafah and Khan Younis the systematic targeted destruction of civilian homes in
particular has left at least 8000 Palestinians homeless.  In a more recent
Israeli military incursion into the northern town of Beit Hanoun which took
place in May and June 2003, the Israeli military repeatedly targeted the
civilian infrastructure, including electricity and water networks, roads and
bridges.  Repairs conducted on electricity and water networks damaged by
the Israeli military were again destroyed by Israeli soldiers and other
attempts to repair the infrastructure were blocked by Israeli soldiers on the
ground
[48].  
Commercial properties have also been targeted; as of 30 June 2003, at least 371
commercial properties were destroyed in the Gaza Strip alone. 

 

Of particular concern
has been the widespread destruction to agricultural land and crops.  Since
the beginning of the current Intifada, the Israeli military have systematically
razed large areas of Palestinian agricultural land, uprooted trees, including
olive and citrus groves, destroyed crops, agricultural equipment, wells and
water irrigation networks.  In the Gaza Strip, approximately 20868 dunums
of Palestinian agricultural land has been razed by the Israeli military; this
constitutes approximately 12% of the total agricultural land in the Gaza
Strip.  Areas particularly affected are located along the eastern border
with Israel, and al-Sayafa in the northern Gaza Strip.  Al-Sayafa, in
which the Israeli settlements of Dugit and Eli Sinai are located, has been
subjected to intensive land-razing operations since 2000.  Since the
beginning of the Intifada, at least 65% of the area of al-Sayafa, not including
land expropriated prior to 2000 for the construction of the two settlements of
Eli Sinai and Dugit, has been razed by the Israeli military
[49].

 

In most instances,
destruction to civilian property is conducted without prior warning.  Even
in those instances where formal notification has been made, the timeframe has
provided no opportunity for effective appeal against the order.  PCHR has
submitted a number of complaints regarding various forms of civilian property
destruction, including homes, commercial properties, agricultural land, to the
Israeli authorities.  However, in those cases in which a response has been
received, the Israeli authorities have relied on an incorrect interpretation of
international law, specifically article 23 of the Hague Convention IV 1907
[50],
to the effect that the State does not bear responsibility for the incidents and
that the complainant does not have a right to demand reparation, including
compensation.

 

Appropriation of
Civilian Property

Perhaps the most
sinister of all the grave breaches perpetrated by the Israeli military and
government against the Palestinian civilian population in the OPTs, is the
appropriation of Palestinian
 land and property.  The state of Israel has
pursued a policy of territorial expansion in the OPTs since the beginning of
the occupation in 1967
.  As stated by Miloon Kothari, the UN
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living
Israel has a "…long record of
depopulation and demographic manipulation by way of expulsion, destruction of
homes and villages, and implantation of settlers prior to and since its
establishment as a State"
[51].  
This long term policy has indeed been primarily implemented through the ongoing
expansion of the illegal settlement programme.  There are currently at
least 143
[52] illegal
Israeli settlements in the Gaza Strip and West Bank, including East
Jerusalem.  These settlements are further used to facilitate expansion of
control over the OPTs by the network of roads, access routes and military posts
and checkpoints established ostensibly to facilitate "safe" movement
of settlers around the OPTs, and back and forth into Israel. 

 

The settlement programme
continues to expand through increased investment from the state
[53]
There are increasing numbers of new settlements, establishment of settlement
"outposts", construction of new roads and access routes, as well as
expansion of existing settlements, including population, services, residential
and other properties located inside settlements.  This settlement
expansion has been facilitated in particular by the Israeli military policies
of house demolition and land razing.  These policies, as discussed earlier,
are generally focused in areas around settlements, and settlement roads. 

 

In the Gaza Strip,
Palestinian agricultural land located adjacent to settlements or settlement
roads is often razed by the Israeli military, using bulldozers and heavy
military vehicles to flatten crops, uproot trees and demolish agricultural
buildings
.  The Israeli military often cite various reasons for these
operations, including claims that foliage in the area provides cover for
Palestinian gunmen seeking to attack the settlements.  These areas of land
are then gradually incorporated into the settlements, either by the
establishment of fences around the property or, more often, by the de 
facto incorporation
of the land into the settlement’s existing territory by denying the Palestinian
owners or workers access to the land.  This prohibition on access is
largely enforced by the threat of sniper-fire, arrest or detention of those
Palestinians who approach the land, including the land owners. 

