Presented at the UNITED NATIONS INTERNATIONAL MEETING ON THE QUESTION OF PALESTINE: Advancing the peace process – Challenges facing the parties
Malta, 3 and 4 June 2008
1. It is a great honor for me to be here with you, and to be one of those asked to present at this conference. Meetings and conferences of the kind we are participating in over these two days are extremely important, in that they raise public awareness in the international community of the problems of the occupation and the ongoing human rights violations that it engenders.
2. My colleagues from the first panel yesterday explored the subject of the settlements, their impact on the Palestinian population, and on the territorial integrity and contiguity of the future Palestinian state. Even in this short address of mine, I must make mention of the settlements, since one cannot speak of the barrier without reference to the settlements. There is a direct link between the erection of the barrier and the settlement enterprise. One of the unstated objectives in building the barrier, which was later exposed, was to establish the settlements’ status as a fait accompli and to ensure land determination with expansionist goals. The barrier constitutes a major factor that would facilitate the existence of the settlements in the long term.
3. As noted by the members of the panel, the barrier negatively impacts the day-to-day existence of the Palestinians and severely violates their fundamental rights and freedoms. The barrier separates children and students from their kindergartens and schools. The barrier separates workers from their workplaces. The barrier dispossesses farmers of their land, and separates them from what remains of their land. The barrier separates the sick from medical treatment. The barrier separates pregnant women from delivery wards. The barrier breaks up families and separates them from their relatives; it divides communities and neighboring villages. The daily lives of almost 850,000 Palestinians have been negatively impacted, disrupted and changed beyond recognition due to the barrier.
4. The planning, construction, and policies which came with the barrier have been implemented with blatant disregard and in absolute violation of international humanitarian law and human rights law. This position is well anchored in the Advisory Opinion of the International Court of Justice in The Hague, which determined that: “The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law.”
5. The defense of the citizens of Israel needs to be carried out in accordance with international law. Not every measure is legitimate and the flagrant disregard for the rights of the Palestinians cannot be allowed. All measures taken must conform with international law and not be legitimized under the pretext of military necessity, national security or maintaining order.
6. I am attending this meeting on behalf of the Association for Civil Rights in Israel (hereafter: ACRI). ACRI is the leading human rights organization in Israel and the only one that addresses the full spectrum of rights and liberties. ACRI has played and continues to play a central role in the legal struggle against the lawfulness of the construction of the barrier. ACRI was the petitioner in a number of precedent-setting and principled petitions against the barrier, which challenged the Israeli High Court of Justice by bringing the Advisory Opinion to the fore and asking that the conclusions contained therein be put into practice.
7. The legal struggle waged by ACRI and other organizations and petitioners in dozens of petitions to the High Court of Justice challenging the route of the barrier succeeded in some cases in changing the route, and thus in easing not insignificantly the breaches to the rights of the Palestinians, and also to return some of the lands that were due to be expropriated as a result of the construction of the barrier.
8. The initial petitions against various sections of the barrier were filed by individual petitioners who had been affected, but these petitions only elicited brief rulings from the High Court of Justice. The first principled petition challenging the overall project of the barrier was filed to the High Court of Justice in 2003 by HaMoked: the Center for the Defense of the Individual, but the Court never held any hearings on this petition, nor did it discuss any of the principled claims brought forward by the petitioners.
9. It was only in its ruling on the Beit Surik case in 2004, issued a week before the ICJ’s Advisory Opinion, that the Court provided a detailed ruling relating to the principled claims; it determined that the decision to construct the barrier was based on legitimate military needs. The route of the barrier in the area under review was found to be disproportionate due to its impact on the daily fabric of life of the local Palestinian population, and the State was accordingly ordered to change the route. However, the justices ignored the question of the illegality, in international law, of the settlements that Israel established in the West Bank. Thus, the High Court did not examine the effect of this illegal action on the legitimacy of the considerations underlying the construction of the barrier.
