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Measures for the Enforceability of State Obligations under the ICCPR: The Case of Israel

In mid July 20210, Israel underwent its third periodic review by the Human Rights Committee as a State party to the ICCPR. As in previous reviews, one of the main issues that came up in Israel’s reporting to the Human Rights Committee is the fact that Israel continues to refuse the application of the Covenant in the Occupied Palestinian Territory (OPT). During this session too, Israel continued to attempt to make the claim that it is not obligated to ensure the enjoyment of the rights of the Covenant in occupied territory. The Committee’s concluding observations as well as the questioning of the Israeli representatives conducted by the different participants in the session highlighted that Israel is under an obligation to ensure the protection of the human rights of all those who are under its jurisdiction, including namely the Palestinian population in occupied territory.

During the session Israel was asked the following question with regard to the Constitutional and Legal Framework within which the Covenant is Implemented (Art. 2):

In light of the repeated observations of the Committee on the responsibility of the State party under international law to apply the Covenant in the Occupied Palestinian Territory (OPT), regardless of any state of armed conflict (CCPR/CO/78/ISR, para. 11, and CCPR/C/79/Add.93, para. 10), and the view expressed in this regard by the International Court of Justice in its Advisory Opinion of 9 July 2004, with reference to the Supreme Court decision of 30 June 2004 (HCJ, 2056/04), what measures has the State party taken to ensure full application of the Covenant to its activities in the OPT?

Israel’s reply was that the applicability of the Covenant “has been the subject of considerable debate in recent years. In its Third Periodic Report, Israel did not refer to the implementation of the Convention in these areas for several reasons, ranging from legal considerations to the practical reality.” It proceeded,

Critical to assessing and interpreting Israel’s obligations pursuant to the Convention, is the changing reality and the recent dramatic developments on the ground since Israel’s last appearance before the Committee in 2003. These include Israel’s disengagement initiative in August 2005, involving the full withdrawal of all Israeli forces, the dismantling of its military administration and the evacuation of over 8,500 civilians from the Gaza Strip, and the rise of a Hamas-led terrorist administration, committed to violence and to the destruction of Israel. In these circumstances Israel can clearly not be said to have effective control in the Gaza Strip, in the sense envisaged by the Hague Regulations.

It is against this background that Israel is called-on to consider the relationship between different legal spheres, primarily the Law of Armed Conflict and warfare and Human Rights Law. This relationship remains a subject of serious academic and practical debate. For its part, Israel recognizes that there is a profound connection between human rights and the Law of Armed Conflict, and that there may well be a convergence between these two bodies-of-law in some respects. However, in the current state of international law and state-practice worldwide, it is Israel’s view that these two systems-of-law, which are codified in separate instruments, nevertheless remain distinct and apply in different circumstances.

The report by the Committee of Experts (previously covered here) confirmed the rejection by the international community of Israel’s position on the applicability of human rights obligations in times of armed conflict – a position that is recognised as being archaic in character and groundless in logic. It is widely accepted that a dichotomy between human rights and IHL cannot be upheld as it would go against the spirit and intent of both bodies of legal rules.

Since Israel’s report does not reference the human rights situation in the OPT or discuss its implementation of the provisions of the Covenant therein, the Committee’s response details a number of concerns it has with regard to Israel’s failure to comply with its obligations under international law. The Committee expressed its concern that the State party’s armed forces had opened few investigations into incidents involving alleged violations of international humanitarian law and human rights law during its military offensive in the Gaza Strip (27 December 2008–18 January 2009, “Operation Cast Lead”), which led to one conviction and two indictments. It further reiterated its concern that since 2003 the State party’s armed forces had targeted and extrajudicially executed 184 individuals in the Gaza Strip, resulting in the collateral unintended death of 155 additional individuals. It also noted with serious concern consistent allegations of the use of torture and cruel, inhuman or degrading treatment, in particular against Palestinian detainees suspected of security-related offences. In addition, the Committee was concerned that, despite its previous recommendation, the State party continued its practice of demolishing the property and homes of families whose members were or were suspected of involvement in terrorist activities, without considering other less intrusive measures.

As a result, the Committee recommended that Israel launch credible, independent investigations into the serious violations of international human rights law, such as violations of the right to life, prohibition of torture, right to humane treatment of all persons in custody and right to freedom of expression. The Committee also said that the State party should end its practice of extrajudicial executions of individuals suspected of involvement in terrorist activities and ensure that all its agents upheld the principle of proportionality in their responses to terrorist threats and activities.

Furthermore, it is very helpful that the HR Committee has decided to reference Israel’s failure to investigate and prosecute in accordance with international law and the recommendations of the UN fact-finding mission’s report on the Gaza conflict (the Goldstone report). It is only logical that the Committee take proactive measures for the enforcement of the State party obligations under the Covenant by urging other UN bodies to act upon Israel’s violations of international law. These actions should be taken jointly with the other conclusions that have been produced by recent UN investigations with regards to the illegality of Israel’s blockade of the occupied Gaza Strip, Israel’s violations of international law in its attacks on the Gaza Flotilla and Israel’s failure to conduct adequate and proper investigations of the alleged violations of international law that took place during its ‘Operation Cast Lead’ in the Gaza Strip.

At the face of these systematic and grave violations of the core body of IHRL, it is hoped that the Committee would respond by  asking the other State parties to the Covenant to pressure the Human Rights Council, the Secretary General and the President of the General Assembly, to ensure that the matter is brought before the Security Council. By bringing the matter before the Council, the parades of UN conclusions that all hold the same message, it is hoped, will not allow the UN system to submit to its power politics. By helping the Security Council to become gradually more aware of the overall consequential significance of the current deliberations at the Prosecutor’s office of the International Criminal Court with regards to the Palestinian declaration for the transfer of jurisdiction the Court, it will become incrementally more difficult for the Council to default on taking adequate action in accordance with this reality to ensure that international justice is upheld.

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Seeing the relevance of the discussion of extraterritorial state obligations, I would like to take this opportunity to spotlight Naz Modirzadeh’s insightful and well-written article on this topic, entitled “The Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict” (available here).

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