 

In the West Bank, new
settlements and settlement outposts are established regularly through
transplant of caravans or other temporary structures, water towers and other
basic infrastructure to new locations, which are then gradually built upon to
include permanent structures.  In the Gaza Strip, the processes are
slightly different; the settlement programme in the Gaza Strip includes
primarily expansion of existing settlements, including agricultural lands and
construction of new properties inside existing settlements, with far fewer new
settlements being established.  More commonly Israeli territorial
expansion in the Gaza Strip involves 
de facto incorporation of
land within the boundaries of existing settlements (either fenced in or closed
off by use of sniper fire) for the purpose of so-called "buffer
zones".  The incorporation of these lands then increases the distance
between the settlers’ buildings, and Palestinians.  Few new properties
have been built on this land; instead it is used as a "buffer zone",
between the two communities, but controlled by settlers and the Israeli
military.  Thus, the areas controlled by the Israeli military, including
through snipers positioned in towers inside the settlements, can extend to up
to 2 kilometres from the settlement properties.  This procedure is also
followed to distance Palestinians from settler roads.  Attempts to access
these areas, or even proximity to the edge of these areas, is generally
responded to by sniper fire.  A number of Palestinians have been shot and
killed in these areas in the Gaza Strip. 

 

Settlement expansion in
the Gaza Strip has also been characterized by expansion of settlement infrastructure,
primarily roads and access routes.  Substantial investment in permanent
settlement infrastructure indicates a long-term planning process of permanent
territorial expansion in the Gaza Strip.  Again, these infrastructure
projects are invariably claimed necessary for the security of Israel and the
settlements whilst "minimizing" the impact on Palestinians. 
This argument has also been used over past months in Israeli arguments
regarding the "security fence" in the West Bank (see below). 
However, the following example demonstrates the insincerity of such
arguments.  Over the last three years, the Israeli military has pursued a
large-scale land-clearing operation in the central Gaza Strip to the east of
the Gush Katif settlement block.  This operation has cleared more than 300
dunums of prime Palestinian agricultural land and several homes to facilitate
the construction of a motor-way bridge over Salah al Din Street, enabling
settlers residing in Gush Katif to travel to Israel without having to cross
this main Palestinian road at ground level.  According to the Israeli
government
[54],
the bridge was allegedly intended to provide secure access for the settlers
whilst easing the situation for Palestinians whose passage along Salah al Din
Street was severely restricted by an Israeli military checkpoint placed to
secure settlers passage across the road.  The State asserted that once the
bridge was completed, the checkpoint would become unnecessary and could be
dismantled.  Despite the completion of the bridge in Autumn 2002, the
checkpoint, which has been expanded to include armoured military positions and
traffic lights, continues to be used to impose daily restrictions on the
passage of Palestinians between the north and south of the Gaza Strip. 

 

Israel’s "Security
Fence
"

Whilst the settlement
programme has been the traditional manifestation of Israel’s colonial policies,
in the last year in particular the processes of territorial expansion have
taken a different form
.  Israel’s "security
fence" in the West Bank is the most recent, and the most blatant
manifestation of the consistent government policy of territorial
expansion.  The " fence
which is currently being constructed
again in the name of "security" is being constructed not on the Green
Line, along the 1967 border with Israel, but rather largely on Palestinian land
within the occupied West Bank

 

Thus, the construction
of the "security fence" itself constitutes a violation of
international humanitarian law in that it seeks to effectively alter the
territorial integrity of the West Bank, and more seriously constitutes the
 de facto annexation to
Israel of occupied Palestinian territory.  Recent estimates put the total
area of Palestinian lands to be expropriated at approximately 55 % of the total
area of the occupied West Bank
[55].

 

The main justification
for the "security fence" is that it will physically separate Israel
from Palestinian areas enabling the total control of Palestinian access to
Israeli communities, particularly in light of attacks conducted inside Israel
by armed Palestinians.  However, the "security fence" also
serves to maintain Israeli control over the remainder of the OPTs and actually
furthers the apartheid-style 
bantustanisation of Palestinian
communities; the "security fence" will further segregate Palestinians
from Israel and Palestinian lands west of the "fence", whilst the
remaining Israeli settlements east of the "fence" will continue to
facilitate the isolation of Palestinian communities within the West Bank from
one another.

