July 12, 2006
Editor’s note: Dugard is considered the “father” of human rights law in South Africa.
By John Dugard
Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory (OPT)
Thank you for the invitation to address you today.
At the outset I wish to make it clear that I have every sympathy for Corporal Gilad Shalit; and indeed for all Israel’s young soldiers compelled to serve in the army of an occupying power. I hope that he is well treated as a prisoner-of-war and released in good health. I hope, too, that the Palestinian prisoners in Israeli gaols will also be well treated and released in good health.
I visited the OPT in mid-June, shortly before the present crisis erupted. But then, too, the human rights situation was appalling. In the West Bank the construction of the Wall has deprived Palestinians of their land and livelihood. It has separated families and created a new class of internally displaced persons. Checkpoints have increased to over 500: they destroy the economy and humiliate the Palestinian people without serving any apparent security need. Israel is extending its control over the Jordan Valley and expanding its settlements throughout the West Bank.
Gaza was tightly controlled, in effect imprisoned, before the capture of Corporal Shalit. Artillery fire, sonic booms and targeted assassinations, frequently resulting in the death of innocent civilians, provided evidence of Israel’s control of Gazan airspace. From the sea, Israel’s naval vessels bombarded Gaza indiscriminately. And external borders were frequently closed, with disastrous consequences for the supply of food and medicines.
Both the West Bank and Gaza are impoverished as a result of Israel’s unlawful withholding of Palestinian tax revenues and the Quartet’s decision to withhold aid. Since 1994 the OPT has become heavily dependent on foreign aid. Consequently the withholding of aid, coupled with the prohibition on the transfer of money to the Palestinian Authority, its agencies and its projects, imposed by the US-controlled international banking system, in effect amount to economic sanctions. This is the first time an occupied people, whose economic welfare is supposed to be protected by the Fourth Geneva Convention, has been subjected to economic sanctions. This economic strangulation has had a severe impact on the social and economic rights of Palestinians. Over one million of Palestine’s population of 3.5 million are directly affected by the non-payment of government salaries. In addition, the private sector has also suffered. Unemployment and poverty are consequently on the increase.
Israel is in violation of countless UN resolutions and refuses to comply with the 2004 Advisory Opinion of the International Court of Justice. The Quartet has taken no action against Israel and, politely, fails to even remind Israel of its obligations under the Advisory Opinion. But now it has, in effect, imposed economic sanctions – not on the Palestinian Authority – but on the Palestinian people.
In the past week the situation has worsened.
In Gaza people are without water, food is scarce, medicines are running out. 200,000 households are without electricity due to the destruction of power plants. Over 1,500 rounds of artillery have been showered on Gaza. Sonic booms terrorize the people. Transport has been seriously disrupted by the destruction of roads and bridges. Sanitation is threatened. And external borders are substantially closed to persons and supplies.
How is one to assess the present situation? In moral terms, Israel’s conduct is morally indefensible. But I am concerned with the law. And here it is clear that Israel is in violation of the most fundamental norms of humanitarian law and human rights law.
Operation “Summer Rains”, as Israel has cynically labelled its siege of Gaza, offends the prohibition on collective punishment. It likewise violates the prohibition on “measures of intimidation and terrorism” – all contained in Article 33 of the Fourth Geneva Convention. The arrest of Hamas Cabinet ministers and legislators seems to constitute “the taking of hostages”, prohibited by Article 34. The right to life, health and food are threatened. Freedom of movement is curtailed. And Israel ignores its obligations to ensure that an occupied people have adequate food and medical supplies.
Israel portrays its military offensive against Gaza as a response to Kassam rockets fired from Gaza into Israel. Deplorable as such Palestinian actions may be, they do not warrant the disproportionate retaliation they have prompted. Humanitarian law prohibits indiscriminate attacks on civilians and civilian objects and the disproportionate use of force against civilians (see articles 51, 52 and 57 of Additional Protocol I of 1977). Here, too, Israel is in violation of humanitarian law.
Although Gaza is the focus of attention at present, one must not forget the West Bank – in particular Israel’s intended annexation of Palestinian land seized by the Wall under the guise of re-alignment or unilateral disengagement. This will violate the fundamental prohibition on the annexation of land by conquest.
These are serious accusations but the situation is serious and it does not help to conceal the full extent of Israel’s wrongdoing by the use of polite euphemisms – as is so often done in the language of diplomacy.
Two final points.
It must be re-iterated that it is not the Hamas government that is being punished, but the Palestinian people. Israel’s siege of Gaza hurts the Palestinian people. The Quartet’s economic isolation of Palestine hurts the Palestinian people. As a South African, I recall the refusal of the Western powers to impose economic sanctions on the apartheid regime because this would hurt the black people of South Africa. No such sympathy is extended to the Palestinian people and their human rights.
There is a desperate need for a minimum respect for human rights and humanitarian law. This can only be achieved by a resumption of peace talks. And this does now seem possible as a result of the adoption of the so-called Prisoners’ Document by Hamas and Fatah. There is a need for “honest brokers” in the present crisis. The EU and UN are the bodies best qualified for such a task. Whether they can act as “honest brokers” while remaining members of the Quartet is, however, questionable.