May 2021 witnessed pronounced violence and clashes throughout the Occupied Palestinian Territories (‘OPT’) including East Jerusalem, as well as Gaza. The protests around the neighbourhood of Sheikh Jarrah and Al-Aqsa Mosque, in particular, were severely repressed, leaving about 200 Palestinians wounded. In response, over 4,000 rockets were fired by Hamas’s military wing in the direction of Tel Aviv. Many were intercepted by Israel’s effective (and expensive) interception system known as the Iron Dome, with few causing damage and resulting in 12 civilian deaths. Subsequent airstrikes in the Gaza strip targeting Hamas officials left houses demolished, hundreds of Palestinians injured, and at least 230 killed, including also 58 children. Sadly, the events took place during the Muslim holy periods of Ramadan and the celebration of Eid. The events have been described as ‘grave’ at the Special Session of the Human Rights Council. This article explores the implications of these events under the international law regime.
Responsibility for human rights violations
At this stage, it is difficult to adopt a balanced approach towards this conflict and maintain that both sides are equally responsible for it. Surely Hamas can be blamed for the indiscriminate targeting of civilians (and in fact, the investigation recently initiated by the prosecutor of the International Criminal Court includes violence perpetrated not only by the Israeli military but also by Hamas and other Palestinian armed groups). Yet Israel encourages strategies of exclusion and discrimination to an astonishing degree. This is in addition to international crimes that might have been committed in the context of occupation. The construction of settlements in the West Bank and the forced expulsion of Palestinians for example constitutes a serious violation (grave breach) of Geneva Convention IV 1949, which deals with the obligations of the occupying powers. The same applies to the violence employed by Israeli authorities during the 2018 Gaza protests that entailed mass casualties of civilians, including women and children, as noted by Human Rights Watch and also by the former UN Commissioner for Human Rights.
Responsibility for human rights law violations, however, is separate from individual accountability under international criminal law. Palestinians residing in the OPT are generally described as second-class citizens in a number of UN reports and findings of UN Commissions of Inquiry. They are subject to a formal regime of persistent discrimination, arguably bearing the hallmarks of apartheid. The enclaves of the West Bank are very much resembling the bantustans of the South African apartheid era, which consisted of several unconnected enclaves with the aim of concentrating there only black South Africans. Gaza in particular has been described by the UN Secretary-General himself as ‘the world’s largest open-air prison‘. The situation in the West bank is equally alarming. According to a 2015 report of the UN Secretary-General, for example, ‘80 per cent of unauthorized outposts have been constructed partially or entirely on privately owned Palestinian land’.
There are reportedly today between 600,000 and 750,000 Israeli settlers living in at least 250 illegal settlements (130 official, 120 unofficial) in the occupied West Bank and East Jerusalem, with settlers comprising about 20 per cent of the population. Unauthorized construction is equally tolerated by the authorities, if not fully encouraged, as many of these settlements are legitimized retrogressively by the adoption of retrospective laws on urban planning. This comes in sharp contrast with forced transfers and shrinking of Palestinian homes, livelihoods, businesses, and identities, and the high rate of demolitions of Palestinian houses. According to a report released by the UN Office for the Coordination of Humanitarian Affairs, in the first three months of 2021 alone, Israeli authorities demolished, forced people to demolish, or seized close to 300 Palestinian-owned structures across the West Bank, including East Jerusalem, displacing 450 people, including 246 children. Forced evictions have been taking place under Israeli military orders, and most often with overt police presence. As of today, a number of cases are pending before the Israeli Supreme court, but only rarely is the outcome favourable to Palestinians.
Other examples of severe discrimination (and arguably discreet apartheid strategies) under human rights law include the practice of unregistered children and teens in Jerusalem; the arbitrary manner by which Palestinian citizenship and residency status may be easily revoked; and exclusion from socio-economic rights and social welfare (and unfortunately also discrimination even in the administration of Covid-19 vaccines).
Moreover, Israel encourages strategies of exclusion of Palestinians from education, entertainment, cultural and artistic life, as well as from maintaining and safeguarding their distinct ways of life. NGOs report impunity and lack of investigations also in violence perpetrated by settlers. Yesh din for example reports 91% of all investigation files in relevant crimes perpetrated by settlers were closed without an indictment. Only rarely do cases amount to appropriate investigations, in cases involving extremely high degrees of violence, as in the Duma arson case. More subtle violence, including attacks targeting livelihoods, livestock, economic and cultural life, is typically overlooked. An example is the practice of uprooting or burning of olive trees in Palestinian villages, which is an attack not only to agriculture and commerce but also the Palestinian cultural identity.
The route of the Palestinian wall
In the West Bank discrimination is largely facilitated also by the route of the Palestinian wall. According to the detailed findings of the independent international Commission of inquiry on the 2018 protests in the OPT (2019 UN Report), ‘the wall is traced in such a way as to include the great majority of the Israeli settlements in the OPT, including East Jerusalem’, excluding Palestinian communities from ‘major services centre for health, education, markets and trade’. What starts as segregation may evolve into ‘an institutionalized system of racial domination’, as Professors Dugard and Reynolds have explained elsewhere.
Israel however rejects the applicability of international human rights law in the OPT, and consistently maintains the argument that humanitarian law (i.e. the laws of war) is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip. It further continues to exclude the assessment of human rights issues in the OPT from the scrutiny of international human rights bodies (for example, from the process of periodic reporting before the UN Human Rights Committee). Most strikingly, amidst a very heated situation in the OPT and the occupied Golan Heights, Israel was absent at the presentation of all three reports presented in March 2021 by the High Commissioner for Human Rights.
Whether or not human rights law is relevant in the OPT has been already widely commented upon, and there is no point in reiterating this here. Authors such as the Israeli lawyer and pro-Palestinian activist Sari Bashi, for instance, have thoroughly explained why occupation of such a prolonged nature cannot be achieved by reference to international humanitarian law alone – in the wording of the President of the Red Cross, the situation in Palestine ‘perhaps the most protracted and entrenched humanitarian situation in the region’. In its 2004 Advisory Opinion on the legal consequences of the Construction of the Palestinian wall, the International Court of Justice also detailed thoroughly the applicability of major human rights treaties that Israel has signed and ratified in the OPT. It also found that most part of the Wall is illegal under both human rights law and international humanitarian law.
The primary yardstick in understanding the underlying reasons for the flare-up and escalation of violence in the OPT and East Jerusalem is and should be therefore international human rights law. Under international human rights law, States must ensure that all rights are offered free of discrimination to all persons on territory under their control, including the right to an adequate standard of living, access to public goods and services, such as access to clean water, and sufficient electricity, without any doubt. In turn, the guiding principle in interpreting human rights law is no other than the Palestinian’s people right to self-determination, enshrined in common article 1 of two major treaties that Israel has signed and ratified (the ICCPR and the ICESCR). Surely the scope of self-determination is not always clear. People whose rights are being recognized by the international community, however, yet constantly denied and side-lined, should at a minimum benefit from at least the core of this right. This is arguably no other than the right to resist lengthy and unjust oppression.
Eleni Polymenopoulou is an Assistant Professor at Hamad Bin Khalifa University, Doha, Qatar Foundation, and visiting Assistant Professor at Georgetown University – Qatar (GU-Q), Edmund A. Walsh School of Foreign Service.