 

Additionally, the
methods employed by the Israeli military in the construction of the
"security fence" also constitute violations of this Convention, and
international humanitarian and human rights law in general.   The
 large-scale
expropriation of Palestinian lands and extensive destruction to civilian
property including homes, commercial properties, and civilian infrastructure
fall within the scope of article 147 of this Convention.  By June 2003
,
30
km of
Phase One of the construction, which runs for 145 km southwards from Jenin,
Qalqiliya and Tulkarem, had been completed.  This part of the fence runs
up to 6km inside the West Bank.  As of June 2003
, 30km of water
infrastructure and 25 water wells have been destroyed; approximately 102,320
trees have been uprooted; 85 privately-owned commercial buildings have been
demolished; 14,680 dunums of land belonging to 51 Palestinian villages and
towns have been confiscated and leveled; 65 Palestinian communities, comprising
of over 206,000 people have been affected.  In addition, 100,615 dunums of
Palestinian cultivated land has been left on the western side of the
"fence" and out of 51 communities isolated from their lands by the
"fence", 25 reported that residents had no access to their land, 4
communities reported restricted access to their lands and 13 communities
reported still having regular access to their lands.  In addition,
Palestinian communities have been denied access to at least 50 ground-water
wells, 200 cisterns and wells ranging from 10 to 500 m which are now located
west of the "security fence".  These figures
[56] are
devastating, yet they refer only to part of Phase One. 

 

These facts also
undermine various Israeli claims regarding the "security
fence".  Israeli officials have stated that Palestinian farmers will
be granted normal access to lands located to the west of the "fence"
through specially constructed gates.  However, the above details illustrate
that already many communities have been totally denied access to their
lands.  The term "security fence" itself is misleading; in many
areas, such as around Qalqiliya, the "fence" is an 8m high concrete
wall coupled with additional barriers, roads and fences.  For most of its
length, the "fence" consists of several parallel wire fences,
including electrified fences, as well as any combination of trenches, roads,
barbed wire barriers, cameras, trace paths for footprints, military posts and
buffer zones.  The "fence" will span a width of
70-100m.  

 

Current discussions
underway in Israel surround the re-routing of the fence to circumvent larger
Israeli settlements, such as Ariel, Immanuel and Kidumin
.  Inclusion of these
settlements to the west of the "fence" would re-route the trajectory
up to 16km within the West Bank territory.  As such discussions continue,
the impact of the "security fence", including the immediate humanitarian
consequences, and the longer term impact on sustainable development and the
viability of the future Palestinian state, continues to broaden. The economic,
social and political consequences in the long-term affect the wider population
of the OPTs, as well as those in the communities along the fence’s
trajectory.  Thus the "fence" also reflects a wider policy of
"voluntary transfer"; implementing a range of military and political
measures and activities which collectively render normal life in the OPTs impossible,
thereby "encouraging" Palestinians, primarily those with the
resources to do so, to leave the area. 

 

Funding the Fence?

The "security
fence" and its impact on Palestinian communities, particularly in respect
of the humanitarian consequences, have been much discussed within the
international community, the diplomatic community and the United Nations, and
other humanitarian agencies.  Many existing donors are re-evaluating their
contributions to the OPTs to include specific assistance for the communities
directly affected by the "security fence", allocating millions of
dollars for assistance and development projects in these areas.  However,
this massive focus on provision of humanitarian assistance in these affected
areas raises again the question of the donor community funding the Israeli
occupation and its expansion
[57]
Whilst these recent donations are essential to alleviate the immediate
humanitarian impact of the "security fence", they are merely
temporary measures which do not constitute a long-term solution to the situation. 
The provision of these humanitarian services by the international community, in
particular by the High Contracting Parties to the Convention, cannot in anyway
replace the clear legal obligation on the High Contracting Parties to intervene
to end the violations of the Convention perpetrated by Israel, including the
construction of the "security fence" in its current trajectory. 
The priority for the High Contracting Parties must be the enforcement of the
Convention, and therefore the immediate dismantlement of the "security
fence", and a halt to the violations, including grave breaches of the
Convention, perpetrated both in the context of the construction of the
"fence" and in general throughout the OPTs.   Humanitarian
assistance is essential and must continue, but without simultaneous concrete
action to halt the violations which cause the deteriorating humanitarian
situation, such measures may prove largely counterproductive.