10. Thereafter, a number of petitions challenging the route of the barrier were heard before an expanded panel of justices, including two petitions filed by ACRI concerning the route of the barrier in the areas of Alfei Menashe and A-Ram. In the course of deliberations on the Alfei Menashe, the Court requested that ACRI relate to the ICJ Advisory Opinion.
11. ACRI subsequently submitted to the Court an in-depth analysis of the ICJ Advisory Opinion, and challenged the route of the barrier as contrary to the principles of international law. We emphasized the illegality of the route of the barrier and the annexation of territory to the occupying power in breach of international law, and stressed the fact that the route was determined by political considerations and not security ones. We highlighted the illegality of the route of the barrier that was determined by the desire to create territorial contiguity between the settlements and Israel. We underscored the ramifications of the illegality of the settlements on the legality of the barrier. In addition, we emphasized the violations of property rights and the lack of proportionality evidenced by the route of the barrier. In its ruling on the petition in September 2005, the High Court of Justice affirmed the importance of the ICJ’s Advisory Opinion as the “interpretation of international law… done by the highest judicial body in international law” and stated that this interpretation should “be given the full appropriate weight.” Nonetheless, contrary to the ICJ Opinion, the High Court granted its de facto approval to the construction of the barrier for the purpose of protecting the settlements and including them on the Israeli side.
12. Over the years, through petitions brought before the High Court of Justice challenging the route of the barrier (in the cases of Nalin, Bi’ilin, and Tzofin, for example) and in numerous reports and publications, it has become clear that the route of the barrier was also determined by the desire to further settlement expansion, and not just to protect the existing settlements.
13. In the Alfei Menashe ruling, the Court gave its stamp of approval to the lawfulness of the barrier, and deliberations on petitions challenging the barrier thenceforth dealt with questions concerning proportionality and the scope of rights violations. Various sections of the barrier were reviewed separately to see if they accorded with the principle of proportionality.
14. In December 2006, an expanded panel of High Court justices rejected ACRI and Bimkom’s joint petition challenging the route of the barrier in A-Ram in northern Jerusalem, and found that the enclosure of tens of thousands of Palestinians behind a nine-meter high wall and cutting them off from their workplaces, schools, social services, and community networks constitutes a “proportionate” violation of their rights. Whereas the ICJ stressed the illegality of the annexation of East Jerusalem, the Court approved the barrier in the area, which was clearly determined by Israel’s desire to preserve the municipal boundary and make Israel’s annexation of East Jerusalem permanent.
15. ACRI has also challenged the barrier’s associated permit regime and “seam zone.” The seam zone refers to areas that are situated between the barrier (on the west side) and the Green Line. These areas have been declared closed military zones to Palestinians only. The movement, entry and exit of Palestinians within this area and outside it, is subject to a new legal regime: the permit regime. This area is cut off, de jure and de facto, from the rest of the West Bank. Only Palestinians who are able to prove that they are permanent residents of the closed area are allowed to stay there. Other Palestinians must prove a practical need in order to gain a permit to enter this territory (through long and exhausting bureaucratic procedures, and even so they are not always granted). Palestinians are not permitted to move to live in these areas. On the other hand, Israeli and even tourists are entitled and able to enter those areas in an unrestricted fashion, and are even allowed move their places of residence there. Following the completion of the barrier, the permit regime will apply to an area encompassing 325,000 dunams of land (5.9% of the West Bank), and 238,000 Palestinians will be trapped in enclaves created by the barrier.
16. This regime has caused real concern that landowners will lose their rights to their property due to their failure to reach them or on some other pretext. In general it could be a reason over which they have no control, such as their access being blocked by the army or the settlers. Below I will provide excerpts from the
Shadow Report submitted by ACRI to the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) in January 2006:
“The permit regime has turned the lives of Palestinians living near the separation barrier, particularly those who make a living from farming, into a bureaucratic nightmare, and severely infringes their rights to live in their own homes, to enjoy basic services such as education, health and sanitation services; it also violates the right to pursue a livelihood of those Palestinians who live on the other side of the separation barrier.”