 

Manipulation of Borders
in the Gaza Strip

This expansion of
territory through manipulation of internationally-recognised borders is not
new; the "security fence" in the West Bank is a larger
scale version of a model
already employed in the Gaza Strip.  The Israeli military initially
constructed a system of fences and walls along the border between the Gaza
Strip prior to the Intifada.  This fencing, ostensibly constructed on
security grounds
 to restrict movement from the Gaza Strip into
Israel, was largely constructed on the 1967 border with Israel.  However,
since its establishment and particularly since the beginning of the current
Intifada, the Israeli military has continued to raze large areas of land all
along the Gaza side of this fence to establish a "buffer zone" to
increase "security" along the fence.  Access to this land,
mostly agricultural land, has since been denied to Palestinians through
sniper-fire or arrest and detention, and thus has been 
de facto expropriated
by the Israeli military.  These no-go areas extend from between 200-500
meters from the 1967 border into the Gaza Strip for the length of the border
from Beit Hanoun in the north to Rafah in the south.  Thus, the 1967
border with Israel has effectively been pushed back into the Gaza Strip by up
to 500 meters.  In addition, since the beginning of the current Intifada a
concrete wall has been constructed along the southern border with Egypt which
is controlled by the Israeli military.  Again, the construction of this
wall has been accompanied by large-scale clearing of Palestinian homes on the
Gaza side of the wall.  The construction of this new wall and its
"buffer zone" has pushed the 
de facto border back
into Gazan territory by up to 500 meters.

 

Territorial expansion
through appropriation of Palestinian homes and land is clearly a long-term
policy.  However, the broadening of its implementation has significantly
escalated the progression of this policy in the last three years.  Through
the land-razing and property destruction policies; the construction of Israel’s
"security fence"; the expansion of settlement road networks and
existing settlement boundaries, as well as the establishment of new
settlements; the territorial contiguity, and therefore viability, of any future
state of Palestine is being gradually and permanently eroded.

 

 

 

Impunity

 

Despite the ongoing
systematic and widespread violations of this Convention and other international
treaty and customary international law, by which Israel is bound, instances of
accountability for those responsible for violations are rare.  As detailed
earlier, the Israeli High Court of Justice has consistently failed to hold the
state and the military accountable under international law.  At lower
levels, investigations by the Israeli authorities into complaints submitted on
behalf of Palestinian and other victims of unlawful actions by the Israeli
military and other state and non-state agents, are also rare and generally fail
to reach international standards on thoroughness and impartiality. 
Furthermore, despite repeated complaints submitted on behalf of Palestinian
victims by PCHR, including in respect of unlawful killings and injuries,
property destruction, unlawful arrest and detention, torture and ill treatment,
no victim in these cases has been granted effective reparation, including
investigations, prosecution of those responsible and compensation, in
accordance with international legal standards. 

 

However, in this
memorandum PCHR wishes to express its particular dismay at the continuing
impunity afforded to the Israeli government and military by the High
Contracting Parties to this Convention.  All of the High Contracting
Parties, including those not directly involved in the current conflict, have
both general and specific obligations with respect to the implementation and
enforcement of the Convention.  As discussed below, the ongoing failure to
act, to hold Israel accountable according to its own obligations as the
Occupying Power, constitutes a breach of these obligations.

 

The Article 1 Obligation

Common article 1 of the
Geneva Conventions confers not a right to
 "respect and ensure respect…in all
circumstances"
, but an absolute obligation[58]
As Pictet’s Commentary clarifies, 
"…in the event of a Power
failing to fufill its obligations, the other Contracting Parties (neutral,
allied or enemy) may, and should, endeavour to bring it back to an attitude of
respect for the Convention"
 and that "The proper
working of the system of protection provided by the Convention demands in fact
that the Contracting Parties should not be confined merely to apply its
provisions themselves, but should do everything in their power to ensure that
the humanitarian provisions underlying the Conventions are universally
applied"
.  The provision, "in all
circumstances"
 also serves to eliminate any pretext for refusal
to respect the Convention based on the character of the conflict, including as
an occupation.

 

The article 1 obligation
can be separated into the obligation to "respect" the Convention and
the obligation to "ensure respect" of the Convention.  This
first obligation corresponds to the specific responsibilities conferred
directly on the High Contracting Parties, as non-parties to the conflict, such
as the obligation to search for and prosecute those responsible for grave
breaches of the Convention contained in article 146 (see below).  The
second category would include the responsibility to ensure that the Convention
is respected by others.  In this context, the Convention does not provide
further detail but the obligation should be interpreted to prohibit not only 
active participation
or encouragement of violations of the Convention
[59],
but also
inaction on the part of the High Contracting Parties.
 Article 1 therefore imposes an obligation to 
actively ensure
respect for the Convention in all circumstances, thereby rendering a failure to
act a breach of the obligation.  Thus, article 1 makes the protection of
civilians the responsibility of all states, irrespective of their participation
or non-participation in the conflict.

 

Clearly, Israel has
unequivocally and consistently failed to adhere to its obligations as the
Occupying Power
 vis a vis the Palestinian
civilian population.  This situation has prevailed for the last 36 years
but has been particularly acute since September 2000.  The High
Contracting Parties are fully aware of these facts, including through provision
of information by PCHR and other human rights organizations operating in the
region, as well as UN agencies and other governmental organisations.  In
the full knowledge of Israel’s consistent disregard for the Convention, responsibility
for ensuring Israel’s implementation of the Convention falls with the remaining
High Contracting Parties.

 

Enforcement Mechanisms

It is on the basis of
article 1 that PCHR has consistently called for the re-convening of a
conference of the High Contracting Parties to decide upon measures for securing
Israel’s respect for the Convention in the OPTs.  The
 absence of a specific
enforcement measure in the Convention does not detract from the obligation
itself.  Within the context of article 1, PCHR considers that in actively
ensuring Israel’s respect for the Convention the High Contracting Parties have
a range of measures available.  Clearly, all measures taken must be within
the framework of international law and must not be arbitrary.  Measures
should be taken in a gradual and graduated manner with each step evaluated for
its effectiveness in relation to the goal of ensuring Israel’s respect for the
Convention.  In the context of Israel, the following measures are
particularly pertinent, and could be implemented in a graduated manner;
non-renewal of trade privileges or agreements; reduction of suspension of public
aid to the offending state; restrictions and/or ban on arms trade, military
technology and scientific cooperation; restrictions on exports and/or imports
to and from the offending state; investment freeze
[60]

 

The most consistent call
from Palestinians in the context of enforcement mechanisms has been the demand
for an international protection force.  PCHR reiterates this demand, and
calls for an international protection presence with a clear mandate to oversee
the enforcement of the Convention in the OPTs and, in the longer-term, to also
oversee the implementation of the various UN resolutions
[61] regarding
the withdrawal of the occupation forces and the dismantlement of the
occupation.  In light of the escalating violence perpetrated against
Palestinian civilians by the Israeli military throughout the OPTs, such a
protection presence has become evermore necessary.

 

All of these measures
have been highlighted for consideration before but none have as yet been
implemented.  PCHR asserts that the consistent failure of the High
Contracting Parties to take action to "ensure" Israel’s respect of
the Convention constitutes a breach of this article 1 obligation. 

 

Article 146 Obligations

Article 146 confers
specific obligations on High Contracting Parties in respect of accountability
for grave breaches; High Contracting Parties are specifically required to enact
domestic legislation to provide effective penal sanctions for those responsible
for grave breaches; to search for and to prosecute 
"persons
alleged to have committed, or to have ordered to be committed" 
grave
breaches, or to hand the individuals over to another High Contracting Party for
prosecution.  The High Contracting Parties are also obligated 
"to
take measures necessary for the suppression of all acts contrary to the
provisions of the present Convention other than the grave breaches defined in
the following article [article 147].”

 

The second part of
article 146 reiterates the obligation contained in article 1.  Again no
specific mechanism is defined, but rather the High Contracting Parties are
obligated to takenecessary measures to suppress all other
violations of the Convention.  However, to date, despite a number of
complaints submitted to the other High Contracting Parties in respect of
alleged grave breaches perpetrated by the Israeli military against the
Palestinian civilian population in the OPTs, no High Contracting Party has as
yet effectively fulfilled the obligations detailed in article 146 specific to
both search for and prosecute those responsible for grave breaches or for the
suppression of other violations of the Convention. 

 

 

This ongoing failure of
the High Contracting Parties to fulfill their legal obligations, including in respect
of articles 1 and 146, not only constitutes an infringement of the Convention
itself, but, as PCHR has repeatedly stated
the ongoing impunity
afforded to Israel serves also to encourage further violations of the
Convention, including grave breaches
.

 

PCHR therefore calls
upon the High Contracting Parties to
:

·                  Immediately
convene a Conference to discuss options to enforce Israel’s respect of the
Convention
.

·                Immediately
dispatch an international protection force
with a mandate to
oversee implementation of the Convention and other international law relating
to the withdrawal of the occupation
.

·                   Take
further graduated steps to ensure Israel’s compliance with the Convention
and international humanitarian and human rights law in general
.

·                    Comply
with the obligations detailed in article 146 of the Convention to actively
search for and prosecute, in accordance with international legal standards,
those responsible for grave breaches of the Convention.