17. Israel’s High Court of Justice has also described the permit regime as “labyrinthine, complex, and burdensome.”
18. UN Special Rapporteur, Professor John Dugard, has drawn attention to the debilitating impact of the permit regime:
“Those living within the Closed Zone have difficulty in accessing family, hospitals, schools, markets and employment within the West Bank. Those living on the West Bank side of the separation barrier require permits to access their own agricultural land. Whereas in previous years such persons were mainly refused permits for security reasons, today it appears that permits are mainly denied when the owner or user of land is unable to provide convincing evidence of ownership or title to the land. A landowner applying for a permit to access his own land must submit a land registration certificate… [but] the demand for proof of land ownership or title to land is often an insurmountable obstacle.”
19. We have witnessed a phenomenon of internal migration and moving of residents from within this area to nearby villages outside the seam zone. This phenomenon constitutes forced transfer of Palestinian residents, which is expressly prohibited under international law. A November 2007 report published by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) described this phenomenon: “some 29 communities reported that households have left because of the barrier, representing about 1,200 households, or three percent of the population surveyed. As reported by respondents in 36 communities, heads of households have also left to seek employment elsewhere in the West Bank, representing about 1,100 additional individuals.”
20. The serious disruption of the lives of Palestinians could set into motion a process described by the Special Rapporteur as the “de-Palestinization of the closed zone”:
“Many persons whose land is adjacent to the ‘closed zone’ find refused permits, closed gates and destroyed homes too much to bear. This explains why Palestinians are gradually leaving land and homes that they have occupied for generations… The neglect and abandonment of land will allow the Israeli authorities to seize the land under the terms of an old Ottoman law and to hand it over to the settlers.”
21. In light of the severe ramifications of the permit regime, ACRI submitted a principled petition to the High Court of Justice challenging the closure of the seam zone and the accompanying permit regime, and a separate petition challenging the dysfunctional operation of the crossing gates. Three years ago, my colleague from ACRI told a similar meeting to this held in Geneva about the aforesaid petition on the permit regime. The petition is still pending before the High Court of Justice, which refuses to decide on it or involve itself with our serious claims against the lawfulness of this regime and its concomitant rights violations.
22. ACRI receives many complaints every week of different kinds of violations of Palestinians’ rights in these areas. Recently we initiated an inter-organizational meeting in order to consider alternatives and tools to deal with this broad-ranging phenomenon. We as attorneys go out to these areas accompanied by our field researchers, and are shocked by the ongoing violations. Life in these areas has become unbearable, and we stand almost dumbfounded in the face of torrents of complaints and problems that are raised regarding the permit regime and the jail-like closure of the seam zone.
23. ACRI, along with other human right organizations and private attorneys, have almost exhausted the options of the legal redress of the barrier issue within the Israeli legal system. The Israeli High Court of Justice has said its piece, ruling that the military commander is authorized to order the construction of the barrier and refusing to address the lawfulness of the settlements. The single option that remains for those seeking the Court’s remedy is the altering of the barrier’s course from this hill to the next, or from this valley to that ridge.
24. The justices of the High Court of Justice are positioned in the center of the Israeli public consensus and do not dare or care to venture outside this. The Court is not active in any matter related to the defense of the human rights of Palestinians, let alone the advancement of those rights. It has therefore become clear that the legal remedy and resolution to the issue of the barrier will not come from the Israeli High Court of Justice or the Israeli legal system.
25. This is why it is so important that the international community is mobilized to exert pressure on Israel to implement the advisory opinion and fulfill its obligations under international conventions, international humanitarian law and human rights law.
26. I would like to take this opportunity to thank the organizers of this distinguished gathering for their efforts in planning and implementation. I would also like to thank you for your participation.