 

 

 

 

 


 

 

[1] Israel has provided a number of inconsistent
arguments in avoiding the issue of the Convention and the responsibilities
which it imposes of Israel as the Occupying Power.  On occasion Israel has
announced that it would respect the "humanitarian" provisions of the
Convention in its activities in the OPTs but continued to refuse to accept the
de jure applicability.  However, more recently, the State and the High
Court both referred specifically to the Convention during a High Court review
of an Israeli military order which permits the transfer of Palestinians from
the West Bank to the Gaza Strip.  This military order is based on article
78 of the Convention, permitting the Occupying Power to submit a protected
person within its power to a period of "assigned residence" for
"imperative reasons of security".  In its judgment, the Israeli
High Court stated that , 
"…for the purpose of the petitions before
us we are assuming that humanitarian international law – as reflected in the
Fourth Geneva Convention…applies in our case".  
HCJ 7015/02
Ajuri v. IDF Commander.

[2] Final Statement of the Conference of the High
Contracting Parties to the Fourth Geneva Convention, Geneva, 15 July 1999 see
PCHR
Politicisation of International Humanitarian Law: An Analytical,
Critical Study of the Conference of the High Contracting Parties to the Fourth
Geneva Convention
Gaza, 2000. p.75.

[3] See conclusions of the UN Human Rights Inquiry
Commission, E/CN.4/2001/121, 16 March 2001; Report of the High Commissioner on
Her Visit to the Occupied Palestinian Territories, Israel, Egypt and Jordan,
E/CN.4/2001/114, 29 November 2000; Update to the mission report on
Israel’s violations of human rights in the Palestinian territories occupied
since 1967, submitted by Giorgio Giacomelli, Special Rapporteur, to the
Commission on Human Rights at its fifth special session, E/CN.4/2001/30, 21
March 2001.

 

[4] PCHR statistics include only the deaths of
Palestinian civilians who were not engaged in any act hostile to the state of
Israel at the time of their death.  The statistics also only include
incidents in which responsibility for the death is clear.  Palestine Red
Crescent Society estimate the current number of deaths at 2480 – see
www.palestinercs.org.

[5] PCHR documented 76 child deaths in the Gaza
Strip between 30/09/2002 and 29/09/2003 compared with 67 child deaths in the
Gaza Strip between 30/09/2001 and 29/09/2002
.

[6] 29/09/2002-27/09/2003

[7] 29/09/2001- 28/09/2002

[8] 29/09/2000 – 28/09/2001

[9] "Since Operation Defensive Shield, 6 Bills of
Indictment have been Submitted Against Israeli Soldiers for Shooting
"published in Arabic on Arabynet, the Arabic
website of Yediot Ahronot, 23 June 2003.

[10]  Cassese, AntonioExpert Opinion on
Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with
International Humanitarian Law
, p.7 (available on www.law-society.org).

[11] Article 57, 2 (a) (iii), Protocol Additional I
to the Geneva Conventions.

[12] "In addition to the grave
breaches defined in Article 11, the following acts shall be regarded  as
grave breaches of this Protocol, when committed willfully, in violation of the
relevant provisions of this Protocol
 and causing death or
serious injury to body or health
:…launching an indiscriminate attack
affecting the civilian population or civilian objects in the knowledge that
such attack will cause excessive loss of life, injury to civilians or damage to
civilian objects…"

[13] See PCHR press releaseKilling Protected
Civilians with Impunity
", 24 July 2002 at
www.pchrgaza.org.  PCHR has submitted a number of complaints on behalf of
the victims of this incident to the Israeli authorities, requesting an
investigation, prosecution of those responsible and compensation for the
victims and their families.  To date, the victims of this incident have
not received any form of reparation from the Israeli authorities.

[14] For further details see PCHR weekly reports no.
23/2003 and 24/2003 available at www.pchrgaza.org
.

[15] For further details see PCHR weekly reports no.
32/2003 and 33/2003 available at www.pchrgaza.org
.

[16] A sixth international, Thomas Hurndall was also
critically injured after being shot by Israeli soldiers in Rafah, in the Gaza
Strip, on 11 April 2003
.

[17] See PCHRImpunity for US Peace
Activist’s Death
30 June 2003, available at
www.pchrgaza.org
.

[18] Conclusions and Recommendations of the Committee
Against Torture: Israel (23/11/2001), UN doc. CAT/C/XXVII/Concl.5 and
Concluding Observations of the Human Rights Committee: Israel (05/08/2003) UN
doc. CCPR/CO/78/ISR
.

[19] Public Committee Against Torture in Israel
(PCATI
), Four years after the
High Court of Justice ruling prohibiting torture in interrogation there is
considerable use of means of torture and ill treatment in GSS interrogation
September 2003,
available at www.stoptorture.org.il
.

[20] For a detailed analysis of the practice or
torture and ill treatment see PCATI
Back to a Routine of Torture: Torture and
Ill treatment of Palestinian Detainees during Arrest, Detention and
Interrogation
 – September 2001 to April
2003
April 2003 available at www.stoptorture.org.il.

[21] See press release from the Public Committee
Against Torture in Israel (PCATI
), Shut Down the Secret Detention Facility
1391
September 2003 at www.stoptorture.org.il.

[22] Report of the Special Rapporteur of the
Commission on Human Rights, Mr John Dugard, on the situation of human rights in
the Palestinian Territories occupied by Israel since 1967, submitted in
accordance with Commission resolutions 1993/2 A and 2002/8.  UN doc.
E/CN.4/2003/30, 17 December 2002.

[23] The Abu Hussein family homelocated in the Rafah
refugee camp near the border with Egypt, was destroyed on 2 May 2002 along with
11 other houses in an Israeli military operation.  The family then moved
into a relative’s property in the same area of Rafah refugee camp.  On the
night of 3 August 2002, the Israeli military using tanks and bulldozers, moved
into the area again and began demolishing the second family home.  No
warning was given and the family was sleeping inside when the demolition
began.  As a result nine members of the family were wounded.  The
Israeli military also fired upon neighbours who tried to rescue the family,
including the injured.

[24]Nuha Sabri Swidan al-Maqadma, 40, who was 9 months pregnant,
was killed when her house collapsed during an Israeli military demolition
operation in al-Bureij Refugee camp on 3 March 2003.  See PCHR press
release, 
8 civilians, including a pregnant woman, killed, 14 houses and
a mosque destroyed in Israeli incursion into al-Boreij camp
, no. 30/2003, 3
March 2003 at www.pchrgaza.org.

[25] See UNRWANew Shelters for Khan
Younis Homeless
15 September 2003.  UNRWA provides such
assistance only to those families who are registered refugees
.

[26]  The UN Committee Against Torture ruled in
November 2001 that Israel’s house demolition policy may, in certain
circumstances, constitute cruel, inhumane or degrading treatment or punishment
in violation of article 16 of the Convention Against Torture.  See
Conclusions and Recommendations of the Committee Against Torture: Israel.
23/11/2001 (CAT/C/XXVII/Concl.5.).

[27] As quoted in Jerusalem Post, ‘High Court hears
Palestinian’s petitions against expulsions’, 26/08/2002
.

[28] Concluding Observations of the Human Rights Committee:
Israel (05/08/2003) UN doc. CCPR/CO/78/ISR.

[29] See state response in Ajouri case as described
in High Court ruling, HCJ 7015/02 Ajuri v. IDF Commander
.

[30]  see Preliminary Findings of
the Nutritional
 Assessment and Sentinel Surveillance System for
West Bank and Gaza Strip, 5 August 2002, Care International, funded by USAID,
p.5.

[31] As of 22 June 2003 – according to PCHR
documentation
.

[32] See www.icrc.org

[33] See UNRWADeath of a UN Worker22 November 2002, available at www.unrwa.org.

[34] In one example, on 10
February 2003, a Palestinian woman resident in the Mawasi area in the southern
Gaza Strip, was forced at gunpoint by Israeli soldiers stationed at the Tuffah
checkpoint, to drink a toxic chemical liquid

[35] “Two Years of
Intifada, Closures and Palestinian Economic Crisis – An Assessment”, The World
Bank, Summary report, March 5, 2003

[36] See www.palestinercs.org for regular updates on
injuries
.

[37] Israeli military order no.1086, issued on 16
December 1992, permitted the deportation of approximately 400 Palestinians from
the OPTs, including 165 from the Gaza Strip
.

[38] See PCHR position paper on unlawful transfers
available at www.pchrgaza.org
.

[39] See article 68 regarding imprisonment or internment,
and article 78 regarding assigned residence and internment as administrative
measures

[40] See articles 64-78.

[41] Defence for Children International – Palestine Section
estimate that approximately 350 Palestinian children are currently detained in
Israeli detention facilities in the OPTs and Israel.  Many of these
children are held in appalling conditions of detention, held with adult
detainees, and many reported being subjected to torture and other forms of ill
treatment by interrogators and wardens.  See Child Prisoners Briefings at
www.dci-pal.org.

[42] Pictet, Jean ed., Commentary: IV Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
, International
Committee of the Red Cross, 1958, p.340, article 66.

[43]  Ibid p.356, article 72.

[44] A tank shell filled with dart-like projectiles
which are dispersed over a wide area.  This is an indiscriminate weapon
which cannot be directed at specific target and therefore cannot ensure a distinction
between combatant and civilian.  Its use in civilian areas therefore
constitutes a violation of the Convention.  The Israeli military have used
flechettes in the Gaza Strip since the beginning of the Intifada in September
2000.  At least 21 Palestinian civilians have been killed by flechette
tank shells.  PCHR together with Physicians for Human Rights – Israel,
petitioned the Israeli High Court on the use of flechettes, demanding that they
be outlawed as an indiscriminate weapon; see press release, 21 October 2002 at
www.pchrgaza.org.  The High Court rejected the petition on 27 April 2003.

[45] Of 124 petitions submitted to the Israeli High
Court of Justice by the Public Committee Against Torture in Israel (PCATI)
regarding denial of access to legal counsel during interrogation, none were
accepted by the High Court.  See PCATI press release, 
Four years
after the High Court of Justice ruling prohibiting torture in interrogation
there is considerable use of means of torture and ill treatment in GSS
interrogation, 
4 September 2003, available at www.stoptorture.org.il.

[46] Petition 5872/2001, Baraka v. Prime Minister, as
quoted in
 Petition 8990/2002, PHR-Israel and PCHR v. Head of IDF Southern
Command and the State of Israel.

[47] Statistics provided by UNRWA, as quoted in
Amnesty International
Israel and the Occupied Territories,
Shielded from Scrutiny: IDF Violations in Jenin and Nablus
November 2002.

[48] See PCHR reportViolations of
International Human Rights and Humanitarian Law by the Israeli Military in Beit
Hanoun, 15 May
 – 30 June 2003, available at
www.pchrgaza.org.

[49] The total area of greater al-Sayafa, including
the two settlements Eli Sinai and Dugit which were constructed in 1982 and
1990, is approximately 8000 dunums
.

[50] As stated in the response of the State
Prosecutor to a PCHR petition to the High Court regarding
land-confiscation.  See HCJ 9252/2000, HCJ 9515/2000 and HCJ 3848/2001 –
Sakar, Wahedi and Bashir v. State of Israel.

[51] UN doc E/CN.4/2003/5/Add.1Report of the Special Rapporteur on adequate housing as a component of
the right to an adequate standard of living, Mr. Miloon Kothari
. 12 June 2002, para.9.

[52]  As of 1997, according to Israeli Ministry
of Interior and the Israeli Central Bureau of Statistics as quoted in Haaretz
New Year
Supplement:  The Price of Settlements
27 September 2003,
available at www.haaretz.com
.

[53] According to recent media reports, the Israeli
government has spent 2.5 billion NIS annually on the settlement programme in
the OPTs.  This figure does not include military expenditure but rather
includes investments in roads, housing, income tax benefits, water and
electricity infrastructure, health services for settler communities. 
These investments are estimated at more than 10,000 NIS per settler.  See
Bassok, Moti, 
Settlements cost NIS 2.5 bn a year in non-military
outlays, 
Haaretz, 23 September 2003 available at www.haaretz.com.

[54] Case Number: 3081/01 (Abu Houli v. State of
Israel).  PCHR represented two relatives of the Abu Houli family whose
land had been confiscated in the Abu Houli area in central Gaza, south of Deir
el Balah.  PCHR’s lawyers submitted a petition to the Israeli High
Court.  The above comments were taken from the State response to the
petition. 

[55] Statistics provided by ARIJ.  See www.arij.org.  For further information
regarding Israel’s "security fence" also see Palestinian
Environmental NGOs Network
The Wall in Palestine; Facts,
Testimonies, Analysis and Call to Action
June 2003.

[56] Palestinian Environmental NGOs NetworkThe Wall in Palestine;
Facts, Testimonies, Analysis and Call to Action
June 2003.

[57] See UN doc. E/CN.4/2003/30, 17 December 2002.

[58] The obligatory nature of common article 1 was
also reaffirmed by the 1986 ruling of the International Court of Justice in
 Nicaragua v. US.  The ruling
further affirmed that the obligation stems not only from article 1itself but
also as a general principle of customary international law.  See Military
and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. US,
Merits, [1986] ICJ Rep. 14 at para. 220.

[59] In Nicaragua v. US[59], the
International Court of Justice ruled the US in breach of the customary article
1 obligation for encouraging violations of the Convention.

[60] See PalwankarMeasures available to
states for fulfilling their obligation to ensure respect for international
humanitarian law
(January-February 1994),
298 Int. Rev. Red Cross 9
.

[61] See in particular UN Security Council
Resolution  242
 (adopted on 22 November 1967) which calls for the
withdrawal of Israeli troops from the territories it occupied during the course
of the 1967 war
.